There is an adage that prosecutors are the ministers of justice.
“It’s true,” Cumberland County District Attorney David Freed said.
Prosecutors are vested with an immense amount of authority and a great deal of unfettered discretion. From who to charge, what to charge, which cases will be diverted, which deals to offer and which cases to push to trial, prosecutors have the ability to shape case outcomes in ways most other criminal justice actors do not.
For John Pfaff, a professor at Fordham University School of Law, this abundance of highly influential discretion makes prosecutors the most powerful players in criminal justice systems.
“It’s sort of remarkable to me how little attention their discretion gets,” Pfaff said. “No other person has more opportunities to use their discretion.
“Police can decide do I arrest this guy or not,” he said. “But, a prosecutor can decide do I charge him or do I dismiss the charge? Do I accept diversion or do I not? Do I charge him with the misdemeanor or the felony? Do I charge the felony with the mandatory minimum or the one without? ... It’s a huge amount of direct control.”
Pfaff said prosecutors also have the power to implement criminal justice reforms that many are lobbying state and federal legislatures to enact.
“You want to get rid of cash bail? Great, prosecutors can stop asking for cash bail,” he said. “You think we shouldn’t use mandatory minimums? Great, prosecutors can simply not charge them. You think we should legalize marijuana? Prosecutors can do what (other prosecutors) have done and say ‘OK, I’m just not going to prosecute low-level marijuana cases anymore. You can arrest them but we’re just going to drop them.’”
In his book “Locked In: The True Cause of Mass Incarceration — and How to Achieve Real Reform,” Pfaff explores the role prosecutors have played in driving up incarceration rates in America.
From roughly 1970 to the early 1990s, incarceration rates in the United States nearly tripled, growing from roughly 200,000 people locked up to more than 700,000 in the early 1990s, according to the Sentencing Project.
At the same time, crime rates also rose.
However, beginning in the early to mid-1990s crime rates in the United States began to fall and have largely continued to fall for more than 20 years.
Incarcerations rates, however, have continued to climb. In 2015 more than 1.4 million were in state and federal prison—twice as many people as in the mid-1990s when crime rates peaked.
Pfaff’s book explores what drove the out-of-sync growth in prisoners between 1994 and 2008.
“We have fewer and fewer people entering the criminal justice system, but at the same time we admit more people to prison,” Pfaff said. “We were doing more with less.”
Pfaff concludes that one of the main drivers of mass incarceration has been an increase in felony filings.
During this time period, Pfaff said, arrests were down, the likelihood of going to prison if charged with a felony remained the same and the time served in prison for most criminal convictions remained roughly the same.
However, the number of felony filings rose by roughly 40 percent.
If more people are being charged with felonies, even if the likelihood of going to prison remains the same, the sheer number of people going to prison will increase.
“Really what drives this process in an increased willingness of prosecutors to charge people with felonies,” Pfaff said.
Pfaff said as crime rates rose, the number of assistant district attorneys rose to deal with the increased work load. As crime rates fell, however, staffing levels did not decrease.
“This doesn’t seem to mean that the individual ADA sitting at his desk is anymore punitive today than in 1990 or perhaps in 1974,” he said. “We just have a lot of them. We have 10,000 more (assistant district attorneys) and less crime.”
Pfaff points to a few policy points to help achieve reform in mass incarceration.
The first is changing the way prosecutors are elected.
Most prosecutors are elected to represent an entire county, which include a large urban hub surrounded by many suburban or rural municipalities.
Much of the crime these prosecutors see comes from inside the large urban area, but most of the people who vote in local elections come from the rural and suburban areas.
Pfaff said this can put the electorate out of step with the citizenry who are facing the consequences of the criminal justice system.
He said one fix could be to have an elected prosecutor for the urban area and one for the rural and suburban areas.
“I think it’s more important to give local communities a voice,” Pfaff said. “I think if the elections were more local, it’s not a panacea, but I think that would at least solve some of our problems our electoral system has.”
Pfaff also said charging guidelines, which could limit some of the discretion prosecutors have in deciding what to charge defendants, could be helpful.
This would be similar to current sentencing guidelines that give judges a suggested type and range of sentence depending on charge and certain pertinent factors.
Finally, Pfaff said one way to possibly reign in more severe charges is to require counties to pay, or pay a larger share, of the cost to incarcerate people in state prisons.
In Pennsylvania, most people sentenced to a maximum of two years in prison or more are sentenced to a state prison. A maximum sentence of less than two years is usually served at a county jail or prison, and the county pays to incarcerate the person.
Pfaff said requiring counties to pay the cost of longer sentences could drive prosecutors to be more selective and less punitive.