What Prison Reformers Miss

Federal legislation reducing sentences for non-violent offenses is well on its way to becoming one of the first major bipartisan domestic achievements of Barack Obama’s presidency, and similar measures are being tried in several states. But top-down policy changes—whether implemented from Washington D.C. or state capitols—may only go so far in reducing the prison population.

Much of the action on sentencing has to do with how individual prosecutors exercise their discretion. According to the prominent defense attorney Harvey Silverglate, the real culprit in over-incarceration is a draconian prosecutorial culture, so the types of macro-level policy changes currently being considered won’t have much of an effect. Silverglate writes in a recent Boston Public Radio op-ed:

It is sometimes said by us criminal defense lawyers – with a dose of cynicism – that in the halls of justice, justice is often done in the halls. What we mean by this tongue-in-cheek phrase is that the informal processes among prosecutors, lawyers, defendants and witnesses has more to do with whether true justice is rendered than any of the phenomena discussed by [at a recent White House panel]. By inviting only higher-ups to engage the President, [the moderator] limited the panel to discussions of macro policy and left out how those policies play out on the ground – particularly the ways that prosecutors routinely misuse their power. […]

The panel only briefly touched upon the toxic plea bargaining culture that has developed throughout the country. U.S. Attorney Walsh proposed that mandatory-minimum sentences be reserved only for the most violent offenders. But he failed to mention a practice that goes hand-in-hand with these sentences: government cooperation in exchange for lower sentences. Endowed with the immense power of imposing long prison sentences, a prosecutor can single-handedly get a defendant to say almost anything about almost anybody.

Silverglate’s observations are consistent with the views of Fordham Law professor John Pfaff, whom David Brooks interviewed for a New York Times column last month:

Pfaff’s theory is that it’s the prosecutors. District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges. Twenty years ago they brought felony charges against about one in three arrestees. Now it’s something like two in three. That produces a lot more plea bargains and a lot more prison terms.

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