prosecutors' decisions have driven growth in U.S. prison population

The number of persons held in U.S. prisons has risen since 1980 to extraordinary heights.  Neither incarceration for drug offenses nor longer prison sentences factually accounts for the enormous growth of incarcerated persons.  The most important factor is prosecutors’ decisions; specifically, an increasing proportion of arrests for which prosecutors file felony charges.[1]  The pressures, incentives, and regulations that shape prosecutors’ decisions largely make the barbaric U.S. criminal justice system.

Most U.S. criminal charges are resolved through plea bargaining.  Among federal criminal cases in which prosecutors brought charges in 2009, 88% were resolved through plea bargaining.  Judges dismissed 9% of those cases.  Only 3% of cases went to trial.  Among cases tried, only 16% did not result in a conviction.  Cases that go to trial probably represent defendants who greatly misjudge how the criminal justice system actually works, or who insist on principle on having a trial.  The government has much greater ability to marshal and expend legal resources than do most defendants.  Not surprisingly, the vast majority of federal defendants lose at trial.  Public interest in the functioning of the criminal justice system hasn’t been sufficient to impel the difficult task of collecting and compiling nationally state statistics on criminal court case dispositions.  State criminal case statistics, which are less comprehensive than federal statistics, indicate that only 4% of prosecuted felony cases are resolved through trials.[2]

Plea bargaining is largely lawless.  U.S. criminal law has become a heap of over-lapping statues that collectively allow almost unlimited punishment of anyone.  The Aaron Swartz case provides a tragic example of the possibility to threaten punishment far beyond any common understanding of justice.  The Anti-Deficiency Act, under which federal government workers were furloughed, arguably makes voluntary work by a furloughed federal employee a felony crime with punishment of up to two years imprisonment and a $5,000 fine.[3]  Moreover, like many criminal laws, the number of counts that can be brought isn’t well specified.  A prosecutor could bring a separate count for each “act” of work, such as a quarter-hour timesheet work increment.  So an employee who voluntarily spends six hours responding to 100 emails demanding to know what the effect of the furlough will be on a government proceeding could face charges threatening up to 48 years of imprison (one count of voluntary work for each 15 minutes of work) or 200 years of imprisonment (one count of voluntary work of each act of email returned).  The prosecutor could offer the defendant-worker a guilty plea to an act of prostitution and sex offender registration in return for dropping the charges of voluntary work.  That’s legal in the U.S. criminal justice system.  A prudent defendant might well choose to accept that plea bargain.  That’s obviously not just.  To the extent that justice is done in the U.S. criminal system, it occurs mainly through prosecutors’ personal respect for doing justice.

Political, legal, and ethical checks on prosecutors’ decisions are largely non-existent.  Elections of prosecutors are generally not contested, and many prosecutors serve many years in office.  More political pressure on prosecutors isn’t likely to advance justice, but as for any official, complacency, arrogance, and corruption are risks with entrenched power.  In Connick v. Thompson (2011), a district attorney was absolved of liability for prosecutors’ failure to give to the defense evidence indicating that the defendant was innocent.  Only after an investigator uncovered that evidence was the defendant’s conviction overturned.  The convicted defendant faced imminent execution after having been held in prison for fourteen years.[4]  Prosecutors are seldom disciplined for ethical violations.  In 381 homicide cases in 1999 for which prosecutors’ misconduct resulted in a reversed conviction, not a single prosecutor was publicly sanctioned.  In 707 cases in California between 1997 and 2009 in which judges explicitly found prosecutors’ misconduct, less than seven prosecutors were publicly subject to professional disciplinary action.[5]  Hundred of prosecutors across the country sell the use of their letterhead to debt-collection agencies.  Like all humans, prosecutors respond to incentives and constraints.  Prosecutors have very weak constraints on their professional behavior and professional incentives to imprison persons.

Every single person, including victims of crime and alleged criminal offenders, deserves to receive justice.  Creating a system that does justice in the real world is difficult.  Perfection cannot be expected.  Yet one must recognize systemic reality: the U.S. imprisons an extraordinary number of persons with almost no due process of law.  That’s unjust and shameful.

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Data: U.S. criminal case disposition statistics (Excel version).

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[1] Pfaff (2011).  Pfaff has written a series of blog posts outlining the argument.  See his posts on prison growth, defining drug crimes (part 1 & part 2), evidence against the war on drugs causing mass incarceration, evidence against war on drugs causing racial composition of prisons, more complicated arguments about drugs and prisons, longer sentences haven’t caused prison population growth (part 1 & part 2), better explanations for growth of prison population, central role of prosecutors in prison growth, and prosecutors have driven prison admissions.  Pfaff discusses how the standard story about drug criminalization and imprisonment lacks a sound factual basis, but is nonetheless continually repeated, included in well-regarded publications.  He also documents appallingly superficial “expert” discussion of media violence and violent crime.  His discussion of allocation of criminal justice authority is provocative.  Pfaff’s work, in my judgment, is by far the highest quality empirical work available on the criminal justice system.  For Pfaff’s academic-style articles, see his SSRN author page.

[2] Based on U.S. Bureau of Justice Statistics, Federal Justice Statistics 2009 – Statistical Tables, Table 4.12; and Felony Defendants in Large Urban Counties, 2006, Table 11.  Non-federal cases have a higher share of cases dismissed relative to federal cases (23% compared to 9%) and a higher share of other dispositions (8% compared to 0% reported).

[3] See 31 USC § 1342 – Limitation on voluntary services and 31 USC § 1350 – Criminal penalty.  Matt Kaiser, a federal criminal defense attorney, discusses the significance of these laws in “Congress Hates Federal Employees So Much That Employees Who Volunteer for the Government During a Shutdown Can Go to Prison,” Huffington Post, Sept. 27, 2012.

[4] Here’s the Connick v. Thompson majority opinion and dissent.

[5] Keenan et al. (2011) p. 220.


Keenan, David, Deborah Jane Cooper, David Lebowitz and Tamar Lerer. 2011. “The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct.” 121 Yale L.J. Online 203 (2011).

Pfaff, John F. 2011. “The Causes of Growth in Prison Admissions and Populations.” Social Science Research Network (SSRN).  July 12, 2011.

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