How bad prosecutors fuel America’s mass incarceration problem

There are a lot of reasons why America’s criminal justice system is broken, but if Emily Bazelon is right, one of the biggest is overzealous prosecutors.

There are a lot of reasons why America’s criminal justice system is broken, but if Emily Bazelon is right, one of the biggest is overzealous prosecutors.

A legal reporter for Time magazine, Bazelon explores the near-unregulated power of American prosecutors in her new book, Emily Bazelon

While people are in jail or prison, they don’t commit crimes outside of jail or prison. Criminologists refer to this as “incapacitation,” and it’s also true that some people are deterred from committing crime by the threat of going to prison. Some resources say that a combination of incapacitation and deterrence might be responsible for a third of the drop in crime since the ’90s. I think that’s a little up for debate, but surely it’s part of the story.

The thing is that we are so far past that point now that it’s almost not relevant. At this point, what we’re talking about is the increased deterrence effect of having a sentence of, like, 10 years versus five years, right? We’re not talking about whether to send people to prison at all. We’re talking about these very long sentences we’ve got in the United States.

It’s just really hard to argue that those long sentences are necessary for deterrence, especially when you start talking about the way in which imprisoned people are more likely to commit crime when they come out.

Sean Illing

You claim that prosecutors also “hold the key to change.” How can they smooth out all the asymmetries in this system?

Emily Bazelon

It definitely starts with local voters. When local voters rise up and decide that they don’t want a “tough on crime” DA, and they elect someone who comes in and says, “You know what, I’m going to decline prosecuting all this low-level nonsense. I want to concentrate my resources on putting people who committed murder in prison, and in solving homicides.”

One of the most shocking statistics to me about law enforcement in the United States is that we only solve 60 percent of murders nationally. In some cities, the rate of solving shootings is in the teens or 20s. We’re just talking about a lot of scary violent crime where we don’t find the person who did it. A lot of the reason for that is people in these communities don’t trust law enforcement. They’re not going to call the cops. They don’t want to show up as witnesses.

When we have this overincarcerating system, we become less legitimate in the eyes of the people who are impacted. If you lose their trust, then people don’t follow the law as reliably, and they don’t help you solve crimes.

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