Selective Prosecution: My Proposed Solution to Assembly Line Injustice
Our criminal justice system is a broken system that focuses on efficiently shuffling people, particularly people of color, into prisons, rather than striving for actual justice. At the heart of this system are prosecutors: the most powerful actors in the legal system, they have a significant responsibility for ensuring that the system is equitable and fair. All across the country, prosecutors are failing to uphold the values of our legal system. They prioritize convictions over justice and prosecute cases against people of color more punitively. I believe that combining prosecutors’ offices and public defenders’ offices into a single entity and requiring the attorneys to rotate and serve as both prosecutors and public defenders would significantly improve our criminal justice system, making it both more equitable and better at fulfilling its promise of upholding a just society.
Prosecutors’ power comes from their complete control over charging decisions: they decide whom to charge, what to charge, the terms of plea deals, and whether to dismiss charges. Essentially, prosecutors act as “the de facto law after an arrest.” The judicial system should have a system of checks and balances to keep any single official from having too much power in deciding the fate of an accused individual, but over the past several decades, changes in the criminal justice system have centralized power in the hands of prosecutors. When prosecutors choose to bring charges against an individual, they typically have many different charges from which to choose, because a single action can fall under numerous different criminal statutes. For example, if someone is arrested holding a gun in New York, the prosecutor could charge them with criminal possession of a weapon in the second degree, which carries a maximum sentence of fifteen years in prison, or in the fourth degree, which has no prison time. This single choice the prosecutor makes will have a tremendous impact on the life of the accused individual.
About 95% of criminal cases are resolved using plea deals. In the plea-bargaining process, prosecutors hold all the power because they decide the terms of the deal. Prosecutors often overcharge, meaning that they charge the accused person under the statutes that carry the highest penalties or they bring more charges than they have the evidence to prove, in order to pressure the accused person into agreeing to a plea deal. When a prosecutor offers a plea deal, there is no evidence that needs to be presented or argument that needs to be made. The prosecutor acts as the judge and the jury by deciding the individual’s guilt, charges, and sentence.
Prosecutors can also choose to decline cases or dismiss charges, even if there is probable cause to believe that a crime has been committed. This is not an uncommon occurrence: by one estimate, 25 to 50% of all cases referred to prosecutors are declined without any charges filed. Often, this manifests in prosecutors giving people “second chances” by declining cases or reducing or dropping charges once proceedings have started. Prosecutors can use many factors to decide whether to bring charges against an individual, such as the seriousness of the crime or whether the accused person has a prior criminal record. This widens the disparity of people of color in prisons: one study of plea deals in Wisconsin found that “White defendants were 25 percent more likely than Black defendants to have their most serious initial charge dropped or reduced to a less severe charge; Black defendants were more likely than whites to be convicted of their highest initial charge.” A study of plea bargains in Manhattan found similar results: “Black defendants were 19 percent more likely than whites to be offered plea deals that included jail or prison time.”
Prosecutors’ unchecked expansive power undercuts the fairness of the criminal justice system. In fact, one scholar even blames our country’s mass incarceration on prosecutors and their punitive decision-making. Many academics argue that other actors in the system need to have greater checks on prosecutorial power, while some believe that prosecutors should have more power, so that reform-minded prosecutors can create substantive changes in the system. I believe that one possible solution to this problem is to combine prosecutors’ offices and public defenders’ offices into one entity with attorneys who rotate through both positions. This new framework would ameliorate the imbalance in the criminal justice system that allows for prosecutors to single-handedly determine the guilt and punishment of accused individuals.
The most pernicious aspect of prosecutorial power is that prosecutors are able to make their most important decisions in private. Choosing which charges, if any, to bring against an individual is a decision made only by prosecutors and without any outside input or oversight. A single office structure, in which prosecutors and public defenders not only work together but also rotate positions, would encourage far more discussion and understanding between the typically adversarial sides. Prosecutors who have also acted as public defenders may be more empathetic and resist overcharging just to increase the likelihood of securing a guilty plea or they may choose to charge an individual who they would otherwise let off with a “second chance.” Greater communication with public defenders early in the process could facilitate a more equitable negotiation over plea deals; if public defenders had access to the evidence earlier in the process, rather than meeting the individual they are representing just minutes before that individual accepts a plea deal, it would give the public defender a better negotiating platform from which to advocate for their client, and compel the prosecutor to choose charges for which they have probable cause. This would result in more equitable plea bargains, which is a benefit to the entire criminal justice system, and potentially even reduce mass incarceration.
Prosecutors have expansive power and vast leeway to charge individuals however they want to, whether or not those charges comport with the evidence or are distributed equitably. Combining the prosecutors’ and public defenders’ offices and requiring attorneys to serve in both positions would change how prosecutorial discretion is used. Increasing the contact between the two sides and requiring prosecutors to experience being public defenders would create a more equitable system for charging individuals with crimes and ultimately compel a more just legal system.
