How Tough-on-Crime Prosecutors Contribute to Mass Incarceration

If this nation hopes to save itself, it must reckon with the its many disgraces. This book provides yet another example of how the United States is one of the worst actors on the world stage, in this case creating an incentive structure that has resulted in the highest incarceration rate in the world at enormous, and with prison sentences that are cruel and pointless and expensive, out of all proportion to the crimes committed. Thank you for writing a book about the nation we are, and not the nation we believe ourselves to be.

Let me emphasis the absurdity of criminal law practice. Client has no defense in two felony matters but a solid defense in third. Prosecutor, awarded for quantity of felony convictions, offers sentence leniency agreement (up to judge but usually will go along with prosecution) for pleas to all THREE felonies. Trial convictions in two slam dunk felonies will result in a sentence GREATER than the offer. This is criminal law today. It can get even weirder.

The 20-year old charged with illegal gun possession may have committed “a victimless crime” in a narrow sense, but isn’t this the type of “victimless” crime that threatens to transform suddenly into a murder or a grave wounding. For that matter, a young man in illegally in possession of a gun risks himself being shot either by police or another young man in illegal possession of a gun. My point is that there are the truly “non-violent” and “victimless” crimes which deserve minimal punishment—possession of illegal drugs for personal us. But there are also crimes though technically meeting this definition that ought to be punished significantly, but fairly, to protect the community. We are not told in the review how this crime was handled and that’s unfortunate.

It is very easy to point to law enforcement as the problem for incarceration, after parents have failed, and in some cases, some parents do not even try.

I worked as a prosecutor for more than three decades in Montreal. In Canada, prosecutors are not elected; therefore we push an agenda of fairness rather than harshness. We do not benefit from too many pro-prosecution decisions from our Supreme court in late years, so plea-bargaining is more often than not to the advantage of the defendant. Most of us certainly feel a reform is needed, but contrariwise to that mentioned in the article.

Yes, this is about a political polemic. The focus by the left-wing journos like Bazelton on blaming prosecutors for incarceration rates never goes past their political bias. Those who commit crimes must face the consequences or our laws will be flouted. Our laws are statements by our society about what punishment those found guilty of criminal charges should receive. Outsiders looking in like Bazelton seek to blame those enforcing the law instead of those who broke it in the first place. If someone is sentenced to incarceration, they more than most likely committed the crime. If people sent to prison are more likely to be of one race or ethnic group than others, so be it. It's on them, and there would not be a problem in the first place had they not chosen to commit a crime. It's their fault. Why should a new "diverse" group of prosecutors weaken our judicial system? What about the rest of us who simply want justice for crime victims? What about studying the lack of discipline and morality of those who are in prison?

In my day (1960s) the route to politics for prosecutors was to make marijuana busts. They focused on white college age people. Strange how things change.

As a former prosecutor, I am offended by the insinuation that prosecutors only work to further their own personal or political interests and/or do not work in the interests of justice. This statement - "In these often overlooked but incredibly important posts, we need people committed to advancing the interests of justice, not just their own ambitions" - completely delegitimizes the thousands of prosecutors who work every single day in the interests of justice. In fact, in my own experience, it is often the prosecutor and the prosecutor ONLY who works to insure justice is served. A prosecutor has two main objectives - to convict the guilty AND to exonerate the innocent. Conviction does not always mean jail or prison. Convictions come with diversion programs and second chances ALL THE TIME. It is a dangerous assumption to dress all prosecutors in the perceived greedy suit of a politician and dismiss their work as failing the justice system.

whether prosecutors or bullies, anecdote is not evidence. sigh...

I look forward to reading the book. For those who criticize the treatise as presented, understand that it is a far different viewpoint for those that have been victim to an overzealous prosecutor. There are many people in prison that would have learned a lesson without the trauma, loss of future income...with a less vigorous prosecution. I do think that they trial law as a competitive sport, they want to win, at all cost, and unfortunately the cost is severe to those who face a “win at all cost” prosecutor.

Am I imagining things, or did the New York Times just state that carrying illegal firearms is a victimless crime that doesn't merit jail time? Good to know! We'll remember you said that next time strict new gun control bills are up for consideration!

We should use prison as a way to protect the community from future bad acts by the perpetrator, not as punishment for previous bad acts. Using prison as punishment for previous bad acts inflicts a punishment on the community through increased costs and inhibits the rehabilitation of the perpetrator. And it doesnt give the victim "justice" in any sense of the word. At best its revenge.

I find it odd that the NYT and social justice warriors are trying so hard to make it appear that criminals are actually victims. I hope all these progressive new prosecutors--and Democratic Presidential candidates--will give serious thought to what it means to eliminate bail, reduce sentences and allow criminals to run loose in our communities. Who is responsible for post-release crimes committed by those not sent to jail or released early? An apology to their future victims will be of small consolation for those who are harmed; how about compensation and restitution for victims? Early release or release without bail of thousands of criminals without adequate social support services is a recipe for increased crime, and increased numbers of victims. Virtually no criminals are forced to commit their crimes; there is such a thing as free will. It's simple: Just don't do the crime if you can't do the time.

I’m all in favor of reforms to rein in abusive prosecutors and cops, but the instant that gets tied to blacks being imprisoned more than whites, everything catastrophically falls apart and we wind up with thousands more murder victims per year, as we saw with homicides increasing over 22% from 2014 (Ferguson) to 2016 (the year Trump won)

I think we need to scale back incarceration at least 4 fold, if not much more. 20% of all the people on this planet are incarcerated in America; however, we make up only 4% of the world's entire population. Go figure.

"Mass incarceration" is a mistaken and dangerous concept and term. We have UNDERINCARCERATION: "Most crimes are not reported to police, and most reported crimes are not solved. In its annual survey, BJS asks victims of crime whether they reported that crime to police. In 2017, only 45% of violent crimes tracked by BJS were reported to police. And in the much more common category of property crime, only about a third (36%) were reported.... "In 2017, police nationwide cleared 46% of violent crimes that were reported to them. For property crimes, the national clearance rate was 18%." https://www.pewresearch.org/fact-tank/2019/01/03/5-facts-about-crime-in-the-u-s/

The hard fact is that these prosecutors still often commit felonies by suppressing 'bad evidence' (it's called bad because it helps the defense) yet they are never prosecuted, then there are the judges who also are above our laws. They more often than not commit crimes more heinous than those who appear before them yet nothing ever happens. Then enter our war on drugs IF anyone will ever bother to read the definition of crimes against humanity they will find we as a nation with our current justice system are guilty. But nothing ever happens. We charge people for daring to use our courts even though it's supposed to be tax payer supported. Then the courts charge money for charging money, then if you were arrested you have to buy your clothes back like in Ft. Collins, Colorado. And why does a private corporation get to take %10 off the top for fines and bail? Why are our lives threatened if a poor person asks for a jury trial? Why do non violent criminals get hauled around in chains from head to toe? If you don't believe me ask someone who has been through the process or had someone close to them go through the process.

Right we should be soft on crime so criminals can roam the street preying upon more people. Sounds like a great idea.

Identifying the importance of prosecutors in the making of mass incarceration is important and not widely recognized. Unfortunately the review does not mention the previous work of John Pfaff in Locked In who directly points the finger at prosecutors as the true cause of mass incarceration. I have not read this book, so I do not know if the previous research by Pfaff is appropriately cited. Just based on the review I’m not sure what this analysis adds and find it surprising that this highly relevant and recent previous work on the subject was not mentioned in the review.

Adopting a "tough on crime" profile and policies is a tried and true method to remain at the helm of the criminal justice system, in the various, local, state and federal venues. Recidivist criminals make up a large percentage of the prison population. Whether they can be hel[ed, or encouraged, to alter the habits of a lifetime is an open question. Civil society requires, at a minimum, that lawbreakers be incarcerated. If there are too many for the comfort of bleeding heart liberals, so be it. Better safe than sorry.

Ever notice how seldom the phrases "public safety", "protecting the public" and "victim" never crop up in these arguments against incarceration or, in fact, ANY negative consequences for harming others?

I had the opportunity to sit on a grand jury (state). The first week were the easy cases, meaning fairly clear evidence for a true bill. Week 2 was a very difficult sexual crimes case where the victim herself sat as a witness and it would have been difficult to imagine the prosecutor unable to make the case. All weeks after that it was very troubling to me to want to indict. Increasingly, there seemed to be presentation of evidence that indicted two people at once. Meaning, that even as a lay person I could see the goal was to get the indictment and have one turn on the other. And generally speaking, in this case, all youth-oriented crimes and or non-violent and mostly black or brown. Anyway, I offered a lot of no bills which I think resorted in fewer cases throughout the weeks. Not sure

maybe she should try a 2-3 year stint as a prosecutor.

As an career prosecutor who is not opposed to reform, I disagree with Mr. Lat's implication that young lawyers become prosecutors "seeking power and prestige," and to further their own ambitions. It's an incredibly unfair way to characterize the attorneys who take up this work - the vast majority of whom seek to advance justice and protect the community. As noted, prosecutors historically have been resistant to criminal justice reform. Young prosecutors need to be taught to wield their tremendous power responsibly and ethically, and ideally, we want them to internalize the new ways of thinking underlying some of these reforms. That is less likely to happen when they are being subjected to the kinds of cheap shots contained in the last paragraph of this review.

In September 2013, the incarceration rate of the United States of America was the highest in the world, at 716 per 100,000 of the national population. While the United States represents about 4.4 percent of the world's population, it houses around 22 percent of the world's prisoners. Are we all just criminals? Or is the system screwed up?

Ms. Bazelon’s book draws back the curtain on a problem criminal defense attorneys have been aware of for a long time. It is only made worse by state laws which require judges to be elected. A savvy prosecutor can jeopardize a judge’s chances of reelection with bad publicity if the judge makes rulings that the prosecutor doesn’t like. The result is a situation where judges, looking over their shoulders at their electoral prospects, are all too often afraid to act as the neutral arbiters the system needs and become complicit in the excesses of the “tough in crime” prosecutor culture. The victims are defendants deprived of fair treatment by the justice system and the credibility of the system itself.

I am a retired Senior Deputy District Attorney & was a career prosecutor for 30 years in California (Alameda & Sonoma Counties).Have tried approx. 150 felony cases to jury verdict;including murder, rape and child molestation.Never painted with a broad stroke.Each case is different.I was called on the carpet many times for my belief.Am a wounded/decorated Vietnam Combat Veteran and did not have to pretend to be a tough guy on the backs of the accused.The two edged sword of a prosecutor is a powerful weapon.It takes maturity and, importantly, life experience.Plea bargaining is simple math.Thousands of cases and only double digit courtrooms.My oath mandated a case not be charged unless it could be proven to a jury beyond reasonable doubt.The political springboard is, generally,used by "former federal prosecutors" who spend a few years as such, rarely present a case to a jury and then extoll the tough guy image.Prof. Bazelon should have spoken to some of us in the hinterland who abide by our oath, have a grasp of the Human Condition and understand that our Society is governed by Law. It is easy to paint with broad stroke.Easier still to paint like Jackson Pollock.It is an ethical art to abstain from both.As a Combat Infantry Officer and a Career Prosecutor,my DNA has always put me where the boot hits the ground and dirt gets under fingernails.The vibrancy & colors of Life are here; not in the lecture hall or selling books.Res Ipsa Loquitor.James Patrick Casey, Esq.

In Fla, prosecutorial discretion against seeking the death penalty is limited, as Orange County state attorney Aramis Ayala learned after she announced she would not seek the death penalty shortly after her election 2 or 3 yrs ago. With minimum-mandatory sentencing, which can only be waived if the prosecutor agrees, I've always thought that the prosecutor has discretion that formerly rested with the judge. But when Ayala tried unsuccessfully to exercise discretion in favor of defendants, I realized that the real power, when necessary, lies scattered through the system. Schools were doing a far better job than our criminal justice system when the charter school movement got underway. Too bad the right doesn't get behind a charter criminal justice movement. Because FL has shown Orange County voters that their attempt to work within the existing system is highly restricted, if not futile.

The problem is that prosecutors only want to win. They are not necessarily interested in actual justice. And that’s an insidious issue. It’s all about conviction rates and high profile cases. In the meantime our country incarcerates more people than any other. That’s an astounding figure considering this is the ‘land of the free.’ I honestly do not know how some of these folks sleep at night. They know they’re not out for justice just convictions. Even worse is the fact that certain districts like the Southern District of New York have become very politicized. They take on cases that are quite frankly more about politics than justice. We have a broken justice system and everyone is ignoring that fact for some reason.

The central thesis of this book is absolutely true, and there exists quite a bit of evidence to support it. The situation exists because of politics, and probably needs a political solution.

"The basic recipe for using a prosecutor’s post as a springboard into politics required being “tough on crime,” protecting the public by putting criminals behind bars. The vast majority of state and local prosecutors in the United States are elected, and taking a punitive tack was generally considered to be the path to re-election — and, frequently, election to higher office. Prosecutors had strong incentives to be harsh rather than lenient (or merciful) when dealing with defendants, and those incentives helped shape the criminal justice system as we know it today. In the words of the law professor and historian Jed Shugerman, a scholar of prosecutors turned politicians: “The emergence of the prosecutor’s office as a steppingstone for higher office” has had “dramatic consequences in American criminal law and mass incarceration.” To which I would add that, the need for politically ambitious DA's to be seen as "tough on crime", also requires prosecutors to be very deferential to their relationships to the police in their jurisdictions, often to the detriment of maintaining a balance against overzealous and sometimes blatantly illegal police abuse of their power.

Prosecutors are still often seen as the people in the white hats, and this probably has something to do with why Americans are relatively indifferent to shocking examples of prosecutorial misconduct. Americans, conditioned to believe that prosecutors are the “good guys” assume that the good guys were just conscientiously pursuing the “bad guys.” Prosecutors are some of the most ambitious and competitive people in the country. There is no such thing as right and wrong. There is only winning and losing. That’s why it’s so common to hear the talking heads on television boasting about their “100% conviction rate” while they were prosecutors. It’s a secular version of Papal Infallibility. If a prosecutor charges you with a crime, it’s because you are guilty. A prosecutor could no more be capable of making a mistake than the Pope, and there are special interests that have a vested interest in promoting this fallacy: the government unions covering not just the police, but the armies of bureaucrats parasitically feeding off the system, and especially the army of private contractors supplying everything from commissary items to telephone service and private prison beds. The grifters with the private government contracts will never relinquish their god-given right to fleece the taxpayers.

I think the best and most simple solution to the problem is just don't commit a crime then you will not have to worry. I can't believe that nobody has ever thought of this before, maybe we should teach kids that in civilized society we follow rules and laws and if you don't you get punished to protect the rest of us from you. Just a crazy idea

American has more prisoners by far than China, India, Russia or any other nation in the history of the world, yet we aren't safe. The danger today is that we think of criminal justice reform as equalizing the sentences for crack and powder cocaine. Anyone who has spent much time in a courtroom or working with inmates at the local jail knows that public defenders are hopelessly overloaded and judges have no time for evidence and make snap decisions based on whether the offender has bailed himself out (a good man) or is in orange and shackles (lock him up). As for the jail, a third of the prisoners are mentally ill and receive no effective medical care, half are there because of substance abuse yet there is not even an AA group, and three quarters are school dropouts yet there is no opportunity for education. Our probation system is designed to catch the slightest error and send the offender back to prison. If our goal were to achieve a 100% recidivism rate I don't know what more we could do to achieve it.

Lets start by not putting people in jail for lying to law enforcement people. Micheal cohn going to jail for lying to congress is a joke. What harm is done by lying, if another party is not jailed.

I just served a a juror on a case that the sole evidence was the alleged victim's testimony and the arresting officer. To be clear this was an attempted murder charge with no weapon, injuries, witnesses outside of the victim, no circumstantial, direct, accidental or even random evidence. Basically a case of he said, she said. I was amazed when the prosecutor said he was finished presenting his case. I was so annoyed I said out loud a statement in the elevator that got me summoned to the judge and summarily dismissed. I was disgusted, how did this get past a grand jury? That evening in speaking with a friend who had served the previous year for over a month on a grand jury she mentioned that after a while they just approved whatever was placed in front of them, just to have it over, thousands of cases. Then she said that the easiest ones to just send on were the minority on minority crime. Now this was a MBA educated black woman who lived in a town of well-to-do and professional people of all races. I was shocked but their attitude was even if they did not do this crime they were as likely to do the next. The couple and I do mean couple as they were romantic until the incident were both of Hispanic origin. I am following the verdict, deliberation is this week, because I feel very certain this was an instance similar to what my friend experienced, maybe we are trying people with that lock them up, let God sort them out attitude, no evidence required.

This book looks amazing. I listen to Emily Bazelon weekly on Slate's Political Gabfest and she often uses her law background to shed light on the injustices of the justice system in this country. Emily has the curiosity and doggedness of a journalist but also brings the methodical but analytical precision of a law scholar. She likes to question everything at a time when so many pundits just dig their heels into personal ideology.