Ministers of Justice and Mass Incarceration

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a “law and order” perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped. Where were the lawyers when our criminal justice system was evolving into a system of mass incarceration? Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor. It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence. Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population. That is, over the past twenty years prosecutors have brought felony charges in more cases than ever before, resulting in a dramatic increase in prison admissions. If prosecutorial charging practices have been a major cause of the universally recognized mass incarceration problem, what should be done? How does the role of the prosecutor need to change to prevent a continuation, or a worsening, of our mass incarceration problem? This Article examines the recognized role of the prosecutor as a “minister of justice,” and makes a range of suggested changes to the prosecution function. These include re-calibrating the minister of justice and advocacy role balance in recognition of the current mass incarceration crisis; enacting measures to ensure independence from law enforcement in the charging function; collecting currently non-existent, objective data that breaks down and memorializes available information on each decision to charge as well as its consequences; and drafting written charging procedures and policies based on the collection of that data-driven information