Across America, The Single Most Powerful Person in Local Criminal Justice Systems Operates With Near Impunity

For anyone who cares about transforming America’s criminal justice system, pivotal elections are fast approaching. It’s not the congressional elections we are talking about, though — it’s the more than 1,000 local prosecutors that will soon be up for election in counties across the country in 2018.

Criminal justice policy is shaped mostly at the local and state level, and elected prosecutors have more power than any other single actor to influence the trajectory of these policies. With more than nine out of every 10 cases resolved by a plea bargain where a judge has little or no role, prosecutors unilaterally decide who gets a second chance and who goes to prison and for how long. Mandatory minimum sentencing and other laws allowing extraordinarily harsh sentences have only increased prosecutors’ power to extract guilty pleas and prison terms. In addition, their extraordinary influence is wielded every year at the statehouse, where prosecutorial opposition can easily undermine or sink even modest criminal justice reform legislation.

The upcoming elections of local prosecutors come at a unique and potentially fragile moment. After years of steadily building power and momentum, criminal justice reformers are now facing a federal government enthralled with brutal and ineffective ’90s-era criminal justice policies. The outcome of these local prosecutor elections may prove to be the most significant in history for the movement to end mass incarceration.

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Research suggests that prosecutors’ “tough on crime” practices have been a major driver of mass incarceration over the last several decades. Yet polls suggest that majority of the American public — across demographics and across the political spectrum — prefer second chances and treatment over long prison sentences and overflowing jails.

If this is true, why do “lock ‘em up” prosecutors keep getting elected?

Although prosecutors are politicians elected to serve their local communities, they rarely have any incentive to act like it. In 2016, more than 70 percent of prosecutors ran unopposed. District attorneys who decide not to run for re-election can maintain control by resigning and picking a successor who then runs as an incumbent.

For the most part, voters say they have little understanding of what a district attorney does or the extraordinary impact a prosecutor’s decisions have on their local community. Research has also shown that high percentages of voters who cast a ballot for their county supervisor or mayor do not go down the ballot to vote for their district attorney.

In between election years, prosecutors operate with near impunity. State oversight over district attorneys is notoriously ineffective. Prosecutors’ budgets are often approved without question by county boards despite the fact that it is the prosecutor’s decisions that drive a county’s biggest expenses — the county jail. Lawsuits seeking to hold prosecutors accountable in court for unconstitutional policies are rare, in part because prosecutors have broad legal immunity from suit in many cases.

Finally, prosecutors have long shielded their actions from public scrutiny, making basic information about their policies or data on the outcomes of their decision-making unavailable. This lack of transparency prevents the public from holding prosecutors accountable.

The outcome of these local prosecutor elections may prove to be the most significant in history for the movement to end mass incarceration.

But times are changing. In 2016, an ever-increasing awareness of prosecutors’ authority swept new prosecutors into office on the promise of reform, from Houston to Chicago to Kansas City to Orlando. The electability of these reformers proved that a growing number of Americans are fed up with criminal justice practices that are shamelessly punitive, tear apart low-income communities, and target people of color.

This year, the ACLU’s Campaign for Smart Justice, dedicated to reducing the number of people in prisons and jails by half while reducing racial disparities, announced a new initiative to transform the incentives that drive prosecutors. This initiative aims to directly tackle the unchecked prosecutorial power that has been such a major contributor to mass incarceration.

Over the next three years, the Campaign for Smart Justice will support state ACLU offices in educating voters about the importance of elected prosecutors and on ways to hold them accountable between elections. The campaign will fight for legislation to require prosecutors to make their policies and data public and for laws that would create or strengthen oversight of these offices. And finally, prosecutors who violate the constitution to get convictions or otherwise flout the law should expect to see the ACLU in court.

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Anonymous

We need a people's court that can bring prosecutors and judges to trial for their criminal and inhumane actions. Think Robespierre!

Anonymous

Plea Bargains will get you out of Jail.

A case where the person was stopped for failure to maintain lane by crossing the fog line. The white line on the right side of the road did you know it is against the law to cross the fog line. You can be pulled over for this by an officer that didnt see it happen. But at the request by another officer that claims to have seen you cross the fog line (whether you remember crossing the fog line or whether you heard the rumbly sound that is made when you cross the fog line) the interdiction officer called ahead and told the office that stopped you that reason for the stop was another officer saw you cross the fog line. Whether you did it or not. You get stopped and 3 to 4 officers are on the scene. The reason for all the officers when all you suposedly did was cross a fog line. Thats a lot of time and money for that many officers. just A SLOW NIGHT. When you get their video of the Stop and While you are sitting in your Car 1 officer is standing at the back of the car has his hand on his gun ready to draw his weapon. They are there because they have trap and trace your cell phone and you are on GPS. You pass the breathalyzer you pass their eye test. They want you to walk stand and turn, which is all for evidence to be used against you. You've passed everything, but they still need their made up probable cause because you would not willing let them search. They continue to stall they make you wait another 15 mins for a drug dog, that only alerts on the 3rd pass out of the camera view. Not where the prescription medicine is located or what they call suspected contra band is located. Prescription Medication in the name of Parent that had died a year earlier. 1st court appearance before they even call your name DA offers probation for 5 years. It makes no difference what the situation is you will take the plea to get out of going to the Courts once a month. And stop having to be off work whenever they decide to have a court appearacne. Plus how long can you keep coming up with $ 7,500 for attorney that seems to be working for the DA. Because you get a call from your Defeense attorney who tells you that she has been on the phoe with the DA and you dont have to appear in court on a scheduled date. You listen to your Attorney and dont go to Court because Attorney and DA said you dont have to be there. The DA wasnt in court that day (little strange Huh? THE DA not there to confirm his conversation with defense attorney) no one was there say that he had excused the defendant. Your Defense Attorney's statement is that she takes full responsibility. But she is not the one that goes to jail. You get a call from defense Attorney wanting to know why you arent in Court. When you finally get someone to cover for you at work, you arrive after the courts have locked the doors. The judge throws you in jail for failure to appear. You will take a plea.

Rob Robinson

Actually, police stopping someone without probable cause of a felony crime, is a violation of the 4th Amendment, akin to British soldiers stopping colonists at gunpoint and extorting money/valuables from them...which, in point of fact, was the whole reason for the creation of the 4th Amendment.

It also constitutes Treason of their Oath to abide by, and support and defend the Constitution (and the Constitution of the State).

Enojado

I have been saying these same things for years! Until we hold prosecutors accountable, they will continue to abuse us.

Rob Robinson

There's actually two, really simple ways to hold Prosecutors liable, but because the vast majority of Americans are ignorant of the Constitution of the United States, they are ignorant too, of the remedies provided for by the Constitution.

1. Jury Nullification. Juries have the Authority and Power, to nullify laws, simply by finding accused Not Guilty of a Crime - regardless of how much evidence is provided to prove that a certain law was violated - where they don't believe a law should exist for that particular behavior. In Example; a guy gets arrested and charged with Picking Nose in Public, the Jury can decide - hey, no harm was caused to anyone or their property, government should not have the ability to suspend our liberties where the only victim is the guy, at the hands of government.

2. Article VI, Clause 3 of the Constitution mandates that; "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, AND ALL EXECUTIVE AND JUDICIAL OFFICERS, BOTH OF THE UNITED STATES AND OF THE SEVERAL STATES, SHALL BE BOUND BY OATH OR AFFIRMATION, TO SUPPORT THIS CONSTITUTION; but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States." Violations of Due Process, constitute TREASON of their Oath to support the Constitution, by violating accused rights by multiple means, including but not limited to; Wrongful Accusation, Perjury, Manufacturing of Evidence, False Testimony, Suppressing Evidence.

How does the second option get implemented?

"No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on confession in open Court." - Article III, Section 3, Clause 1, sentence 2.

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