Abstract
Prosecutorial misconduct has emerged as an important topic of inquiry in criminal justice due to its relation to mass incarceration. Prosecutors have enormous powers because they can decide whether to charge a defendant and what to charge that person with, among many other discretions. While it is not the duty of prosecutors to seek convictions, because constituents elect most prosecutors in the United States, having high conviction rates is regarded as a step toward reelection. Unfortunately, when prosecutors focus on winning, prosecutorial misconduct can take place. In Charged, Emily Bazelon explores innovative ways to transform American prosecution to end mass incarceration. In this book, Bazelon illustrates the cases of two individuals whose stories reveal some fundamental issues involving prosecutors. In one case, Noura Jackson was accused of murdering her mother and was found guilty solely based on circumstantial evidence.
Moreover, her prosecutor neglected to share potentially exculpatory information with the defense, thus violating a duty to disclose. The prosecutor also made an illegal speech regarding Noura’s decision not to testify to the jury at the trial, violating her Fifth Amendment right to not testify in her defense. Specifically, the prosecutor insinuated to the jury that Noura decided not to testify and that such silence was evidence of guilt. In Griffin v. California (1965), the U.S. Supreme Court, however, handed down a ruling that prosecutors should not suggest that defendants admit guilt just because they decide not to testify. The prosecutor, thus, violated Noura’s Fifth Amendment rights by commenting to the jury on her refusal to testify.
Although the Tennessee Supreme Court overturned her previous conviction after serving her 9 years in institutional corrections, Noura took an Alford plea that involves a guilty plea of a defendant who does not admit the guilt of the crime. In North Carolina v. Alford (1970), the U.S. Supreme Court ruled that defendants can plead guilty to something they say they did not do if the defendants think entering the plea can serve their best interest because there is a chance that they get convicted and receive more time if they decide to take it to trial. Noura thought that she might be convicted if she decided to go to trial, so she chose to plead guilty under Alford. Her case highlights a grave consequence that the misuse of prosecutorial power can bring about.
The other case provides a dramatic contrast by demonstrating a new approach to prosecutorial service. Instead of adopting a punitive approach that involves locking up every criminal as a response to crime, the reform-minded prosecutors seek to reduce mass incarceration and use their discretions in accordance with professional ethics. Kevin (a pseudonym) was a young African American from the Brownsville neighborhood of Brooklyn. He was charged with illegal gun possession; he picked up his friend’s gun and tried to hide it to protect his friends. While he could have received a mandatory 2-year sentence, his prosecutor allowed his case to be referred to a youth diversion program that could result in the dismissal of his felony charges. Kevin enrolled in a program and successfully completed it. Thanks to the prosecutor’s decision, Kevin could dismiss his felony charges, which could have caused significant collateral consequences in his life.
In her book, Bazelon incorporates a significant amount of research on mass incarceration and a critical analysis of the politics with respect to prosecutorial power into Noura and Kevin’s stories. Her narrations persuasively illuminate that it is essential that prosecutors shift away from punitive justice to end mass incarceration. Formulating specific strategies to achieve this end goal, Bazelon offers “21 Principles for 21 Century Prosecutors,” a list of examples that can guide prosecution reform. The first part centers on 10 principles to reduce incarceration. For example, Bazelon and her collaborators suggest that diversion should be implemented as a rule to conserve resources, to decrease recidivism, and to minimize the collateral harms associated with criminal prosecution. They also provide specific recommendations for each principle. They argue that there should be more diversion programs for people facing felony charges and misdemeanors. They also note that people should not be denied the opportunity to participate in a diversion program just because they cannot afford to pay the fee. They contend that programs should be provided based on a sliding scale that considers an individual’s income in setting fees.
Another suggestion that Bazelon and colleagues make is that prosecutors should use charge with restraint and plea bargaining fairly. Again, they listed specific recommendations associated with this principle. Specifically, they argue that prosecutors should not file the maximum possible charge as an automatic response and that prosecutors should not make a plea offer if they cannot prove the charge beyond a reasonable doubt. They also recommend that the use of sentencing enhancement based on criminal history or the presence of a weapon should be limited by requiring prosecutors to obtain approval from their supervisors.
On the contrary, Bazelon’s second portion of the guideline concerns 11 principles to increase fairness in prosecution. For instance, Bazelon and colleagues propose that the culture and practice of prosecution offices should be changed so that the use of prosecutorial power becomes more accountable and just. Specifically, they note that the prosecution office can collaborate with other agencies to collect data on various stages of prosecutorial decisions and outcomes (e.g., charging, plea disposition, and findings of prosecutorial misconduct). They also urge prosecution offices to adopt new performance standards that can encourage prosecutors to reduce incarceration and pretrial detention instead of incentivizing prosecutors to increase their number of convictions or trial wins.
Charged helps readers to see the issues involving prosecution through the two mentioned criminal cases (i.e., Noura and Kevin’s cases) and presents innovative ways to reform the prosecution. Despite her thorough examination of the American criminal justice system and specific recommendations to improve the quality of prosecution, it is uncertain that readers who do not share Bazelon’s political beliefs would be willing to accept her arguments. Nonetheless, Bazelon presents valid points that may serve to inform the progressive prosecution movement to transform the criminal justice system in the United States. This book can be useful to those teaching undergraduate and graduate courses about the court system. The instructor can encourage debate and critical thinking about the reform of the prosecution service. This book also contains specific policy recommendations that would provide increased insight to district attorneys and prosecutors regarding the ways to diminish incarceration and increase fairness in prosecution. Charged was published on April 9, 2019, by Random House and is listed with a cover price of US$28.00.
