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The Prosecutor Problem

A former assistant U.S. attorney explains how prosecutors’ decisions are fueling mass incarceration — and what can be done about it.

  • Paul Butler
August 23, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

I became a prosec­utor because I don’t like bullies. I stopped being a prosec­utor because I don’t like bullies.

I grew up on the south side of Chicago in an all-Black neigh­bor­hood. My family had direct exper­i­ence with crime — our house was broken into, and my mother was held up at gun point. As a young Black man, I also had some bad exper­i­ences with police officers, like getting stopped for no reason, or being the object of suspi­cion every time I rode my bike into a white neigh­bor­hood.

So, I went into the prosec­utor’s office in the District of Columbia as an under­cover brother, hoping I could create change from within. I wanted to help keep people safe from crim­in­als, and I wanted to help keep Black people as safe as possible in a racist crim­inal justice system.

What I instead found was that rather than chan­ging the system, the system was chan­ging me. Like many lawyers, I was compet­it­ive and ambi­tious, and the way for a young lawyer to move up in the prosec­utor’s office was to lock up as many people as possible, for as long as possible. It turned out I was good at it, and I star­ted to think of that work as the best way to serve my community.

At some point, though, I began to see things differ­ently. Virtu­ally all the defend­ants were Black or Latino. In Wash­ing­ton, as in many Amer­ican cities, if you visit crim­inal court, you would think that white people don’t commit crime. I came to real­ize that I did not go to law school to put Black people in prison, espe­cially for the drug crimes that I was prosec­ut­ing — crimes that white folks were also commit­ting but didn’t get arres­ted for. I also didn’t feel that my work send­ing so many people to prison — espe­cially Black men — was making communit­ies any safer. On the contrary, I learned that too many prosec­utors use their power in a way that has contrib­uted to the radical increase in incar­cer­a­tion.

As the most power­ful actors in the crim­inal legal system, local and federal prosec­utors have a huge amount of discre­tion and are subject to little judi­cial over­sight — over­sight that might moder­ate their misuse of prosec­utorial power. For example, they decide not only whether to charge someone with a crime, but if so, what crime. Even if a judge does not agree with the prosec­utor’s decision to charge someone with a partic­u­lar crime, the judge is power­less to undo the prosec­utor’s action. Because punish­ment for a crime is largely determ­ined by the sentence that lawmakers have estab­lished in the crim­inal code, the prosec­utor often has more power over how much punish­ment someone convicted of a crime receives than the judge who does the actual senten­cing.

Let’s say that a person has been arres­ted for possess­ing five pounds of weed (in a juris­dic­tion where marijuana posses­sion and selling is crim­in­al­ized). The prosec­utor can choose not to charge that person (no sentence, obvi­ously), charge them with simple posses­sion (usually a sentence of limited dura­tion or sever­ity), or charge them with posses­sion with intent to distrib­ute, which can require — by stat­ute — several years in prison. Most prosec­utor offices are not trans­par­ent about what factors would lead them to which char­ging decision — and that’s assum­ing that the office even has uniform stand­ards. Many don’t, and they decide these issues on an ad hoc basis, which risks allow­ing inap­pro­pri­ate consid­er­a­tions like race to influ­ence who gets charged.

Plea bargain­ing exacer­bates the prob­lem. This is because prosec­utors typic­ally offer an accused person a “deal” to avoid going to trial. Some 95 percent of crim­inal cases are resolved this way. If the defend­ant agrees to confess their guilt, the prosec­utor recom­mends a sentence to the judge that is less punit­ive than what the prosec­utor would recom­mend if the defend­ant goes to trial, and loses. This threat by prosec­utors — to throw the book at defend­ants who are found guilty — radic­ally dilutes the defend­ant’s consti­tu­tional right to a trial.

Unfor­tu­nately, the Supreme Court author­ized this prac­tice in a 1978 case called Borden­kircher v. Hayes. Lewis Hayes had been charged with forgery and faced a 2-to-10-year prison sentence. Prosec­utors offered to pursue a five-year sentence if Hayes pleaded guilty and saved them from “the incon­veni­ence and neces­sity of a trial.” If he refused to plead guilty, prosec­utors said they would seek an indict­ment under the Kentucky Habitual Crime Act. Because Hayes had previ­ously been convicted of two felon­ies, a convic­tion would mandate a sentence of life impris­on­ment. Hayes exer­cised his consti­tu­tional right to a trial, prosec­utors charged him under the Habitual Crime Act, and he was found guilty and sentenced to a life term.

Hayes chal­lenged his convic­tion on the grounds that his 14th Amend­ment due process rights were viol­ated when prosec­utors threatened to re-indict him on more seri­ous charges if he did not plead guilty to the original, less seri­ous forgery offense. In its 5–4 decision, the Supreme Court rejec­ted the chal­lenge. Accord­ing to the Court, the plea-bargain­ing system is an “import­ant compon­ent of this coun­try’s crim­inal justice system,” and so long as pleas are made “know­ingly and volun­tar­ily,” there is no consti­tu­tional viol­a­tion. The Court did recog­nize that punish­ing a person because he “has done what the law plainly allows him to do” is “a due process viol­a­tion of the most basic sort.” But it rejec­ted the idea that Hayes was being punished, claim­ing instead that he was just being presen­ted with “diffi­cult choices.”

Since Borden­kircher, plea bargain­ing has become so insti­tu­tion­al­ized that, in a case decided in 2012, Justice Anthony Kennedy noted that plea bargain­ing “is not some adjunct to the crim­inal justice system; it is the crim­inal justice system.” 

Prosec­utors have also contrib­uted to the racial dispar­it­ies that are an endemic feature of the U.S. crim­inal legal system. In 2014, the Vera Insti­tute of Justice published research that examined racial dispar­it­ies at play in the Manhat­tan District Attor­ney’s office, and it concluded that “race remained a stat­ist­ic­ally signi­fic­ant inde­pend­ent factor” at most discre­tion­ary points in the legal process. In Vera’s report, based on the analysis of more than 200,000 cases, research­ers found that Black and Latino people charged with drug offenses were more likely to receive more punit­ive plea offers than white defend­ants, partic­u­larly offers that included incar­cer­a­tion. Black and Latino defend­ants were also more likely than simil­arly situ­ated whites and Asian Amer­ic­ans to be detained before trial. The study did find that prosec­utors treated Black and Latino defend­ants more favor­ably in at least one respect: they were more likely than whites to have cases dismissed before they went to trial — prob­ably, the report argued, because “police were more likely to bring them in on bogus or unsub­stan­ti­ated charges” in the first place.

Many of these policies and prac­tices are being reex­amined in juris­dic­tions across the coun­try, in part thanks to reformers who have won district attor­ney elec­tions. The “progress­ive prosec­utor” move­ment owes its start to Angela J. Davis’s 2009 book, Arbit­rary Justice: The Power of the Amer­ican Prosec­utor, which argued that prosec­utors should use their discre­tion to reduce mass incar­cer­a­tion and racial dispar­it­ies.

Reform-minded prosec­utors have differ­ent approaches, but they all reject incar­cer­a­tion as a knee-jerk response to social ills. In Chicago, Cook County State’s Attor­ney Kim Foxx has declined to prosec­ute low-level offenses such as small-scale retail theft as felon­ies. In Baltimore, State’s Attor­ney Marilyn J. Mosby recently announced her office will no longer prosec­ute sex work, drug posses­sion, and other low-level offenses. Phil­adelphia District Attor­ney Larry Krasner requires prosec­utors in his office to state on the record the costs and bene­fits of any prison sentences they recom­mend to judges. In San Fran­cisco, District Attor­ney Chesa Boudin has ended the use of “three strikes” laws.

The progress­ive prosec­utor move­ment is new but prom­ising. Since prosec­utors are one of the primary sources of the prob­lem of mass incar­cer­a­tion and excess­ive punish­ment, they must be part of the solu­tion.

Paul Butler is the Albert Brick Professor in Law at Geor­getown Univer­sity and a MSNBC legal analyst. A former federal prosec­utor, he is the author of Choke­hold: Poli­cing Black Men.