Prosecutors’ role in deciding how long people stay in prison

April 15, 2020 CCRC Staff

A timely new article from CCRC board member Nora V. Demleitner, law professor at Washington and Lee University, considers the central role of prosecutors in determining who goes to jail and prison and how long they stay there. Demleitner reviews—as a “case study of prosecutorial authority”—prosecutors’ actions to reduce confined populations during the COVID-19 crisis. While prosecutors’ key role in charging and sentencing at the front end of a criminal case is well-established, in ordinary times their influence in its later stages, including in prison release decisions, is not so obvious. Professor Demleitner shows how the pandemic “highlights the tools prosecutors have at their disposal and how they can directly impact the size of the criminal justice system.” This in turn leads her to consider how “prosecutorial thinking” focused on public safety as opposed to public health “increasingly influences other branches of government” even in the midst of a pandemic.

Professor Demleitner’s article, “State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform,” will be published in the April 2020 issue of the Federal Sentencing Reporter. The abstract is included below:

State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative grants of authority to other players in the criminal justice system all serve to limit the freedom of prosecutors.

The public health threat COVID-19 presents to those detained in jails and prisons has turned into a case study of prosecutorial authority. It powerfully displays the sway political ideology, divergent purposes of punishment, and public safety considerations hold over release decisions. The prosecutors most successful in decreasing inmate population numbers quickly have been not only proactive but also able to build effective coalitions with other criminal justice actors.

Whether COVID-19 will in the long run lead to smaller jail populations and shorter prison terms remains an open question. Yet, it further reinforces and strengthens the role of prosecutors whose expansive reach into our communities—with an eye to incarceration or decarceration—continues to be a powerful feature of the American criminal justice system.

Read the article here.