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Prosecutors Can Play Role in Ending Mass Incarceration

If the nation is to end mass incarceration, we must collectively embrace the revolution in prosecution.

September 30, 2014

Cross-posted at The Huffington Post.

The common perception of federal prosecutors is that they are akin to Eliot Ness—tough-minded law enforcers dedicated to fighting crime wherever it lurks. Like all characterizations it understates the subtleties and complexities of the task, but more importantly, the portrayal is dated.

There is a quiet revolution underway in how federal prosecutors see their job. To understand the scope of the shift, a little background is helpful. The U.S. has the world’s highest incarceration rate, with almost one in every 108 American adults behind bars. That’s four to ten times that of many European countries. And of the 2.2 million people in America’s prisons and jails, nearly 40 percent are African-American.

Moreover, the spiraling incarceration rate has continued unabated while crime has dropped. Violent crime has decreased almost in half since its peak in 1991. 

There is now bipartisan agreement that too many are being locked up for too long. No one wants to return to the days when the public genuinely feared for their safety. Yet public safety can be maintained without resorting to the stratospheric incarceration levels we see today.

And, no one understands the above better than prosecutors. The reality is that prosecutors play a unique and immensely powerful role in the criminal justice system. They decide who gets charged, and most importantly, with what crime, and what plea bargains to accept and reject. Sentencing recommendations from prosecutors carry immense weight with judges. 

But all of those decisions are made after a crime occurs. Prosecutors are increasingly focusing on how to prevent crime in the first place. And given the high rates of recidivism, what can prosecutors do to prevent offenders from offending again? 

For instance, Kenneth Polite Jr., the U.S. Attorney for the Eastern District of Louisiana, has been instrumental in encouraging the local business community to support “30–2–2,” where 30 local businesses agree to hire two formerly incarcerated people for two years. 

Critical to this revolution in prosecution is changing how federal prosecutors are evaluated. A new report by the Brennan Center for Justice, Federal Prosecution For the 21st Century, details new “success measures” for prosecutors, such as drops in violent crime and recidivism, instead of focusing merely on volume such as number of convictions.

Far from being a lonely voice in the wilderness portraying some sort of unattainable utopia, the report has won backing from U.S. Attorney General Eric Holder. Inremarks at a Brennan Center conference last week, his last before announcing his pending retirement, Holder said, “It’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success.” He added, “This means developing a new system of assessment – because what gets measured is what gets funded, and what gets funded is what gets done.” It is imperative the next Attorney General is as receptive to criminal justice reforms, including to the way federal prosecutors’ performance is assessed. 

This new theory of prosecution has three overarching goals: reducing violence and serious crime; reducing prison populations; and reducing recidivism. As is often stated by criminal justice reformers, this approach is not soft on crime, but smart on crime.

U.S. Attorneys’ Offices would be evaluated on the change in the violent crime rate, as opposed to sheer number of arrests. Other “success measures” would include the percent of prisoners convicted of a new crime within three years of release, compared to the previous year. 

No one argues that a federal prosecutor’s role is easy. And, in many ways, the revolution in prosecution requires them to make even more subtle and difficult judgments than they do already. But if the nation is to end mass incarceration, with a criminal justice system suited to that goal, we must collectively embrace the revolution in prosecution.

(Photo: Thinkstock)