A Prosecutorial Duty to Seek Non-Custodial Sentencing

• Author: Mason Grow
• Position: J.D., Georgetown University Law Center (expected May 2023); B.A., Vanderbilt University (2019)
• Pages: 805-824

A Prosecutorial Duty to Seek Non-Custodial

Sentencing

MASON GROW*

INTRODUCTION

Mass incarceration, which caused the sharp increase in the American prison

population over the last five decades, explains why America today comprises five

percent of the world’s population but houses twenty-five percent of the world’s

prisoners.

1

James Cullen, The History of Mass Incarceration, BRENNAN CTR. FOR JUST. (July 20, 2018), https://

www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration [https://perma.cc/B4BK-R9E4];

Criminal Justice Reform, EQUAL JUST. INITIATIVE, https://eji. org/criminal-justice-reform/ [https://perma.cc/

VP2H-C5DF].

This widespread issue has led to many others, including prison over-

crowding. American prisons are dramatically overcrowded, with 2,068,000 pris-

oners as of 2019.

2

United States of America, WORLD PRISON BRIEF, https://www.prisonstudies.org/country/united-states-

america [https://perma.cc/J98K-R4DE] (last visited Jan. 9, 2022).

Of those in federal prison, 42.1% are racial minorities.

3

The races listed are Black, Asian, and Native American. Inmate Race, BUREAU OF PRISONS, https://www.

bop.gov/about/statistics/statistics_inmate_race.jsp [https://perma.cc/C8FX-FGR4] (last visited Nov. 6, 2021).

Of the

fifty states and the District of Columbia, twelve of them have a prison population

that is more than fifty percent Black, even though only 13.4% of the United

States population is Black.

4

The twelve states are Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi,

New Jersey, North Carolina, South Carolina, and Virginia. The Color of Justice: Racial and Ethnic Disparity in

State Prisons, SENT’G PROJECT 5 (2021), https://www.sentencingproject.org/wp-content/uploads/2016/06/The-

Color-of-Justice-Racial-and-Ethnic-Disparity-in-State-Prisons.pdf [https://perma.cc/D677-KBSS]; 2021 CENSUS,

U.S. CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table/US/RHI225219#RHI225219 [https://perma.

cc/D3Y6-UXMS] (last visited Feb. 2022).

Although many incarcerated people are in jail await-

ing trial, the majority are incarcerated because they were sentenced there.

Therefore, sentencing reform must be part of the solution.

The current ABA Criminal Justice Standards for the Prosecution Function

(“the Standards”) declare the primary duty of the prosecutor to “seek justice

within the bounds of the law, not merely to convict.”

5

These Standards also give

prosecutors full discretion in “filing, declining, maintaining, and dismissing crim-

inal charges,” and provide sixteen factors the prosecutor may consider in their

* J.D., Georgetown University Law Center (expected May 2023); B.A., Vanderbilt University (2019).

© 2022, Mason Grow. Thank you to Cynthia Karnezis, Mark Fuselier Lipnickey, Mikki Weinstein, and Grace

Mayes for their invaluable comments and suggestions.

1.

2.

3.

4.

5. STANDARDS FOR CRIMINAL JUSTICE, The Prosecution Function, Standard 3-1.2 (Am. Bar Ass’n 4th ed.

2017) (hereinafter STANDARDS).

805

decision and three that they should not consider.

6

To clarify application of these

guidelines to actual criminal cases, the Standards recommend that prosecutors’

offices “establish standards and procedures for evaluating complaints to deter -

mine whether formal criminal proceedings should be instituted.”

7

Judges, in their

turn, take prosecutors’ recommendations into consideration when determining

sentences.

8

Plea Bargaining, U.S. DEP’T OF JUST.: OFFS. OF THE U.S. ATT’YS, https://www.justice.gov/usao/justice-

101/pleabargaining [https://perma.cc/XL3M-Z9LL] (last visited Jan. 9, 2022).

This Note will argue that prosecutors should have a duty to recom-

mend non-custodial sentencing whenever feasible, and to otherwise pursue the

lowest prison sentence available, because of 1) current overcrowding in prisons,

2) the impact of current COVID-19 protocols, and 3) the societal impact of

incarceration.

Part I of this Note describes the issue of overcrowding in prisons and analyzes

the driving forces behind this problem. Part II traces the impact of COVID-19

conditions and protocols on the courts and the prisons. It also recounts lessons

that can be learned and possible steps moving forward. Part III explores the soci-

etal impact of incarceration, specifically with regard to sentencing disparities and

the social effects of custodial sentences. Finally, Part IV discusses potential steps

forward and puts forth the argument for adoption of the prosecutorial duty

described above.

I. OVERCROWDING IN PRISONS

The official capacity of U.S. prisons is approximately 2.1 million people, while

the total prison population is 2,068,800.

9

While this does not as a whole result in

a prison population over 100%, the population is not evenly distributed.

10

Local

jails in 2019 were 80.9% full, while state prisons operated at approximately

103.4% capacity and federal prisons at 130% capacity.

11

Overcrowding in prisons

causes a multitude of problems for prisoners and authorities alike. Overcrowded

prisons often do not meet the minimum space requirements according to interna-

tional standards.

12

Overcrowding, PENAL REFORM INT’L, https://www.penalreform.org/issues/prison-conditions/key-facts/

overcrowding/ [https://perma.cc/54F2-8J6M] (last visited Jan. 9, 2022).

These standards were set to create minimally humane condi-

tions for prisoners; to make imprisonment no more cruel than necessary to have

its intended impact.

13

Three of the primary causes of overcrowding are mandatory

6. Id. Standard 3-4.4.

7. Id. Standard 3-4.2.

8.

9. The exact number is 2,163,235. WORLD PRISON BRIEF, supra note 2.

10. The math here works out to 95.63%.

11. WORLD PRISON BRIEF, supra note 2.

12.

13. This according to Jeremy Bentham on the proportionality of criminal punishment, declaring that “[t]he

punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here

given.” The rules he gives bend primarily toward utilitarian goals. JEREMY BENTHAM, AN INTRODUCTION TO

THE PRINCIPLES OF MORALS AND LEGISLATION 86–88 (John Bowring ed., 1843).

806 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:805