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The Role of Prosecutors in Mass Incarceration

Prosecutors are by far the most obscure variable in the criminal justice equation. They enjoy enormous discretion in their decision making, and much of what they do occurs in private meetings. Past efforts to study and quantify the role of prosecutors in the justice process have shed only limited light on how they make decisions, but a recent study published by the Southern California Law Review offers important insight into the decisions prosecutors routinely make and how those decisions could have an outsized impact on incarceration rates.

The study was carried out by Shima Baradaran Baughman at the University of Utah College of Law and Megan S. Wright at Pennsylvania State University. Five-hundred and forty-one prosecutors from jurisdictions around the nation were asked to view a hypothetical police report and then decide whether to charge a crime, what and how many charges to file, and what punishment range they would seek.

The police report describes a man in a subway station brandishing a knife. He is intoxicated, asking people for money, and complaining that his girlfriend left him. At one point, he grabs a passing woman by the arm. The police arrive soon after and arrest him. He has no previous criminal record.

The vignette was designed to allow prosecutors maximum discretion on whether to charge a crime, and if they chose to charge, what charges to file. Most previous studies had estimated that prosecutors decline to charge in nearly half of all arrests, but in the study, 97 percent chose to charge at least one crime, with 16 percent of prosecutors opting to charge a felony and over three-quarters opting for charges that were a misdemeanor only (or could be either a felony or a misdemeanor). Most of the prosecutors in the survey chose to charge multiple counts, and about 27 percent of prosecutors recommended confinement.

The harsh response of prosecutors was not what the researchers expected, nor did it match the estimates previous studies had put forth. The reluctance of prosecutors to decline to charge, along with their willingness to charge felonies in such a marginal case, could help explain a statistical phenomenon that has garnered growing attention among criminal justice experts in recent years.

Over the last 15 years, arrest rates and overall prosecution numbers have fallen steadily as crime rates have declined across the United States. A deeper look at the numbers, however, reveals that even though overall prosecution numbers are down, the rate at which they choose to charge has risen. Overall, from 2006 to 2018, the number of arrests in the United States per year drops from 14.4 million to 10.3 million, a decrease of 28.3 percent. Over the same period, the number of criminal filings by prosecutors fell only 21.3 percent. In other words, the number of criminal charges per arrest went up, from 1.51 filings per arrest in 2006 to 1.73 filings in 2013, before plateauing in 2018.

This data matches what was discovered in the study. Not only were prosecutors ready to charge, but many were prepared to charge multiple crimes for a single incident.

It is difficult to estimate the aggregate effect of these decisions on the problem of mass incarceration.

What the authors of the study do believe is clear is that without addressing the role of prosecutors, efforts to stem arrest rates or change sentencing guidelines will only nibble at the edges of this intractable problem.

Attempts to standardize prosecutorial procedures may not be the answer. The study makes clear that attempts to standardize federal sentencing guidelines led to longer average sentences. It also must be considered that the discretion afforded prosecutors is often essential for their job.

What the study proposes is a three-step process to help prosecutors get on board with efforts to move away from mass incarceration. The first step is educating prosecutors on the downstream effects of their decisions, both in fiscal and social terms. The second phase would be gathering more information about how prosecutors make choices and what the consequences of those choices are. Lastly, the data collected from the operations of prosecutors’ offices can be used to create baselines for individual prosecutors to use as guideposts in their day-to-day decisions. The study’s authors hope that the more prosecutors understand the consequences of their decisions, the more likely they will be to make decisions that lessen the burden of mass incarceration. 


Source: Baughman, Shima Baradaran and Wright, Megan, Prosecutors and Mass Incarceration (September 8, 2020). Southern California Law Review, Forthcoming, University of Utah College of Law Research Paper, Forthcoming, available at SSRN:

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