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October 27, 2016

"Consolidating Local Criminal Justice: Should Prosecutors Control the Jails?"

The title of this post is the title of this interesting new essay authored by Adam Gershowitz now available via SSRN. Here is the abstract:

Most observers agree that prosecutors hold too much power in the American criminal justice system.  Expansive criminal codes offer prosecutors wide discretion to charge defendants with a huge number of offenses.  And stiff authorized punishments provide prosecutors with leverage to pressure defendants to plea guilty.  As a result, prosecutors hold most of the plea bargaining cards.  Massive prosecutorial power has resulted in mass incarceration.

I do not disagree with the conventional wisdom that prosecutors hold too much power. However, absent drastic legislative and judicial change, it will be nearly impossible to substantially reduce prosecutors’ power and discretion. As such, this essay offers the counter-intuitive proposal that we should give prosecutors more, not less, power and responsibility.

This essay argues that states should change their nearly uniform policy of having sheriffs run local jails. Instead, we should place local prosecutors in charge of their local jails.  While sheriffs would remain responsible for safety and discipline, prosecutors should be charged with all of the logistical responsibility for checking inmates in and out of the facilities and with handling the overall budgets.

Putting prosecutors in charge of the jails would take a bite out of the “correctional free lunch” in which prosecutors impose sentences but do not have to internalize the financial costs of their decisions.  Put simply, prosecutors would have to pay for and live with their misdemeanor charging and sentencing decisions.  Consolidating local criminal justice might also have spillover effects that encourage prosecutors to reduce the sentences they seek in felony cases.

October 27, 2016 at 11:17 AM | Permalink

Comments

Prosecutors can't control themselves and you want them to control the jails!
How funny!

Posted by: kat | Oct 27, 2016 1:01:51 PM

Actually, it's an interesting idea. Currently, prosecutors are only liable poltically for their "good conviction" rate. That is, unless there are numerous exonerations during the prosecutor's term (unlikely) or an exculpatory-evidence-withholding crisis, their political capital with a weak-minded and fearful electorate is being "tough on crime." The link between their actions and the social costs is too attenuated for the voting public to account for it.

Posted by: Fat Bastard | Oct 27, 2016 8:42:32 PM

The proposal only really makes sense to me if the prosecutor's office was more of an administrative office with lawyers working for them. Instead, it's generally an office of lawyers led by a lawyer (with some non-attorney support staff). It doesn't make sense to have lawyers doing non-attorney work solely so they feel the brunt of their work, but it might make sense to place those responsibilities under the same roof so they understand the system throughout.

Posted by: Erik M | Oct 28, 2016 1:51:10 PM

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