"Prosecutors Are Banding Together to Prevent Criminal-Justice Reform"

The title of this post is the headline of this lengthy Nation article which carries this subheadline: "A new investigation shows that DA associations are thwarting changes to the death penalty, sentencing, and more."  My first reaction is being shocked, shocked that prosecutors oppose reductions in their power, but this story is still an interesting read.  Here is an excerpt:

District attorneys’ associations exist in most states.  They consist of dues-paying members—generally the lead prosecutors from every county or district in the state — and have bylaws, like most professional groups.  As professional organizations, they also have nonprofit status; their activities include public education and training as well as lobbying.

For the most part, these prosecutors’ associations adopt a “tough on crime” stance, advocating for legislation that would give them greater discretion to lock people up.  “They all too often act as a roadblock to significant reforms,” says Udi Ofer, director of the Campaign for Smart Justice at the American Civil Liberties Union.  “In state after state, we’ve seen DA associations hold back reforms that are supported by Democrats and Republicans alike.”

According to Fordham University law professor John Pfaff, prosecutors are the single most important factor in the increase of prison populations, because they tend to file charges even when the evidence suggests that someone should go free, and generally pursue the harshest sentence they can get.  District attorneys and county prosecutors can opt to drop charges — for example, by refusing to prosecute marijuana possession — or to favor pretrial intervention.  But Pfaff found that between 1994 and 2008, even as crime and arrest rates fell, the number of felony charges filed by prosecutors increased. From this data, he concluded that prosecutors were driving the phenomenon of mass incarceration through punitive charges and penalties.

Prosecutors have one big reason to protect harsh sentencing: Today, around 95 percent of federal and state criminal cases end in a plea bargain.  Such agreements, in which the defendant pleads guilty in exchange for a fixed sentence, avoid the time and expense of a jury trial, making it faster and cheaper for prosecutors to close cases.  And the more draconian the punishments that a prosecutor has at her disposal — high mandatory minimums, say, or the ability to charge a youthful offender as an adult — the more leverage she has to persuade someone to take a plea bargain instead of risking a trial.

In the last year or so, criminal-justice reform has topped the legislative agenda in several states, from conservative Florida and Louisiana to liberal California, and advocates for reform exist across the political spectrum, from the conservative Right on Crime, the Koch brothers, and former House speaker Newt Gingrich to the ACLU and Black Lives Matter.  In response, prosecutors’ associations have pushed legislators hard to reject such reforms.  And, in most cases, they have succeeded.