March 25, 2015

The Gatekeepers: Four ways prosecutors can improve their decisionmaking

This post originally appeared in full on the Marshall Project.

For all of the increased, bipartisan attention being paid to the issue of mass incarceration in Congress and state capitols across the country, very little consideration has been given to one of the gatekeepers of America’s criminal justice system — prosecutors. While the highly publicized cases involving the deaths of Michael Brown and Eric Garner exposed the ways in which prosecutors can use their discretion to decline to file criminal charges against law-enforcement officers, prosecutors regularly use that same judgment to pursue overly harsh prison sentences for nonviolent crimes.

Indeed, prosecutors have vast authority and discretion to determine who is charged with a crime and which charges to bring against them. These decisions have a direct bearing on who goes to prison and for how long. The combination of excessive sentencing laws and the singular authority to file felony charges gives prosecutors tremendous leverage, allowing them to secure plea deals in which defendants accept felony convictions and unnecessarily long terms of incarceration. Research from 34 states with available data shows that the increase in felony filings per arrest from 1 in 3 in 1994 to 2 in 3 in 2008 has been a major driver of prison population growth.

Considering that crime has declined significantly, with violent crime falling by almost half since its peak in 1991, do prosecutors still need the leverage of mandatory minimums and long sentences for even the least serious felony offenses? To what extent have prosecutorial practices contributed to the high incarceration rates that are rallying Democrats and Republicans alike to seek alternatives to prison?

With those questions in mind, here are four recommendations for improving prosecutorial decision-making: click to read more.


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