Conclusion

Prosecutors are not powerless. Indeed, virtually every criminal justice outcome can be traced to a prosecutor’s decision. But this exercise—“six degrees of prosecution”—can be conducted with many other criminal justice actors. For every prosecutor who asks for a high bail or severe sentence, there is a legislature that authorized the result and a judge who imposed it. Every story about a reform bill that died in the legislature after opposition from prosecutors is a story about a prior legislature’s severity and a present legislature’s failure to enact reform. Every critique of a prosecutor’s refusal to charge a police officer for an illegal shooting rests against a backdrop of a police officer who pulled the trigger, and a longstanding pattern of judges and juries reluctant to convict in police violence cases.231 Even the most sophisticated critique—that prosecutors control outcomes through plea bargaining—ignores that defendants must agree to any plea deal and that their agreement depends on the background decisions of judges, juries, and legislators. Prosecutors are one of the many important actors who populate the criminal justice ecosystem. Police, legislators, judges, governors, and parole boards are important too. The cacophonic rhetoric of prosecutorial dominance, however, ignores the agency of these other actors, fostering a rhetorically pleasing, but hopelessly flawed understanding of the criminal justice system. This blinkered approach overlooks the powerful forces that can and do constrain prosecutors and diverts attention from the most promising sources of lasting reform, like legislators, judges, and police, to the least.

Read the Full Report from NYU Law Review: NYU-Law-Review-The-Power-Of-Prosecutors-May-2019