Ending the Prosecutorial Prison Pipeline: My Proposed Solution to Assembly Line Injustice
The criminal justice system no longer functions as a true system of justice. Although the United States has less than 5% of the world’s population, 20% of the world’s incarcerated people are in American prisons. The United States incarcerates people at 3.5 times the rate of European countries, despite similar general victimization rates between the US and Europe. This trend is most damaging to people of color; 38% of incarcerated people in state prisons are Black and 21% are Hispanic, despite the fact that those groups only make up 13 and 18 percent of the US population, respectively.
Our system of mass incarceration functions to shuffle people into prisons as efficiently as possible, often with little regard to the actual evidence of a case, especially for accused people who cannot afford an attorney. This is the majority of cases: more than eighty percent of people charged with crimes are unable to afford representation. They are represented by public defenders, “the hardest working sect of the legal bar,” who are severely underfunded and overworked. A study conducted by the American Bar Association found that public defenders’ workload in Louisiana was five times higher than the level at which a public defender could provide an adequate legal defense. It is estimated that Rhode Island’s public defender system only has the capacity to represent 36% of its cases. The American Bar Association guidelines say that each public defender should handle no more than 150 felony cases a year, but public defenders in Miami have to handle 700 cases each year. Lawsuits in Missouri and Idaho allege that the public defenders’ workload violated the Sixth Amendment to the Constitution, which guarantees the right to counsel in criminal cases.
The consequences of this reality are harsh for people accused of crimes. Many people accused of crimes sit in jail for months before they even meet their public defender. Overworked public defenders are forced to “meet ’em and plead ‘em,” a practice in which the lawyers must represent the accused people only minutes after meeting them. Plea bargains are used by the legal system to lessen the burden of overwhelming workloads and facilitate a functioning and efficient legal system. More than 90% of criminal cases, in both state and federal court, are resolved due to plea bargains. While in theory plea bargains would allow guilty people to avoid the drawn-out process of a trial and serve a lesser sentence, the reality is that efficiency is valued above justice. Innocent people plead guilty to crimes they never committed and guilty people accept plea bargains that carry unreasonably long sentences. Individuals who decline plea bargains and instead choose to go to trial face a “trial penalty,” a retaliatory policy that imposes far harsher sentences if a plea bargain is not accepted, which serves as a coercive tactic to avoid trial preparation.
On the other side of the courtroom are prosecutors. Prosecutors are the most powerful actors in the criminal justice system. They decide whether to charge a person with a crime, what charge to bring, whether to offer a deal, and the terms of the deal. As almost all cases are resolved without a trial, this makes prosecutors even more powerful than judges: “The prosecutor is the de facto law after an arrest.” In fact, John Pfaff, author of the book “Locked In,” argues that prosecutors and their increasingly punitive decision-making are primarily responsible for our current system of mass incarceration. Although prosecutors ought to prioritize justice even if that means pursuing a lesser charge or no charge at all, prosecutors’ offices simply fall short of this standard; prosecutors measure their success by their number of convictions.
Prosecutors have far greater resources to accomplish their goals than public defenders do. First of all, prosecutors are simply better funded than public defenders. For example, San Diego County’s District Attorney’s Office has 2.5 times the budget of their public defenders’ office. Funding imbalances mean that prosecutors’ offices have more attorneys and employees than public defenders’ offices. The state of Kansas funds 123.5 public defender positions and 355 prosecutor positions. San Francisco’s District Attorney’s Office has 51% more attorneys than their public defenders’ office and 396% more investigators than the public defenders. This is in addition to the fact that prosecutors may rely on the police department’s investigative resources while public defenders must investigate on their own. The lack of investigative staff for public defense means that many cases are resolved without any investigation at all. In 2019, then-Senator Kamala Harris sponsored a bill that would require prosecutors and public defenders to be paid equally. The bill was never voted on and died in Congress.
Reformers have advocated for increases in funding for public defenders’ offices, but even if legislatures chose to allocate more money for public defenders, it would not truly balance the scales between prosecutors and public defenders. Essentially, prosecutors hold all the cards: they are handed an investigation from the police department and are able to build their case as they choose. When prosecutors can review the evidence and decide how to charge an individual before the person is even able to meet with a lawyer, the scales are invariably stacked against the accused person. This does not even account for prosecutors’ dubious, but legal, methods of pressuring individuals to accept plea deals or prosecutorial misconduct, the illegal but rarely remedied actions that prosecutors take to secure convictions.
I propose a new method of reforming the criminal justice system to address the incredible power imbalance that currently exists: prosecutors’ offices and public defenders’ offices should be merged into one office in which attorneys rotate between representing the government and representing accused people who cannot afford an attorney. This proposal would solve several problems with our current system. First, there would no longer be a grievous imbalance in funding between the two sides, as the entire office would be funded with one budget. The money would be allocated so that individual cases would receive funding based the complexity of each case, with both sides receiving equitable amounts. Public defenders would no longer need to evaluate how many resources to dedicate to a case by measuring the cost of neglecting other cases. Investigators for public defenders’ offices would have the time to collect evidence before it gets lost or destroyed. The one office, one budget structure would ensure that there is not a significant imbalance in preparation or knowledge of the facts on either side.
A one office structure would also facilitate a more understanding and open-minded prosecution. If prosecutors are made to holistically view cases as more than just opportunities for convictions, I believe they will be less likely to engage in misconduct or ethically dubious methods of getting convictions. Practices such as proposing plea bargains in bad faith rely on prosecutors who believe that the accused people are definitely guilty, so the means of getting the conviction justifies the ends. If prosecutors must also act as public defenders, it will change their mindset to see accused people not as criminals, but as individuals caught up in the legal system; it will force them to consider that those individuals could be innocent, and even if they are not, they still deserve a fair process as constitutionally mandated.
The American Bar Association defines the standards for prosecutors: “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgement to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion not to pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.” Currently, our legal system is deeply flawed, with overly powerful prosecutors efficiently shuffling people, particularly people of color, into prison without proper defense from overwhelmed public defenders. I believe that a single office structure with a rotation system for prosecutors and public defenders would better deliver on the promise of the justice system.
