Power of Prosecutors

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Who are the real decision-makers in the criminal legal system? Not judges. Not police. Not politicians. PROSECUTORS.

Prosecutors have an all-encompassing power to control every important decision that is made in a criminal case. They could use this enormous power to change the way our system operates. They could end mass incarceration. But instead, prosecutors are a driving force that contributes to overcriminalization, collateral consequences and the ever-increasing use of incarceration over other less harmful alternatives. Voters have the power to hold them accountable. But only voters understand their power and vote. 

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What is a prosecutor?

Prosecutors are the government officials charged with investigating and prosecuting crimes. Prosecutors have near-unlimited power to make all the most consequential decisions in a criminal case from beginning to end. 

Charge

Prosecutors decide whether to charge & what to charge. The charge controls the sentence a person can receive & may lead to other consequences, like loss of employment, eviction, or deportation.

Bail

Prosecutors request bail often knowing that a person cannot afford it. Bail holds people in jail even though everyone is presumed innocent.

Evidence

Prosecutors have control over the evidence, and in most states, have a ton of discretion about when to turn over witness statements, police reports & other information to the accused.

Plea

All plea bargaining is controlled by the prosecutor. They decide whether to demand prison or offer probation or treatment.They also decide what charge the person will plead to.

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The prosecutor has more control over life, liberty, and reputation than any other person in America. 

— Justice Robert Jackson, United States Supreme Court Justice (1941-1954)

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Now multiply that power by thousands

The top prosecutor in a city or county is called the District Attorney or State's Attorney. These elected officials may have up to hundreds of "assistant" prosecutors in major cities. Each assistant makes decisions on multiple cases each day. The elected official has the power to inspire their staff to: Critically question accusations. Hold police accountable. Seek truth over convictions. Consider fairness over punishment. Think creatively and realistically about public safety without resorting to fear & rhetoric. Eliminate racial disparities.

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Enormous Power Without Accountability

The United States is the only country that elects its top prosecutors. The electorate is supposed to hold these prosecutors accountable. But in reality, voters often do not know who their local prosecutors are or what they do in the courthouse.

With largely unchecked power, prosecutors have played a central role in the aggressive expansion of our criminal legal system; in the explosion in our Nation’s prison population; in the code of silence surrounding police misconduct; in the surge in the number of Americans with criminal records; in the tragedy of lives and families and communities whose potential is severely limited by those convictions.

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Every day, prosecutors cruelly place people in DOC custody without appreciating the horrors that await them once confined. As people continue to suffer and die in horrific conditions, the NYC jail population continues to rise and the vast majority of people held pre-trial because of unaffordable bail.

— Yung-Mi Lee, Legal Director, Criminal Defense Practice at Brooklyn Defender Services

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But only if we really understand their power

Just as prosecutors have the power to drive mass incarceration, THEY HAVE THE POWER TO END MASS INCARCERATION. Prosecutors make tens of thousands decisions every day, decisions that are invisible to the public. 

We need to understand these decision points in order to understand what we want from our prosecutors and how to demand that they fix the system. 

SO, LET'S BREAK THIS DOWN:

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01. The Power to Accuse

The unique power of prosecutors starts at the very beginning. Whether to charge a person at all & what crime to charge. The charge determines the sentence  a person faces and controls the plea bargaining process.

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02. The Power to Request Bail & Detain

Once charged, prosecutors decide whether to request bail that will trap someone in jail pretrial, presumed innocent, until their case is over. Most judges follow the recommendation of the prosecutor when setting bail. 

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03. The Power to Coerce Pleas

Prosecutors hold all the power in plea bargaining because strict sentencing laws with mandatory minimums have stripped judges of nearly all decision-making power. It's no wonder that 95% of all convictions are the result of pleas. People are afraid to assert their right to a trial.

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Accountability matters. Ask Your District Attorney and Candidates tough questions.

Charging Bail Evidence Pleas

The Power to Decline to Prosecute & Plea Bargain Compassionately

How will you prioritize decarceration in your charging decisions. How will you consider harsh consequences like loss of employment, housing, educational opportunity and the right to remain in the United States as a legal resident when deciding how to prosecute someone? What is your strategy for reducing the overrepresentation of people of color in the criminal legal system? How will you handle the cases of people who are struggling with addiction or mental illness?

The Power to Reduce Pretrial Detention

What will do you to ensure that no one is detained pre-trial only because they are poor? When considering whether to request bail, will you consider the consequences of detention to the person and their family, including the impact of the loss of a caretaker or breadwinner?

The Power to Promote Truth

Will you assure that witness statements, police reports and other evidence is provided to the defense early, and automatically? Will you turn over all such evidence before an accused is required to decide about a guilty plea? What will you do to make sure your staff does not withhold evidence? What will you do to review wrongful convictions? How will you reduce the likelihood of wrongful convictions of innocent people? Will you turn over the disciplinary records and any other reports of misconduct by the arresting officers to the defense? Will you conduct swift and thorough investigations of the evidence?

The Power to Heal

Will you consider incarceration as the last resort in plea bargaining? Will you create a wide range of options for people who have mental illness, abuse drugs, or have serious trauma in their past? Will you consider special options for women, young people, those with mental health issues, and other vulnerable populations? How will you supervise your staff to guarantee that they are using incarceration only as a last resort? To the extent you continue to seek prison sentences, what will you do to ensure jails and prisons provide education and skills so members of your community can successfully re-join society?

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