Michael Berdan ‘22
Opinions Editor
Emily Bazelon’s excellent book Charged: The New Movement to Transform American Prosecution and End Mass Incarceration describes the movement for so-called “progressive prosecution.” Progressive prosecutors purport to operate under a lower-incarceration ethos, choosing alternatives to incarceration, non-prosecution of certain cases (such as low-level drug offenses), and other means to try to steer the ship of the justice system toward less carceral shoals. Examples of this movement are Philadelphia’s Larry Krasner, San Francisco’s Chesa Boudin, and just out our back door, Jim Hingeley in Albemarle County. Bazelon is hopeful, if appropriately skeptical, regarding this movement.
But we must admit that it is somewhat shocking that prosecutors have individual discretion over such tremendously consequential state action. The public tends to imagine our system of criminal prosecution as something of a machine or a process, where the law is applied mechanically and uniformly. But law students come to recognize that the law rarely applies uniformly, cleanly, or mechanically, and there is, in fact, quite a bit of flexibility in the rules for the exercise of discretion. Bazelon’s book, and progressive prosecution proponents, focus on this exercise of discretion as a critical hinge point between the out-of-control incarceration we’ve seen in the past several decades and a system that safeguards the public good without the enormous fiscal and human costs of over-incarceration. Indeed, between justice and injustice.
I have seen only a glimpse of this as a third-party observer, when a friend of mine was arrested and charged, purportedly for throwing rocks at his ex-girlfriend's car. The only evidence was an inconsistent and highly coincidental statement from the alleged victim. My friend had an alibi - he was half an hour away at a friend’s home, all night. The prosecutor chose to charge my friend with terrorist threats and assault with a deadly weapon, and held him on enormous bail. My friend sat in jail, trying to get his absentee assigned counsel to speak to his alibi witness, to no avail. Finally, after ten months behind bars, he could no longer stand it, so he pled out to a felony on his record and was released on parole.
A recent article by a trio of law professors sought to quantify the exercise of prosecutorial discretion across jurisdictions by presenting 500 prosecutors with a single set of facts and asking how they would handle it.1 The hypothetical involved a man who was having an emotional breakdown at a bus stop while holding a knife, culminating in him briefly grabbing a woman by the arm. No one was physically injured, and the man was arrested. The prosecutors’ answers varied wildly, from dismissing the case outright to seeking felony prosecution and significant jail time. Many respondents talked about teaching the individual a lesson or deterring future acts in vaguely paternalistic tones. A number of respondents mentioned the mental health concerns at play, but many indicated they would seek conviction and incarceration regardless.
I can’t help but wonder how those of my colleagues intending to become prosecutors would respond to the hypothetical posed in the article or to my friend’s case. It dawns on me that a student can enter UVA Law at 21 or 22 years old, graduate at 24 or 25, and enter their first job, perhaps in a city and community entirely new to them, as a line prosecutor deciding whether individuals like my friend should be held in jail, marked for life with a felony conviction, incarcerated for months or years, or released without charges. They almost surely have never been incarcerated themselves, likely have never been arrested, and may never have known an incarcerated person or even visited a jail or prison. I wonder whether my prosecution-bound colleagues understand the tremendous weight of the discretion they’re about to be handed, or even if understanding is possible.
Ninety-five percent of elected prosecutors in the United States are white, and seventy-five percent are white men.2 Are the future prosecutors among us reckoning with the fact that they are choosing a career that will have them incarcerating people of color at heavily disproportionate rates? Are they being required to do so by their legal education? A student could conceivably graduate and become a prosecutor, having 1L Criminal Law and Criminal Procedure as the only courses on the subject they have taken. They may have little or no understanding of disparities in race and economic class in the criminal justice system or the possibilities presented by the movements for progressive prosecution, alternatives to incarceration and policing, or prison abolition. Surely some of our criminal law professors are building some of these concepts into their curriculum,3 but an academic awareness is quite different from the grounded understanding that comes from having been incarcerated oneself or loving someone who is incarcerated. Do those among us who will soon be exercising the tremendous power of prosecutorial discretion truly understand what they’ll be doing? Do career prosecutors even get it?
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mwb4pk@virginia.edu