District attorneys are among the most influential actors in the criminal justice system. They decide where to focus prosecutorial resources. They determine whether to charge the most serious provable offense or lesser offenses. They choose whether to stack charges, and whether to choose charges carrying harsh, mandatory minimum sentences. They decide what to offer in plea negotiations, and whether to threaten additional charges against uncooperative defendants.
All those decisions are more or less entirely up to district attorneys. They have virtually unlimited discretion in charging decisions and are given their way in the vast majority of plea bargains, which account for over 90 percent of criminal convictions.
Over the past few decades, both incumbents and challengers in DA races have focused on being “tough on crime” and aggressively prosecuting the War on Drugs. Moreover, an estimated 95 percent of incumbent DAs win reelection.
This has led to an almost uniformly punitive approach to criminal justice across the nation — even though crime has fallen to near-historic lows. Between 1994 and 2008, according to an analysis of state judiciaries, the number of actual crimes and arrests fell, but the number of felony charges went up.
That analysis shows that district attorneys are driving mass incarceration. While federal prosecutors are certainly punitive in their charging and sentencing decisions, most of America’s incarceration occurs at the state level, where DAs are in charge. 87 percent of American prisoners are held in state facilities.
It makes sense, therefore, for criminal justice reform to be achieved at the state and local levels. But how will anything change if most district attorneys remain committed to “tough on crime” and the War on Drugs?
The game may be changing. All across America, reformers committed to ending mass incarceration and the War on Drugs are running for election as district attorneys — and they’re winning.
Last year, reformer Larry Krasner was elected as the district attorney in Philadelphia. Since then, he has declined to prosecute any further cases of marijuana possession. And yes, he has the legal discretion to do that.
In the most recent round of primaries, at least two reformers won their party contests for district attorney. Defense attorney Faris Dixon won in Pitt County, North Carolina, while reformer Satana Deberry won in Durham County on a platform of resisting the War on Drugs, ending cash bail and holding police accountable for misconduct. Deberry faces no challenger in November.
Criminal justice reform should not be a partisan issue. There are demonstrable inequities in our system which need to be addressed. District attorneys are in a powerful position to help or hinder needed changes. This fall, pay close attention to your local DA race.
