When talking about inequality in the criminal-justice system, we often focus on the war on drugs, crooked cops or the prison-industrial complex. But insiders know there is one part of America’s legal system that has an outsized influence on convictions, sentencing and incarceration:
Local prosecutors.
Here are a few facts that bear witness to the oft-forgotten power of local prosecutors:
- Bureau of Justice Statistics (pdf) data shows that 87 percent of all U.S. inmates are housed in state prisons.
- From 1994 to 2008, crime and arrests dropped, but incarceration rates rose because prosecutors filed more felony cases.
- If President Donald Trump pardoned every single person in federal prison tomorrow, the number of people incarcerated would only drop from 2.1 million to 1.9 million.
It is the local prosecutors who drive mass incarceration, and it is the local prosecutors who can end it.
On Tuesday, voters in Philadelphia decided to do something about it when they selected Larry Krasner to be district attorney with nearly 75 percent of the vote.
This was a stunning victory by a man known for taking on civil rights cases and suing the Philadelphia Police Department. Krasner ran on a platform of criminal-justice reform and ending mass incarceration that inspired local activists and made others call him “unelectable.”
But he is just a prosecutor, not a judge or a legislator, right? What could he do?
Krasner has decided to use his prosecutorial discretion in unprecedented ways. He promised to never ask for cash bail for a nonviolent offender, which is perfectly legal and up to the prosecutor’s office. Cash bail has long been derided as a for-profit system that penalizes poor people before they are convicted of a crime.
Krasner also vowed to curb police corruption by prosecuting cops with as much zeal as the criminal-justice system targets others. His platform states that he will not prosecute cases where the police are abusive, and the new DA also vowed that he will end the illegal stop-and-frisk program by “refusing to bring to trial cases stemming from illegal frisks and searches.”
The new prosecutor says that he will no longer seek the death penalty; nor will he seize any defendant’s assets until after a conviction has been made. Krasner also plans to steer cases of drug possession and nonviolent offenses toward treatment programs, and he says that he will seek to end the drug war by treating drug use as a medical problem.
Could this work? Many people think so. It has been done before. Harris County, Texas, instituted a no-cash bail system that freed dozens of low-level nonviolent people who were in jail just because they couldn’t afford to pay their way out.
In 2014 the district attorney representing Brooklyn, N.Y., decided that he wouldn’t pursue low-level marijuana arrests. Florida prosecutor Aramis Ayala announced that she would stop seeking the death penalty earlier this year, and Baltimore City State’s Attorney Marilyn Mosby dropped more than 100 cases after police officers seemingly falsified evidence.
Nationwide, more than 90 percent of all criminal convictions are determined by negotiations with prosecutors that result in plea agreements.
Even if the thought of an orange totalitarian sleeping in the White House upsets you, when it comes to ending mass incarcerations in your state and community, it is still important to know:
Your vote counts.