Though the public often thinks of criminal justice in terms of police, judge, and jury, prosecutors actually control more of the sentencing process than any other group. Prosecutors are lawyers and elected officials who work for the government, whether local or national, and they take over the case once a person is charged with a crime. They decide whether to bring charges, negotiate plea deals, and make bail recommendations. If a case comes to trial, prosecutors work to create a case against the accused, and make sentence recommendations in the case of conviction. In a deeply unjust and dysfunctional criminal justice system, prosecutors are the people most responsible for outcomes, though they often operate largely out of the public eye.
Ninety percent of the criminal cases in this country are resolved by plea bargain rather than trial. In these cases, prosecutors are almost solely responsible for the outcome. Due to our country’s long jail stays and the difficulty of creating a defense without money for an expensive lawyer, many defendants plead out rather than face a trial, whether or not they’re guilty. Prosecutors are then the only person directly responsible for their sentence.
In a country that has the world’s highest incarceration rate, prosecutors are the people who hold the greatest responsibility for our system. Their legal interpretations affect thousands of innocent people. In New Orleans, prosecutor Leon Cannizzaro has jailed rape victims who refused to testify against assailants. Kamala Harris threatened to lock up the parents of truant children. Prosecutors are also overwhelmingly white and male. Their decisions have created disparities like the enormous sentencing differences between defendants who use crack cocaine—more likely to be people of color—and those who use powder cocaine, more likely to be white. Five grams of crack cocaine carries a five-year minimum sentence. For powder cocaine, a five-year minimum sentence would take possession of five hundred grams.
Public defenders, the lawyers who defend those who cannot pay a lawyer, work at a great disadvantage. Prosecutors spend far more time with the evidence, witnesses, and other aspects of a criminal case than public defenders can. Public defenders may work with clients they can spend hours, or even minutes, creating a case for. Prosecutors are often involved in a criminal case from the start of the police investigation, with constant updates on evidence and witnesses.
The good news is that prosecutors are elected. They can be voted out of office for unfair or overly aggressive tactics. Prosecutors need to be re-elected, and they are influenced by voter opinion in a way groups like the police are not. As a voter, you can follow the records of your local prosecutors and let them know whether or not their work represents your values.