« "Trauma and Blameworthiness in the Criminal Legal System" | Main | "Why Should Guilty Pleas Matter?" »

April 12, 2022

Could a shortage of state prosecutors put a further dent in mass incarceration?

Professor John Pfaff effectively documented the important insights, discussed in this article about his 2017 book Locked In, that more prosecutors filing more felony charges was an important contributor to modern mass incarceration.  Against that backdrop, this new Reuters article has me wondering if fewer prosecutors filling fewer charges might further contribute now to declining incarceration.  The article is headlined "Prosecutors wanted: District attorneys struggle to recruit and retain lawyers," and here are excerpts:

District attorneys’ offices across the U.S. are struggling to recruit and retain lawyers, with some experiencing vacancies of up to 16% and a dearth of applicants for open jobs, according to interviews with more than a dozen top prosecutors and five state and national prosecutors’ associations.

The district attorneys said the effects of the COVID-19 pandemic and increasing concern about racial inequities in the criminal justice system — compounded by long-standing issues with relatively low pay and burnout — have made a career as a state prosecutor a tougher sell in the past several years.

“We're seeing a prosecutor shortage throughout the country; it's not limited to large jurisdictions versus small jurisdictions,” said Nelson Bunn, executive director of the National District Attorneys Association, a trade group with 5,000 members....

Staffing shortages are affecting prosecutors’ decisions about whether to bring certain criminal cases to trial, according to Anthony Jordan, president of the District Attorneys Association of the State of New York. "We don’t get to choose the crimes that come in," said Jordan, who is the district attorney in Washington County, New York. "But if you don’t have enough people to prosecute them then you have to let certain ones go.”

Data from the Maricopa County Attorney's Office in Phoenix, Arizona illustrate that challenge.  The number of cases the office prosecuted dropped from nearly two-thirds of felonies referred by law enforcement in 2018 to under half in 2020. And the number of vacancies in the office of 338 attorneys continues to rise — increasing nearly 53% between July 2020 and April 2022.

Recent BJS data, flagged here, indicate that the national prison population has declined nearly 25% from 2010 to 2020, although a good portion (but not all) of this prison population decline has been a consequence of COVID pandemic dynamics.  Ultimately, a number of legal and extra-legal forces have been contributing to a decline in incarceration in recent years.  And Pfaff's work suggests that, if there is a sustained period of fewer prosecutors filling fewer charges nationwide, we should expect some continued declines (or at least reduced likelihood of US prison populations growing significantly in coming years).

April 12, 2022 at 11:29 PM | Permalink


One should note the types of prosecutors leaving district attorney offices. There are some reasonable, maybe "progressive" prosecutors that leave for a variety of reasons. That means, your hardline prosecutors remain and continue the same "tough on crime" policies. This means fewer cases are dismissed, reduced to misdemeanors and transferred to lower courts and more trials.

However, this is good news and maybe offices nationwide will nolle pros low level cases, leaving only serious violent cases.

Posted by: Anon | Apr 13, 2022 9:34:18 PM

A minor quibble, but could we eliminate the use of the phrase “mass incarceration” in academic settings and in the media? It is clearly a pejorative for something that is a net positive for society (It’s at least debatable).

It’s no better than the media or academia using the “Don’t Say Gay” bill.

Posted by: TarlsQtr | Apr 15, 2022 7:01:14 PM

TarlsQtr --

They use the grossly misleading phrase "mass incarceration" because if they used actual numbers instead of intentionally slanted slang, people would just roll their eyes. 99.5% of the population of the country is NOT behind bars, and the numbers have been going down for at least ten years.

The phrase is also used to divert attention from how absurdly easy it is for people to adjust their own behavior to stay out of prison: Don't steal stuff, stay away from hard drugs, be honest in your transactions and abjure violence. Follow these four simple rules and your chances of being sentenced to prison are asymptotic to zero.

Posted by: Bill Otis | Apr 16, 2022 10:41:12 PM

Tarls and Bill: What term do you think would be an accurate shorthand to note that the US has incarceration rates that are 3-4 times higher than we have had for most of US history AND 3-4 times higher than the recorded rates for most nations around the world and higher than the recorded rate of any other nation?

The prison and jail population facts are that the US incarceration rate and total incarcerated population, even though having declined somewhat in the last decade, is still massively higher than that reported by nearly all nations past and present. The term "mass incarceration" seeks to capture that basic reality, but I am open to using another term that might more fairly captures that reality.

Notably, we generally define the killing or shooting of three or more people in one spot to be a "mass killing" or a "mass shooting." Of course, three is not really a large (or mass) number, in other setting we call three a "few." Maybe you also think the adjective "mass" is a problem in that context, but I think it reasonably conveys information.

Posted by: Doug B. | Apr 18, 2022 9:50:41 AM

The issue with the “mass incarceration” formulation is that it describes the result. It clearly implies that we are incarcerating a bunch of people unjustly.

We have a “mass crime” problem which results in incarceration.

Posted by: TarlsQtr | Apr 25, 2022 10:15:49 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB