Mass incarceration a product of prosecutorial power, journalist says

Emily Bazelon

Many factors have led to the trend of mass incarceration in America, but one of the main causes is the overarching power of prosecutors, according to Emily Bazelon, a journalist and author who spoke at Arizona State University on Tuesday.

“We have created a machine of punishment that is pumping at a tremendous velocity,” said Bazelon, author of the 2019 book “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.” She is a staff writer for The New York Times Magazine and is the Truman Capote Fellow for Creative Writing and Law at Yale Law School. 

“That machine was a response to a rise in crime in the 1980s, a product of the war on drugs, a fear that America was not a safe place and a conviction, not based on evidence, that putting people in jail was what we needed to do to keep America safe,” she said. Bazelon spoke at the 20th annual John P. Frank Memorial Lecture, presented by the School of Social Transformation at ASU.

“What I discovered in my reporting is that prosecutors have amassed a great deal of power in the past decades in America and this has distorted our perceptions of justice. It’s not the only factor contributing to mass incarceration but it’s one we’ve been underappreciating,” she said.

In the 1970s, America had about a fifth the number of people incarcerated as now, she said. Over the decades, the United States has far surpassed other countries’ incarceration rates, even as the crime rate has declined.

One factor is a spate of minimum-sentencing laws passed by states, which led to situations like one Bazelon described in which a homeless man got a life sentence for breaking into a food pantry.

“Jail is criminogenic. Smoking causes cancer. Jail causes more crime.”

She described a huge study done in Texas comparing people who were released on bail with people who could not come up with bail and were imprisoned.

“It turned out that if the people in jail had been let go, there would have been 5,000 fewer crimes committed. We’re seeing the corrosive effect jail has on peoples’ lives. It makes them desperate.”

Another factor driving up incarceration rates is the power of prosecutors to stifle the right to a trial. Prosecutors often threaten defendants with the maximum sentence to cow them into not taking a chance at trial and instead pleading guilty and accepting a shorter prison term, even if they are innocent.

“Trials are dramatic but they are a vanishing breed in America. In a lot of states, 98% of convictions are obtained through plea bargains, where the negotiating happens behind closed doors,” she said. This prevents the open airing of the justice system, including evidence gathering by police.

A series of decisions by the Supreme Court decades ago had the unintentional effect of insulating prosecutors from any attempt to rein in their power, she said. They cannot be personally sued and do not face repercussions from their peers, even for egregious misconduct such as hiding exonerating evidence, she said.

Another factor driving mass incarceration is how a crime is defined. Bazelon noted that many acts of wrongdoing are criminalized when they are more likely to affect poor people and people of color. For example, jumping a subway turnstile can lead to prison but running a red light in a car would not. 

“White people are more likely to own guns but people who are arrested for gun possession are more likely to be of color. There is the same rate of drug use across races but people of color more likely to be penalized for it,” she said.

“What are the categories of people we treat as scary and violent and why do we make those assumptions?”

Bazelon said the tide seems to be turning, starting with a big slate of reform-minded prosecutors elected in 2016. For example, the new prosecutor in Philadelphia has promised to try to charge people at the bottom end of sentencing guidelines. 

In most states, including Arizona, prosecutors are elected, and that is one way that citizens can make a change, she said.

“There is increasing bipartisan support for electing public officials who are promising to do things differently,” she said, noting a poll that found that 71% of respondents of all political parties said it’s important to reduce the prison population.

“This is not such a divisive issue. President Trump was proud of the criminal justice reform bill that he signed last year,” she said.

The problem is convincing the general population that this is a crucial issue in the midst of all the political turmoil they face every day, she said. 

“It’s starting to change because we have 70 million people who have criminal records, so the idea that this is someone else’s problem is increasingly implausible,” she said.

Another factor that might change the trend is the opioid crisis, which is disproportionately affecting white, rural populations. 

“We’re seeing incarceration coming down in cities and going up in rural areas, and I do wonder as more white people get caught up in the system if we’ll see increasing energy to change it.”

Top photo: John P. Frank Memorial lecturer Emily Bazelon talks with School of Social Transformation students, faculty and alumni on Jan. 28. She is a staff writer for the New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She spoke on justice issues ranging from rethinking the power imbalance caused by wealth to the idea of restorative incarceration that turns prisoners into good neighbors. Photo by Charlie Leight/ASU Now