How Prosecutors Fuel America’s Mass Incarceration Problem

How Prosecutors Fuel America’s Mass Incarceration Problem


The United States leads the world in how many people we send to prison per capita. As you might expect, communities of color are disproportionately impacted by this phenomenon. The same is true in Virginia. Virginia currently has the 17th highest imprisonment rate in the nation. The prison population is also between 50 and 60% African-American, despite the population of the state being only 20% African-American.

Emily Bazelon, a legal reporter for the New York Times Magazine, has investigated the issues of mass incarceration in her new book, Charged, and she recently gave an interview published in Vox.  Her assessment of the issue shows that given our current laws, state prosecutors hold the key to the mass incarceration puzzle. For example, she highlights that

…mandatory minimum sentences turn the punishment into the charge. Charging is the job of prosecutors. Judges are not involved in that at all. That gave prosecutors a new role and a new kind of leverage. They use that leverage to induce more and more plea bargains, so you see plea bargaining go way up around this same time. We’re now at a point where, in a lot of state court systems, more than 95 percent of convictions are obtained for plea bargains.

…When you give prosecutors the power to bring such heavy charges, and you basically give them unfettered discretion in charging and plea bargaining, you make them the key decision-makers throughout the criminal justice process.

According to the Virginia Sentencing Commission, there are about 230 different ways a prosecutor could charge a crime that would result in a mandatory sentence from either a judge or a jury. Those ways to charge a crime cover about 70 different types of offenses. As Ms. Bazelon explains, this gives prosecutors enormous power in the system to force pleas or to essentially dictate the outcome of a case. She continued:

So you see prosecutors wielding this power with charging and plea bargaining. You see a shift from the judge as the neutral referee, whose job it is to be fair and even-handed — that person is no longer making the key decisions.

This pressure extends to having people plead guilty whether they are guilty or not, or whether they have a good defense or not. Facing a mandatory sentence change the calculus of going to trial even for innocent people, and results in people pleading to lesser charges to avoid the risk of receiving such a sentence.

Ms. Bazelon does address a solution: Us.

It definitely starts with local voters. When local voters rise up and decide they don’t want a “tough on crime” DA, and they elect someone who comes in and says, “You know what, I’m going to decline prosecuting all this low-level nonsense. I want to concentrate my resources on putting people who committed murder in prison, and in solving homicides.”

Having a system ordinary people can trust is key. An overly punitive system not only costs more for taxpayers, but it can make the community less safe. Ms. Bazelon summed this up by stating:

When we have this overincarcerating system, we become less legitimate in the eyes of the people who are impacted. If you lose their trust, then people don’t follow the law as reliably, and they don’t help you solve crimes.

Voters in across Virginia, and especially in Northern Virginia, will have an opportunity to decide what type of criminal system they want to have in their counties on June 11. This choice matters for justice and safety. We hope you will use the resources of CA Difference to make an educated choice and that you vote on June 11.