Are United States prosecutors in the business of injustice?

Shondel Church sat in Lafayette County Jail for weeks before speaking to a public defender. Church was in custody for stealing a generator and toolbox from his stepmother. In Shondel’s first conversation with his public defender, Shondel was told that he could win if he took the case to trial. The catch, however, was that his lawyer would need six months before proceeding to trial due to his other pending cases. On Shondel’s part, waiting six months was unthinkable; he was the primary breadwinner and father to four children. Shondel instead took a plea bargain, pleading guilty to a misdemeanor. In a moment, a prosecutor dealt away Shondel’s life through a negotiation.

Prosecutors are the most influential actors in the U.S. criminal justice system because of their discretionary role in determining charges, negotiating bargains, and setting bail. With a single unfair plea bargain, a prosecutor has the power to determine the fate of an incarcerated person. Statistics reveal that a staggering 97 percent of federal and 94 percent of state cases end with a plea bargain. Research also estimates that 30 percent of this population did not belong in jail in the first place. As more research evolves, legal scholars argue whether such discretionary power is good-willed. Did Shondel Church benefit from a plea bargain, or was he at the disposal of the prosecutor’s powers compelling Shondel to take the deal? As scholars vigorously debate, I argue that prosecutors are the most influential in the court system because they are provided with the most discretion and opportunity to redirect defendants into rehabilitation. Conversely, these powers propagate the never-ending saga of incarcerating and cornering countless people, disproportionately from poor and minority communities.

How did U.S. Prosecutors Become So Powerful?

            Understanding prosecutorial power can be complex, let alone how prosecutors abuse their discretionary authority. These discretionary powers bolster a prosecutor’s role in courts and their influence in a defendant’s life. Over decades, the scrutiny on prosecutors has increased due to lack of legal accountability, the rise of a managerial court system, and prosecutors’ ultimate weapon: plea bargaining.

            In 1789, The Judiciary Act of 1789 established the federal judiciary while allowing Congress to set up lower courts. Until 1861, local prosecutors did not fall under the control of the U.S. attorney, meaning accountability did not exist. The Wickersham Commission raised the alarm on prosecutors’ discretionary power by pointing out The Judiciary Act did not impose any meaningful checks. Despite this effort, the U.S. Supreme Court has rendered verdicts that uphold a prosecutor’s discretionary powers in Bordenkircher v. Hayes by ruling a voluntary plea does not violate a defendant’s due process rights. As criminal justice scholar Angela J. Davis notes, “The Supreme Court has protected the autonomy and discretion of prosecutors, even making it difficult for defendants to obtain discovery.” Unfortunately, there are no legal means to call out such malpractices that harvest unrestrained discretion.

            The disability to appropriately sue a prosecutor is a gift given by the separation of powers. Prosecutors–at the state or federal level–are considered a part of the executive branch. Being a part of the executive branch has privileges that enable prosecutors to hide office conduct. In previous research, I reached out to various District Attorneys in California for the office conduct policies under the California Public Records Act (CPRA). Still, I was denied access to those documents simply by an assertion of executive privilege:

In this way, prosecutors can make bold decisions behind closed doors while hiding them away from public view. There is no adequate way to check this power, which sends legal scholars into a spiral. In a previous conversation with Stanford Law Professor Robert Weisberg, an expert on criminal law and criminal procedure, he said to me, “This is part of the larger separation of powers question as to who, if anyone, in another branch of government can force a prosecutor to bring a case the prosecutor doesn’t want to bring. This is a big unresolved question.” Flynn v. United States, where Attorney General Barr moved to dismiss charges against Michael Flynn, clearly politically motivated, is an example of vast prosecutorial discretion. Despite political interests being wide-open, there is very little we can do legally, causing outrage and chaos among citizens who see the disparate treatment in the justice system.

Poor people are the primary targets of the disparate treatment by prosecutors’ hyper-organized prosecution. To borrow the words of legal scholar Malcom Feeley,  “the criminal court is more like a marketplace.” The managerial model–the rapid process of arranging defendants and handing out plea bargains–survives through over-policing in communities and marking defendants for minor offenses. The rampant increase in jail populations for minor offenses can be attributed to this system. Approximately 70 percent of defendants are in pre-trial detention, and 555,000 defendants currently have not been convicted or sentenced. To quickly dissolve these cases, the court system relies on procedural hassles such as burdensome bail costs, poor jail conditions, and fear of facing trial, which predominantly target minorities and poor people. As revealed, Black men are six times more likely than white men to be arrested while Latinx men are twice as likely. 80 percent of this pre-trial detention population qualify for a public defender such as Shondel; in other words, people from this population belong to low-income backgrounds.

This unbalanced power dynamic hands prosecutors their most potent weapon: plea bargaining. Plea bargaining is threatening because it can corner a defendant, especially a poor defendant. Every discretionary exercise of a prosecutor—setting bail, charging, seeking mandatory sentencing—pushes a defendant into taking a deal. A helpless defendant like Shondel must take a plea bargain because he does not have the resources to combat the prosecutorial apparatus. Prosecutors can use their discretion to overcharge defendants with charges that cannot be proven beyond a reasonable doubt. This process is further reinforced by imposing mandatory-minimums that judges have no power to overrule. All these tactics are used to instill fear in defendants influencing them to take a plea bargain.

Why Are They So Powerful and Dangerous?

          Idealistically, prosecutors would decide to rehabilitate defendants into society using diversion; rather, they rashly use their powers to punish. Legal scholar Jeffrey Bellin claims judges, police, and legislators serve as meaningful checks on District Attorneys, but in reality, these actors are the prosecutors’ team. Prosecutors leech onto other court actors—police, judges, lobbyists—to nurture their power. Cops and judges embolden prosecutors to use discretionary powers to charge and bargain. In Riverside, California, for example, a young Black man was arrested after experiencing a mental crisis. Instead of redirecting him to mental health services, he now faces the threat of life in prison. The Sheriff played along and stripped mental health services in jail, consistent with the District Attorneys’ narrative. In Batson v. Kentucky, a judge helped remove a juror who the prosecutor did not want on the jury. The Supreme Court, however, reversed the decision citing it as racially motivated. Lastly, legislators do not wield political courage, as Bellin also suggests. Lawmakers are in the pockets of prosecutors and their massive unions. Most notably, the California District Attorney Association does not support bills that slashes their powers. As Professor Weisberg suggested, “The Cal DA’s Association is very powerful and scares the daylights out of the Legislature.” Therefore, political forces strengthen the prosecutorial powerhouse, dampening any chance of achieving accountability.

            In California, several propositions—referendums voted by state residents—to reform the criminal justice system have been enacted. Yet, most elected prosecutors have taken no public stance on these bills because they cannot be held accountable in private. In other words, propositions can pass overwhelmingly, but prosecutors can choose not to enforce them behind closed doors. Prosecutors’ disregard of public opinion reflects a lack of accountability and props them as unchecked authorities. I became curious about transparency policies among DAs in California and documented which offices published their records. My research revealed that transparency was close to nonexistent:

Conclusion: What if Shondel was Innocent?

If prosecutors used their discretion to better communities, we would not need to wield their power. However, prosecutors do not want to engage in such progressive discourse. Instead, they use discretion to dent the justice process by instilling fear and using other criminal justice actors as pawns to hurt poor people. It only makes us wonder, did the prosecutor bother asking if Shondel might be innocent? The answer, I would argue, is an unequivocal no. Shondel was just another case funneled through the court system without any consideration of his guilt. I can presume what Shondel’s only crime might have been: poverty. His story sums the harsh reality of prosecutors’ powers today.