Originally published on AL.com
By John Pfaff, a professor of law at Fordham Law School and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform
Over the past ten years, states across the country, including Alabama, have been working to rein in their excessive reliance on incarceration and to search for ways to respond to crime that are simultaneously less costly and more effective.
While most reform efforts in Alabama and elsewhere have focused on legislative fixes, it's worth noting that perhaps the most powerful person in criminal justice policy, and criminal justice reform, gets very little attention: the local county prosecutor.
Prosecutors have almost complete control over how a case is handled. They can decide whether to drop the charges altogether or move the case forward, to charge someone with a felony or a misdemeanor, to charge someone with a crime that carries a mandatory minimum or not, to push hard to keep someone in jail pre-trial or let them remain free while the case moves forward, and so on.
All these decisions have profound impacts on prison and jail populations and on how the criminal justice system functions. And prosecutors--who are directly elected by the people in their district--make all these decisions subject to little oversight and no legal review.
It is a profoundly important job with vast and highly consequential discretion, yet it remains one that most people do not really understand, and one that few reforms have sought to regulate.
And while it can be misused, the discretion that district attorneys and prosecutors have gives them the power to immediately address many problematic issues with criminal justice that legislatures continue to struggle to fix.
A few examples:
Even as the Alabama legislature lags behind much of the rest of the country in reducing the penalties for marijuana possession, if not decriminalizing it altogether, prosecutors can do so on their own. District attorneys from New York to St. Louis to Dallas have pledged to decline to prosecute low-level marijuana cases. Not all prosecutors are comfortable with such categorical approaches, including Jefferson County (Birmingham) district attorney Mike Anderton; but that is a political position, not a legal one.
Prosecutors can also take the lead on bail reform, a topic that is getting more attention in Alabama and elsewhere as people increasingly realize that bail results in people spending time in jail for no other reason than being poor. Although judges ultimately set bail, evidence suggests that the recommendations made by prosecutors strongly influence what judges decide to do. A district attorney who fundamentally altered the bail demands made by his assistants could produce significant changes in how the criminal justice system handles the large number of poor and impoverished defendants.
And given how expansive state criminal codes are, prosecutors can also use their discretion to scale back how much time people spend in prison, and how many people are sent to prison in the first place. Prosecutors almost always have an array of statutes to choose from when filing charges against someone. Some are more-serious felonies that demand prison time while others are less-serious misdemeanors that qualify for local jail or probation; some carry mandatory minimums and others don't. Even if legislatures refuse to modify harsh sentencing laws and aggressive mandatory minimums, prosecutors can systematically select the less-severe options that have always been available to them.
Prosecutors can use their discretion over what crimes to charge, how to charge them, and what demands to make at bail hearings to scale back jail and prison populations, to improve the racial disparities that permeate our criminal justice system, to help those addicted to drugs get treatment--to push our criminal justice system in a more just direction. And all without a single legislative change, simply using the discretion they already have.
Photo: Edmund Fountain / ACLU