Your locally elected prosecutor is arguably the most powerful person in the criminal justice system. Armed with substantial enforcement discretion, prosecutors make daily, life-changing decisions on which laws to enforce, whom to charge with a crime, and what punishment to pursue.
Unfortunately, the public knows almost nothing about these individuals and what guides their decision-making.
The secrecy has allowed prosecutors to escape most of the criminal justice reforms enacted in recent years—and that should concern all of us.
Prosecutors’ actions explain much of the explosion in our nation’s prison population, meaning reformers have missed a crucial component of reining in mass incarceration. Reforms that change prosecutorial behavior are a crucial next step, and for that reason it’s crucial for the public to peer inside the “black box” of prosecutor offices.
The “standard story” of mass incarceration in the United States is that the drug war and long mandatory-minimum sentences are largely responsible for America’s notoriety as the world leader in incarceration.
Criminal justice professor John Pfaff questions this popular narrative in his book, “Locked In.”
While the drug war and long sentences have certainly had devastating consequences, these factors explain only a small piece of our incarceration boom.
Instead, Pfaff points to the daily charging decisions of prosecutors as the primary drivers of mass incarceration. His research shows that even as violent crime, and arrests for violent crime, declined, the number of felony cases filed in state courts substantially increased.
In other words, we’re simply admitting too many people to prison in the first place.
We also admit too many people to local jails, where low-level offenders serve time and un-convicted, pre-trial detainees languish awaiting case disposition. Last year, the number of individuals who churned through local jails stood at an astonishing nine million.
So why have we overlooked the role that prosecutors play in mass incarceration for so long?
Pfaff suggests that this is in part due to lack of data. Although available research allows us to identify prosecutorial behavior as an important driver of incarceration rates, as Pfaff notes, “We have almost no information whatsoever on what prosecutors do or how (or why) they do it.”
Given this reality, we should celebrate any transparency that prosecutors offer.
As a promising example, prosecutor offices in Jacksonville, Tampa, Milwaukee and Chicago recently participated in a groundbreaking study produced at Florida International University (FIU). The researchers surveyed line prosecutors in these offices to elicit their attitudes and priorities related to their duties. The project is one of the first to open the black box of prosecutorial behavior so that policymakers and reformer prosecutors can effectively lower jail and prison populations.
Prosecutors are not accustomed to this level of transparency, and we can expect some pushback and even negative coverage of the information that emerges.
An article in the Jacksonville Times-Union, for example, offered a not-so-rosy take on the FIU study, keying in on examples of some line prosecutors disagreeing with Jacksonville’s State Attorney Melissa Nelson on certain issues, and using this disagreement to imply widespread discord within the office.
This paints an inaccurate picture overall, as the FIU researchers also noted that Nelson was able to garner the 100-percent support of multiple prosecutors in her office.
We shouldn’t let potential press mischaracterizations discourage efforts to introduce transparency to prosecutors’ offices. One of the most important first steps to making a meaningful dent in our incarceration rates is to give policymakers and the public access to this information. Given that polling suggests prosecutorial transparency is wildly popular with voters, prosecutors can use transparency to signal that they are not satisfied with the status quo and to restore trust with skeptical communities.
Reformer district attorneys — who have sparked a wave of recent electoral victories across the country — can use this information to measure the success of their reforms.
Those with an interest in improving a broken justice system — which is all of us — should applaud transparency efforts and reward prosecutors like Nelson who share this information. And we should all hope that more elected prosecutors, both present and aspiring, continue to support the data-transparency movement.
Jonathan Haggerty (@JHaggrid) is the Manager of Criminal Justice and Civil Liberties policy at R Street Institute. Arthur Rizer (@arthurrizer) is a former prosecutor and R Street’s Director of Criminal Justice and Civil Liberties policy.