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Maybe, If . . .

Believing that prosecutors can play a role in ending mass incarceration requires imagining a prosecutor whose goal is non-reformist reforms.


“Can prosecutors help dismantle mass incarceration?” That’s one of the questions Premal Dharia, James Forman, Jr., and Maria Hawilo ask in their anthology Dismantling Mass Incarceration: A Handbook for Change, and in their lead essay to this roundtable. I’ve added italics to the start of the question to signal my skepticism.

Folks familiar with my work know that I am “Against Prosecutors” (the title of my Cornell Law Review article). I say this as someone who, before becoming an academic, was a federal prosecutor, a faithful soldier in the war against crime. But the more I learned about the failures of the system, and the more I looked back, the more skeptical I became about prosecutors. Indeed, even if we could eliminate mass incarceration, I’d still have my skepticism about prosecutors. Ditto if we could eliminate over-criminalization and racial disparities, and if we could stop criminalizing poverty and mental illness, and if we could stop using our prisons and jails as our de facto safety net. Or rather, as our “let’s just hide them someplace” response to cover up our own interests in maintaining an underclass and making the status quo—houselessness, inadequate education and health care, you name it—seem natural, inevitable, and, well, just how things are. The result of some invisible hand, and not our own handiwork.



This response essay is part of a roundtable about prosecutors inspired by the new collection Dismantling Mass Incarceration.  Read the entire roundtable here.

Why would I still be against prosecutors, even if we could end mass incarceration and these other ills? Because I think it’s absurd that we’ve given prosecutors a monopoly to decide which cases to prosecute, and which to not. Just consider sexual assault cases. Corey Rayburn Yung found that, between 1995 and 2012, roughly a million reported “forcible vaginal rapes of female victims nationwide disappeared from official records.” Police and prosecutors, wielding their monopoly power, using it to cull and choose the few cases they want to pursue. The absurdity only increases when one realizes this monopoly power is a relatively modern development, a “historical latecomer.” For much of U.S. history, victims themselves initiated proceedings. As historian Joan Jacoby put it in her book The American Prosecutor: A Search for Identity:

In common law . . . a crime [was] viewed not as an act against the state, but rather as a wrong inflicted upon a victim. The aggrieved victim, or an interested friend or relative, would personally arrest and prosecute the offender, after which the courts would adjudicate the matter much as they would a contract dispute or a tortuous injury.

To be sure, this wasn’t a perfect system. But it did have much to recommend it. It allowed victims the power to decide what would make them whole. A victim of theft, for example, could prioritize, via prosecution, a return of the stolen item or financial damages. A victim of battery, for example, could decide whether he wanted punishment or an apology. Perhaps most importantly, it gave the victim the power to show mercy, to bypass the criminal system altogether. 

Over time, however, public prosecutors gradually assumed more power, and we, in turn, assumed less. Starting with Connecticut in 1704, states began to abolish private prosecutions and reserve prosecution for themselves. The result was the ability of prosecutors to boast that they represent “the people,” as in The People v. John Doe. As private prosecutions receded, state prosecutors could more easily claim the state as victim, enabling the state to pursue victimless crimes. And as Jocelyn Simonson points out in her Columbia Law Review article “The Place of ‘the People’ in Criminal Procedure,” the turn to public prosecutors representing “the people” also allowed prosecutors to position the defendant as if they stand alone, already shunned and probably unable to make bail, notwithstanding our boasts that everyone is innocent until proved guilty. All of this suggests Justice really is blind. Otherwise, how could she not see that the scales are tipped in favor of the prosecutor and against the accused? How could she not see the power asymmetry, even when the prosecutor is progressive? How could she not see that, with the monopoly power we’ve given prosecutors, we’ve allowed the state to now play the role of victim, even in victimless crime? That we’ve turned prosecutors into leviathans?

But I have been winding myself up and getting away from the more limited question that Dharia, Forman, and Hawilo ask: “Can prosecutors help dismantle mass incarceration?” In their anthology Dismantling Mass Incarceration, they include excerpts from a range of scholars and practitioners who’ve thought long and hard about that question, including Rachel Barkow, Angela J. Davis, Emily Bazelon, John Pfaff, Larry Krasner, and Paul Butler, to name a few. Can progressive prosecutors—or “transformational” prosecutors, to use the phrasing suggested by contributors Taylor Pendergrass and Somil Trivedi—make a difference? A partial answer might look something like this:

  • Maybe, if the prosecutor is committed not only to charging fewer low-level crimes, but also to reckoning with why some conduct is made criminal in the first place.
  • Maybe, if the prosecutor not only creates a conviction integrity unit and practices open-file discovery, but also advocates for equal funding of public defenders, which is what is needed to really level the playing field, and advocates for the empowerment of victims, including victims who want mercy instead of cages.
  • Maybe, if the prosecutor is committed not only to reducing racial disparities and holding police accountable for excessive force, but also to acknowledging that, for many, racial disparities and excessive force are a feature, not a bug. Or, as Paul Butler puts it in the title of one of his articles, “the system is working the way it is supposed to.”
  • Maybe, if the prosecutor not only requires line assistants to acknowledge the financial costs of incarceration, but also to acknowledge the costs, financial and otherwise, to their families. My colleague Mariam Hinds focuses on this in her article “The Shadow Defendants” forthcoming in the Georgetown Law Journal.
  • Maybe, if the prosecutor is not only committed to keeping “us” on the outside safe, but also to keeping safe those whom we lock up in jails and prisons.
  • Maybe, if the prosecutor is willing not only to use their power wisely, but also to cede power.

In short, believing that prosecutors can play a role in ending mass incarceration requires imagining a reform-minded prosecutor whose goal is not merely reformist reforms, but non-reformist reforms. And a prosecutor who can withstand the backlash from the police unions and tough-on-crime advocates that Barkow describes in her contribution, “Can Prosecutors End Mass Incarceration?”

Are there prosecutors who fit this bill? Can prosecutors really “hold the key to change” and “curtail mass incarceration,” as Bazelon suggests? Maybe. But I’m not optimistic. At least not in the short term. (As a legal scholar who’s an Afrofuturist, I’m much more sanguine about the long term, especially given that this country is slated to tip from being majority white to majority minority in a few decades! To be clear, a brighter future isn’t solely about demographic shifts.  It’s about leaning into Afrofuturism, which imagines a future grounded in equality along lines of race, class, sex, and sexuality.  It’s a future that harnesses technology to benefit everyone. And as I wrote in “Afrofuturism, Critical Race Theory, and Policing in the Year 2044,” it’s a future in which prisons, if not abolished, will at least be a last resort.)

Is it important, though, to ask what can reform prosecutors can do now to at least make things better? To at least reduce mass incarceration even a little? Of course it is. Just as it’s important to ask and think about what other legal actors—police, judges, and defenders—can and should do. One of many things to commend in Dismantling Mass Incarceration is that it does precisely this, devoting sections to each of these legal actors.

That said, I will conclude this response as I often do in conversation with my progressive students—and with some of my progressive colleagues—when they put the onus on police, prosecutors, judges, and defenders to change: Actually, moving from this terrible system to something truly better is on us. It’s on “we, the people.” If we really want transformative change, if we really want non-reformist reforms, we, the people, are the ones who need to become less punitive and more open to mercy and equality. We must become more willing to open “doors”—to education, to housing, to health care—other than the prison door. Real change? That’s on us.

Image: Martin Adams/Unsplash/Inquest