REASSESSING PROSECUTORIAL POWER THROUGH THE LENS OF MASS INCARCERATION

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Author: Jeffrey Bellin
Date: Apr. 2018
From: Michigan Law Review(Vol. 116, Issue 6)
Publisher: Michigan Law Review Association
Document Type: Book review
Length: 10,746 words
Lexile Measure: 1610L

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LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION--AND HOW TO ACHIEVE REAL REFORM. By John F. Pfaff. New York: Basic Books. 2017. Pp. vii, 235. $27.99.

INTRODUCTION

When I was a prosecutor in the early 2000s, my office deployed a variety of diversion programs to unload provable, but minor, cases without going through a formal adjudicative process. One of the most popular programs was called the "Stet Docket." A case placed on the Stet Docket sat dormant for a period of time, usually six months or a year. If the defendant had not been rearrested at the conclusion of that period, we dismissed the case. To prevent abuse, office policy mandated that a line prosecutor could only place a case on the Stet Docket after obtaining approval from a department supervisor. As supervisors said yes sparingly, one prosecutor became something of a legend simply because he stopped asking. Risking his job, he covertly placed all manner of cases on his own personal Stet Docket, creating a parallel criminal justice universe alongside the formal process available to other defendants.

I did not realize it at the time, but my rogue colleague had provided a valuable lesson in the power of prosecutors in the American criminal justice system. Prosecutors like to be recognized for holding criminals to account. The real power they wield, however, is the unreviewable ability to (discretely) open exits from an otherwise inflexible system.

The American criminal justice system has grown increasingly inflexible in the past four decades. The magnitude of the change is eclipsed only by the resulting fallout. In 1973, the United States confined approximately 200,000 people in state and federal prisons. (1) Our imprisonment rate was not that different from Western European countries. Since then, the nation's incarceration rate increased rapidly until it plateaued in the 2000s at previously unimagined levels. (2) Currently, there are over 1.5 million people confined in state and federal prisons, with another 700,000 held in local jails. (3) "The land of the free" has become the world's largest jailer.

Americans increasingly recognize that "mass incarceration"--unprecedented incarceration levels well beyond those necessary to protect society--is a problem. Even among experts, however, few can persuasively explain how the phenomenon arose or what can be done to make it go away. These are the questions John Pfaff (4) grapples with in his highly anticipated book, Locked In: The True Causes of Mass Incarceration--And How to Achieve Real Reform. The book's provocative conclusion is that "[p]rosecutors have been and remain the engines driving mass incarceration" (p. 206). As a result, he criticizes reform efforts that focus on legislators and judges and instead advocates new rules designed to rein in prosecutorial discretion.

Even before appearing in Locked In, Pfaff's data-driven insights found a receptive audience through academic publications and prominent media outlets. David Brooks highlighted Pfaff's views in an opinion column, explaining that "[h]is research suggests that while it's true that lawmakers passed a lot of measures calling for long prison sentences, if you look at...

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Gale Document Number: GALE|A540798293