CAN PROSECUTORS END MASS INCARCERATION?

• Author: Barkow, Rachel E.
• Position: Annual Michigan Law Review Book Review Edition

CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS INCARCERATION. By Emily Bazelon. New York: Random House. 2019. Pp. xxxi, 409. Cloth, $24.99; paper, $17.99.

INTRODUCTION

In her excellent book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, Emily Bazelon (1) uses the stories of two individuals to showcase the enormous power prosecutors have in a criminal case. The use of these narratives makes the book both a gripping read and a valuable primer for understanding how important local prosecutors are to the way punishment operates in America. Showing the authority prosecutors have over most aspects of punishment in America is the book's central descriptive contribution. But the book has a normative agenda as well. Bazelon argues that those seeking to dismantle mass incarceration should recognize that the power of prosecutors can be an effective lever of reform. She argues that by electing prosecutors concerned about mass incarceration, we can start to shift course away from tough-on-crime rhetoric that in reality does a poor job keeping people safe and move toward policies that actually work. I agree wholeheartedly with Bazelon's descriptive claim that prosecutors are critical actors--probably the most important actor, if we had to choose just one--in administering criminal justice policy in America. I also agree that we would do well as voters to select prosecutors who understand what really works to fight crime and therefore know that mass incarceration is not the answer. Electing prosecutors committed to decarceration is an improvement over the status quo, and it should be a vital part of any reform agenda.

To the extent Bazelon and I diverge, it is only about how optimistic we should be about this movement transforming the landscape. (2) Bazelon believes that "[t]he movement to elect a new kind of prosecutor is the most promising means of reform ... on the political landscape" (p. 296). Bazelon could well be right, but for that to happen, these progressive prosecutors will have to successfully achieve key institutional reforms. Critically, that includes imposing real checks on prosecutors themselves (reform-minded or otherwise). Indeed, a key metric for identifying whether a prosecutor is, in fact, a real reformer, as opposed to someone who is just seeking a convenient label as a progressive, is whether or not they are actively pursuing reforms that limit the leverage they have in criminal cases, such as seeking the elimination of mandatory minimum sentences, promoting open-file discovery laws, pursuing the end of cash bail and the dramatic curtailment of pretrial detention, accepting limits on their use of state-prison resources, pushing for judicial discretion in sentencing, advocating for robust second looks of sentences by actors other than prosecutors, and downsizing their offices. For these prosecutors to achieve real reform, they will need not only to advocate for these positions but also to help achieve their realization--and that is no small task given the entrenched opposition to all of these ideas, including from prosecutors within their own offices.

This Review will proceed in three parts. In Part I, I will explain why Bazelon is right to focus on prosecutors as key actors under the current regime. While scholars have documented the enormous role prosecutors play in virtually every aspect of criminal law's administration and how that leads to the mass incarceration we currently have in America, (3) Bazelon's book stands out for its ability to make this connection vivid and comprehensible to an average reader with no legal training or deep policy expertise. The two central stories are gripping, and you cannot help but want to learn more about the law and policies that shape these tales.

In Part II, I will explain why I have less optimism than Bazelon does about using prosecutor elections as "a shortcut to addressing a lot of dysfunction" (p. xxx). I think electing reform-minded prosecutors is a valuable step, and I do not mean to shortchange what some of the people in these positions have already accomplished. Many newly elected progressive prosecutors have already achieved laudable results and have done so in environments where change was not feasible through other means. But even with their gains, it is important to note that we are a long way from curbing mass incarceration and that their advances are not necessarily shortcuts but rather incremental steps toward the more radical changes that are needed. Put another way, the unfortunate truth is that simply changing who serves as district attorney is not an easy shortcut to reducing prison and jail populations by significant amounts. (4)

That said, Bazelon and the voters and activists who have helped elect progressive prosecutors are right that this movement has the potential to be transformative. But bigger changes will happen only if these prosecutors do more than seek to exercise the vast discretion of their offices more wisely than their predecessors. They need to advocate for institutional changes, including changes that limit the leverage prosecutors have over defendants. Part III thus identifies key institutional reforms that are necessary to achieve more fundamental change. At their core, these ideas require placing significant checks on the powers prosecutors exercise instead of trying to change the type of people who occupy those roles and how they exercise their broad discretion. Part III will provide a summary of what some of those checks should look like. In addition to providing a list of needed reforms, this summary can serve as a checklist to evaluate prosecutors who claim to be progressive. If they are not putting their full support behind these institutional changes, one should question just how progressive they are.

Even if prosecutors pursue all these reforms, we should recognize that they cannot dismantle mass incarceration on their own. Real change is going to require changes in police departments, the judiciary, the legislature, and governors' offices. Most fundamentally, transforming punishment in America will require the public to change its understanding of the most effective policies for crime control. (5) Prosecutors have long lobbied for the get-tough approach as the way to address crime, (6) so this new breed of prosecutor needs to take the lead in explaining why punishment is not the answer to deeper social problems that lead to crime and violence.

1. THE POWER OF PROSECUTORS

   Bazelon's book tells the stories of two individuals facing criminal charges and shows how the fate of these individuals lies with their prosecutors. In one case, an overzealous Memphis prosecutor, Amy Weirich, fails to disclose exculpatory evidence in violation of Brady v. Maryland to obtain a murder conviction in a high-profile case against a teenage girl named Noura Jackson (p. 186). Weirich is representative of the win-at-all-costs, tough-on-crime prosecutor that we have seen in counties across America.

   Bazelon contrasts Weirich with Eric Gonzalez, the district attorney in Brooklyn, whom she portrays as a prototypical example of a new breed of progressive prosecutor. Gonzalez's office allows the other central character in the book, Kevin, (7) to participate in a diversion program that would allow dismissal of charges upon successful completion, instead of pursuing more serious charges against Kevin for possessing an unlicensed, loaded gun, which would have landed him in prison for at least three and a half years (pp. xxiv, 30). Gonzalez, in Bazelon's telling, represents a different kind of prosecutor who recognizes that incarceration does little to benefit society, and instead increases the risk that someone will commit more crimes when they are released.

   Through the stories of Noura's and Kevin's cases, Bazelon vividly shows how prosecutors hold the keys to someone's liberty. They make the critical decisions about what to charge, whether to seek pretrial detention, and what sentence to pursue. Bazelon demonstrates that courts largely remain on the sidelines for these determinations because of the deference they give prosecutors. Although judges could release pretrial defendants on bail even when prosecutors ask that they be detained, "[i]n practice, judges almost never defy the prosecution by setting low bail when a crime involves sex or violence" (p. 37). That is because most state judges are elected, and they do not want to be deemed responsible if someone released pretrial commits a crime that attracts media attention. And as Bazelon notes, "[a] judge who lets out a defendant over the objections of a prosecutor is especially vulnerable" (p. 37). So judges normally agree to whatever bail amount a prosecutor requests (p. 39). Courts typically let prosecutors use evidence obtained by the police even when there are serious doubts that evidence was legally obtained because judges tend to believe the police's version of events (p. 29). They fail to enforce prosecutors' constitutional obligation to turn over exculpatory evidence by finding most violations harmless (p. 105).

   Juries do not act as a robust check on prosecutors either. Grand juries operate as "rubber stamps," because they receive only the prosecutor's presentation of the evidence. (8) Coercive plea bargaining has stifled the checking role of trial juries. Prosecutors armed with the ability to threaten pretrial detention, mandatory minimums, and long sentences are easily able to extract guilty pleas in exchange for lesser punishments (pp. 132-35).

   With this kind of power, it is easy to see why Bazelon believes "prosecutors also hold the key to change" (p. xxvii). In her view, prosecutors "can protect against convicting the innocent. They can guard against racial bias. They can curtail mass incarceration" (p. xxvii). Because if prosecutors reform their pretrial-detention requests, charging policies, and...