Hemming in the Prosecutors Won’t Reform Our Criminal Justice System

The latest trend in the anti-incarceration movement is to curtail the power of district attorneys. Why prosecutors, you may ask? Progressives have decided that they are responsible for mass incarceration and the best way to substantially reduce imprisonment is to change the prosecutorial institution itself. This is the message of Rachel Barkow’s Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Even assuming there is such a thing as mass incarceration, and that it is a “vast cruelty,” to use journalist Emily Bazelon’s words, there is grave doubt that prosecutors caused it or that they are the primary reason we maintain it. Given the strength of this doubt, one must question the need for this book’s aggressive, if not to say radical, proposals.

Having served on the U.S. Sentencing Commission, Rachel Barkow gained a great deal of knowledge about the federal criminal justice system, and it shows in Prisoners of Politics. The criminal law professor at New York University has produced a well-researched and clearly written work, though with a tendency toward textbookishness.

One piece of it will have real appeal to libertarians. Barkow argues that our criminal codes have too many laws that abandon proof of mens rea, that is, traditional proof that the accused intended to commit a crime. Felony murder and group-criminality laws are two good examples. She points to a case where the defendant was sentenced to 26 years to life because he put a stolen stove on the back of his truck and it fell off, killing another motorist. Since he stole the stove, a felony that caused a death, he was charged with felony murder even though he didn’t intend to kill anyone. But such criminal law “bloat,” as Barkow calls it, is essentially a sideshow, since laws like these don’t account for a significant percentage of prisoners. In other words, unfair as these laws may be, they don’t present a mass incarceration issue.

The real culprit for Barkow is mandatory sentencing statutes, which require either certain minimum penalties or harsh maximum sentences as a way of preventing lenient judges from cutting defendants too much slack. These laws proliferated in the 1980s and remain on the books today, and Barkow sees them as enablers of prosecutorial abuse. The threat of a mandatory minimum, she reasons, will squeeze a plea of guilty out of defendants, forcing them into prisons unnecessarily and for longer terms than are needed to protect the public. Then, too, should the accused not fold under the pressure and actually seek a trial, a guilty verdict might lead to a mandatory maximum and an even longer lockup.

In calling out mandatory sentences as a source of abuse, Barkow has assumed that prosecutors always seek the harshest punishments they can get. But the empirical research doesn’t bear this out. Numerous studies (for example, that conducted in 2007 by Anne Morrison Piehl and Shawn D. Bushway[1]) find that prosecutors manipulate charges or simply decline to pursue mandatory minimum sentencing. Why? Often they consider these too harsh for defendants in light of the particular crimes they’re accused of committing. In other words, prosecutors aren’t the meanies Barkow describes; they have a sense of justice and apply it even where it calls for more leniency than the state legislature envisioned.

Barkow also assumes that the public always supports punitive sentences and will, in its ignorance, force the termination of effective programs for prisoners should they go awry. (Think Willie Horton, a convicted African American murderer who in 1988 had been furloughed from the Massachusetts correctional system for a weekend but, instead of returning to prison, broke into a couple’s home, bound and stabbed the husband, and raped the wife. Horton became a political issue in that year’s presidential contest, in which Massachusetts Governor Michael Dukakis was a candidate, and so, even if the furlough program was effective over all, it had to be scrapped.)

But the times they are a’changing, and today’s public is far less punitive than it was three decades ago. Public opinion researcher Peter Enns found that public punitiveness attitudes are 18.5 percent lower than they had been in 1995, the peak for such views. This is perfectly rational thinking, too, given the sharp decline in violent crime in the period between Horton’s crime and today. Barkow, for her part, believes that the public is so irrational that concern with crime is unrelated to its actual incidence. However, as Enns demonstrates in his book, Incarceration Nation (2016), this is incorrect; punitive attitudes closely track crime rates.

Today’s public, moreover, is much more liberal than Barkow thinks. When a 2010 Gallup survey asked whether more taxpayer dollars and effort should go into reducing crime by attacking social problems or to deterring crime by adding more prisons, police, and judges, the respondents, by a 2-to-1 margin, supported social programs.

These factors, and one more—the need to reduce the costs of the criminal justice system—make for a system that is already on a reduced incarceration trajectory. Imprisonment rates have been steadily falling, and are now at their lowest point in 22 years. Moreover, the rates of imprisonment of black Americans tumbled a whopping 29 percent between 2006 and 2016.

Barkow attributes much of the general rate decline to California, which has a huge prison system and was compelled by court order to slim down its prison population. But the national trend is clear. As of 2016, 34 states had lower rates than in 2008; only 14 had higher rates. Query: If incarceration is diminishing, do we really need radical changes in the system?

Although Barkow calls for more liberal judges, and for more aggressively liberal decisions to be handed down from the bench, her main focus is on restricting prosecutors or, as she puts it, dismantling the current “institutional architecture.” Her big idea is to create state-level “expert agencies” to make criminal justice policy based on empirical research and to monitor local district attorney’s offices to ensure compliance. She wants a buffer between criminal justice policymaking and the public (which, as we saw, Barkow considers irrational). Aside from the undemocratic nature of this proposal, it is highly likely that it would dramatically limit local community input into prosecutorial decisions.

Suppose a county somewhere in the United States saw a sudden spike in a particular crime—say, sexual assaults on women. A district attorney in that locality might well want to respond with aggressive policies, working with police to apprehend more such perpetrators and imposing harsher sentences on those who are caught. Would that be possible where some state bureaucracy was setting policy regarding all sexual assault cases?

Another of Barkow’s proposals weakens local control even more. She suggests that prosecutors’ budgets be capped so they can send only so many defendants to jail or seek only so many years of imprisonment. This seems arbitrary in the extreme. If the district attorney wants more of those rapists jailed or imprisoned, would he or she have to reduce incarceration for robbers and burglars to compensate? And what if some counties were experiencing a spike in all crimes across the board? Would district attorneys have to ration sentences to stay within their financial ceilings despite the need for more prison beds?

The author also wants a local oversight body to review prosecutorial policies, sort of a police-civilian review board for district attorney’s offices. I would think that even progressive prosecutors would oppose such a plan, and probably that they’d succeed in killing it in much the same way as police departments squelched the external review boards that were being imposed on them some years back.

Barkow has a great deal of confidence in expertise and very little in the general public. But the history of penology shows that the experts have often gotten it wrong. In the early 1960s they were convinced that rehabilitation programs were the ticket to success in criminal justice. Then came the late 1960s.

We must, however, credit her for getting it right when it comes to the origins of the incarceration expansion. Unlike many of the other anti-incarceration writers, Barkow understands that the great crime tsunami that began in the late 1960s generated so much fear that politicians, regardless of party affiliation, lined up to toughen the system. Implicitly this rejects another common myth of progressives: that prosecutors were mainly responsible for the buildup.

Then again, one can only find her explanation of what happened in the late 1990s—the further increase in incarceration rates despite a downturn in crime—problematic. She attributes this seeming anomaly to voter ignorance fueled by media sensationalism. I don’t think so. In the early 1980s, crime began to decline, only to be followed by a huge surge (driven by crack cocaine) at the end of that decade. As crime started to fall once again in the 1990s, how was anyone to know that we wouldn’t experience the 1980s flip-flop all over again?

The turn of the millennium presents a different story. By the year 2000 or so, it should have been clear that the low crime era was pretty solidly entrenched. So why didn’t incarceration rates then start to fall? The answer is: They did! See a few paragraphs above for the details.

We’ll probably see a lot more of the kinds of arguments Rachel Barkow has carefully and clearly set forth in Prisoners of Politics. But with crime low on the list of the national electorate’s concerns, sweeping proposals are unlikely to gain much traction. That’s probably all to the good.

[1] Anne Morrison Piehl and Shawn D. Bushway, “Measuring and Explaining Charge Bargaining,” Journal of Quantitative Criminology 23:2 (2007), 105-125.