REASSESSING PROSECUTORIAL POWER THROUGH THE LENS OF MASS INCARCERATION.

• Author: Bellin, Jeffrey
• Position: Book review

LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION--AND HOW TO ACHIEVE REAL REFORM. By John F. Pfaff. New York: Basic Books. 2017. Pp. vii, 235. $27.99.

INTRODUCTION

When I was a prosecutor in the early 2000s, my office deployed a variety of diversion programs to unload provable, but minor, cases without going through a formal adjudicative process. One of the most popular programs was called the "Stet Docket." A case placed on the Stet Docket sat dormant for a period of time, usually six months or a year. If the defendant had not been rearrested at the conclusion of that period, we dismissed the case. To prevent abuse, office policy mandated that a line prosecutor could only place a case on the Stet Docket after obtaining approval from a department supervisor. As supervisors said yes sparingly, one prosecutor became something of a legend simply because he stopped asking. Risking his job, he covertly placed all manner of cases on his own personal Stet Docket, creating a parallel criminal justice universe alongside the formal process available to other defendants.

I did not realize it at the time, but my rogue colleague had provided a valuable lesson in the power of prosecutors in the American criminal justice system. Prosecutors like to be recognized for holding criminals to account. The real power they wield, however, is the unreviewable ability to (discretely) open exits from an otherwise inflexible system.

The American criminal justice system has grown increasingly inflexible in the past four decades. The magnitude of the change is eclipsed only by the resulting fallout. In 1973, the United States confined approximately 200,000 people in state and federal prisons. (1) Our imprisonment rate was not that different from Western European countries. Since then, the nation's incarceration rate increased rapidly until it plateaued in the 2000s at previously unimagined levels. (2) Currently, there are over 1.5 million people confined in state and federal prisons, with another 700,000 held in local jails. (3) "The land of the free" has become the world's largest jailer.

Americans increasingly recognize that "mass incarceration"--unprecedented incarceration levels well beyond those necessary to protect society--is a problem. Even among experts, however, few can persuasively explain how the phenomenon arose or what can be done to make it go away. These are the questions John Pfaff (4) grapples with in his highly anticipated book, Locked In: The True Causes of Mass Incarceration--And How to Achieve Real Reform. The book's provocative conclusion is that "[p]rosecutors have been and remain the engines driving mass incarceration" (p. 206). As a result, he criticizes reform efforts that focus on legislators and judges and instead advocates new rules designed to rein in prosecutorial discretion.

Even before appearing in Locked In, Pfaff's data-driven insights found a receptive audience through academic publications and prominent media outlets. David Brooks highlighted Pfaff's views in an opinion column, explaining that "[h]is research suggests that while it's true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades." (5) How did we get here? Brooks explains, "[I]t's the prosecutors." (6) Jeffrey Toobin profiled Pfaff's empirical findings in an article (7) that Ninth Circuit Judge Alex Kozinski later quoted for the proposition that "prosecutors--more than cops, judges, or legislators" are "the principal drivers of the increase in the prison population." (8) The first-ever law review article by a sitting President cites Pfaff's research as demonstrating "the important role prosecutors have played in escalating the length of sentences and can play in easing them." (9) Legal scholars routinely follow suit. (10)

While there are many valuable insights in Locked In, the enchanting empirical analysis its author relies on to conclude that the prosecutor "is the most important actor shaping prison population size" (p. 80) is flawed. As explained below, one of the two primary findings Pfaff bases his conclusion on--a finding that increased sentence lengths contributed little to mass incarceration--is strongly disputed by other empiricists. The other--a boom in state felony filings that only Pfaff has found--appears to be, at least partially, an artifact of changes in state court reporting practices. A more rigorous empirical source tracking filings over the same period finds only a 2 percent increase."

Pfaff is doing important work highlighting the problem of mass incarceration and providing empirical insights into its endless nuances. Nevertheless, his increasingly influential misdiagnosis of the problem--exonerating the primary culprits (legislators and judges) and indicting prosecutors--leads to counterproductive solutions. The prosecutorial charging guidelines and enhanced transparency Locked In champions will not reduce incarceration, but the sentencing reforms and drug-decriminalization efforts Pfaff talks down will. In fact, restrictions on prosecutorial discretion are more likely to increase, than decrease, incarceration.

The flaws in the empirical foundation for Locked In's argument that prosecutors drove mass incarceration should not come as a surprise. Existing checks on prosecutor power make it impossible for them to do what Pfaff claims. While prosecutors can unilaterally open exits, it takes a village to incarcerate someone; and when it comes to incarceration, the criminal justice village is full of figures with as much or more power than prosecutors.

The weaknesses in Pfaff's account call into question the legal academy's uncritical embrace of his findings. The answer lies in our increasingly caricatured view of prosecutors. While prosecutors are a new villain in the mass incarceration context, they are a familiar foil for academics. Prosecutors are the Darth Vader of academic writing: mysterious, powerful and, for the most part, bad. Paul Butler includes a chapter in his influential book rejecting the notion that "good people" should become prosecutors; like Anakin Skywalker, they cannot help but be corrupted. (12) On the other side are academics who think prosecutors can be redeemed but only if we tie them down with rules. (13) Across this spectrum, all agree that prosecutors "run[] the show." (14) The expression of this principle gets more exaggerated with each telling, until we have widely accepted statements like: "In many (if not most) American jurisdictions, the prosecutor is the criminal justice system." (15) My colleague Adam Gershowitz aptly summarizes the consensus, stating, "No serious observer disputes that prosecutors drive sentencing and hold most of the power in the United States criminal justice system." (16)

The uber-prosecutor theme flows through Locked In. The book informs us that prosecutors are "the most powerful actors in the entire criminal justice system" (p. 133) and have used their "almost unfettered, unreviewable power to determine who gets sent to prison and for how long" (p. 70). Pfaffs provocative thesis presents an opening to interrogate this accepted wisdom. For if mass incarceration is the defining feature of the modern criminal justice system, and prosecutors did not drive us to this point, we have greatly overestimated their wattage.

As should be clear already, this is not a traditional "book review." It is too broad and too narrow for that. It is too narrow in that it does not do justice to the many parts of Locked In that do not address prosecutorial power. Locked In includes a clever defense of private prisons, an important emphasis on the human costs of incarceration, and a powerful plea for more spending on indigent defense. I leave those (and other) topics untouched. This essay is broader than a typical book review because it has an ulterior motive. In addition to clarifying the true causes of mass incarceration, this Review seeks to leverage its critique of Locked In into an assault on the caricature of prosecutors that pervades the legal academy. With respect to this second goal, I have few illusions that commentators, steeped in decades of contrary sentiment, will suddenly agree that I am right about prosecutors. My goal here is merely to instill a recognition of the need to think more deeply about prosecutors' role in the criminal justice system and the nature of their power.

1. THE STANDARD STORY

   Locked In begins its account of mass incarceration by seeking to undo the damage done by what Pfaff labels the "Standard Story" (p. 5). This Standard Story is actually multiple story strands floating through academic and popular discourse that purportedly explain mass incarceration. Pfaff describes the two most important strands as the claims that (1) the '"war on drugs' is primarily responsible for driving up our prison populations" and (2) "increasingly long prison sentences have driven prison growth" (pp. 5-6).

   Pfaff contends that these common pontifications are misconceived red herrings, obscuring the real cause of the prison population explosion: "increased prosecutorial toughness," particularly with respect to violent offenses (pp. 6, 74). He supports this claim with two empirical findings: (1) American prisons filled through increased admissions, not longer sentences; and (2) the one variable that changed with respect to admissions was an increase in felony filings. It is from these two ingredients that Pfaff brews his provocative thesis that prosecutors--not "cops, judges, or legislators"--brought us mass incarceration.

   Locked In can be viewed as a counterpoint to Michelle Alexander's 2010 best seller, The New Jim Crow. (17) Alexander bases her acclaimed book on the premise that the War on Drugs drove the prison boom; she then draws on racial currents in the drug war to animate her thesis that racial animus powers mass incarceration. (18)...