With a hand in everything from charging to plea bargaining and sentencing, prosecutors retain unparalleled power within the criminal justice system. Their conduct at any stage of the criminal justice lifecycle has the potential to exacerbate or alleviate our mass incarceration crisis. And yet, district attorneys almost always coast to re-election, largely ignored by a disinterested public.
Traditionally, activists have considered this lack of accountability one of the primary impediments to criminal justice reform. But what if prosecutors started using this electoral immunity to push the envelope rather than to cement an antiquated status quo?
Altering prosecutorial behavior is a growing priority of criminal justice reformers. Of course, like so many things, this is easier said than done. Incumbent district attorneys win an eye-popping 95 percent of the time – a feat no doubt made easier by the fact that 85 percent are unopposed in general elections, and only a small minority face primary challenges. Even for local elections, this is exceedingly anomalous. State legislators, for example, face uncontested elections only 35 percent of the time, less than half as often as district attorneys.
This almost unassailable electoral position is coupled with a unique freedom to act unilaterally. Unlike legislators who must build consensus, or a governor who can be undone by a recalcitrant legislature, elected prosecutors have few checks on their ability to implement policy. Legislators in particular must also be wary of a slow and uncertain process that can leave a measure stalled, thereby accruing to them the costs of a politically risky stance without any of the potential benefits that come with implementation. Conversely, district attorneys can rest assured that once they make a leap of faith toward good policy, few can prevent them from reaching it.
All of this results in district attorneys who are virtually untouchable by voters and fellow political actors alike. Why, then, are so many seemingly frightened at the prospect of leading reforms?
Indeed, the possibilities for prosecutor-led reform are manifold. There are few aspects of the criminal justice system that a determined district attorney couldn’t reach and reshape. Police officers must watch their influence diminish as a case progresses, and a judge’s power does not near its zenith until a case’s conclusion, but prosecutors hold clout throughout a case’s duration. More than any other party to our criminal justice system, district attorneys have the potential to be a one-stop shop for reform.
One need look only at the impact that Larry Krasner is having as the Philadelphia district attorney to get an inkling of what is possible when a prosecutor embraces reform. In his first few months in office, he’s reduced the use of cash bail, right-sized sentencing guidelines for his prosecutors and begun reviewing old cases for potential wrongful convictions. Thanks in part to Krasner’s policies and those of his predecessor, the city recently announced that not only is its crime rate dropping, but its jail population is declining so rapidly that it plans to shutter a jail in the coming years.
Should more follow his lead, they would hardly do so alone. As a former assistant district attorney, I can attest that the new generation of prosecutors entering district attorney’s offices are even more reform-minded than their predecessors. I know many young prosecutors who recognize that a conviction is not always the same as justice, and that a prosecutor’s success should not be measured in the length of a sentence handed down. If a district attorney is willing to lead on this issue, there is no shortage of capable lawyers willing to follow.
The day will hopefully come when district attorneys are actually accountable to the people that they represent. Until then, however, there’s no reason we shouldn’t expect them to do more. After all, it doesn’t take much courage to walk into the line of fire when you’re bulletproof.
The publication of this article was supported by a grant from the R Street Institute.
