April 23, 2019

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How Tough-on-Crime Prosecutors Contribute to Mass Incarceration

How Tough-on-Crime Prosecutors Contribute to Mass Incarceration
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Bazelon interweaves Kevin’s and Noura’s stories with a remarkable amount of academic research by law professors, criminologists and other social scientists. The endnotes, replete with charts and graphs, run to more than 50 pages and acknowledge intellectual debts to such thinkers as Angela J. Davis, Paul Butler, Michelle Alexander and William Stuntz. This combination of powerful reporting with painstaking research yields a comprehensive examination of the modern American criminal justice system that appeals to both the head and the heart.

The study of criminal justice is the study of power, and as a veteran legal journalist, Bazelon has long been concerned with this theme. Her last book, “Sticks and Stones,” explored the culture of bullying and painted a nuanced portrait, rejecting a simple dichotomy between blameworthy bullies and innocent victims. “Charged” is considerably less balanced — in, say, its discussion of plea-bargaining, which Bazelon (convincingly) asserts is used to excess without sufficiently acknowledging its necessary role in the system, or of pro-prosecutor rulings by the Supreme Court, which she analyzes almost entirely from a public-policy perspective with little focus on their legal reasoning. This could cause readers who do not share Bazelon’s politics to dismiss her core argument. But to the extent that it’s a polemic, “Charged” reflects its author’s passion for her subject. “As a journalist,” she writes, “I’ve never felt a greater sense of urgency about exposing the roots of a problem and shining a light on the people working to solve it.”


Bazelon doesn’t go easy on prosecutors, but at the same time she believes that American prosecution can heal itself. Discussing a group of young, diverse, reform-minded prosecutors whom she calls “the New D.A.s,” she argues that “prosecutors also hold the key to change. They can protect against convicting the innocent. They can guard against racial bias. They can curtail mass incarceration.” In a lengthy appendix, she offers “21 Principles for 21st-Century Prosecutors,” a road map for those interested in reducing incarceration and increasing fairness in the justice system.

Which of Bazelon’s two visions for the future of American prosecution will carry the day: a continuation of the deplorable status quo or a revolution in fairness led by “the New D.A.s”? Recent developments offer reason to be hopeful. As was true of the factors that led us to the current sad state of affairs, it’s all about incentives.

The movement to reform the criminal justice system enjoys support from across the political spectrum, from Black Lives Matter activists trying to protect minority communities to libertarians like the Koch brothers troubled by government overspending. In December, Donald Trump, who campaigned for the presidency on a law-and-order platform, signed the First Step Act, a bipartisan package of sentencing and prison-condition reforms.

This broader criminal justice reform reflects, and also contributes to, changing views of prosecutors. No longer simply the women and men who wear the “white hats,” prosecutors today are seen — and properly so — as major players in the criminal justice system who can do great harm as well as good.

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