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Perspective

America's Justice System Has the Wrong Goals

Two former prosecutors argue that we need a justice system that rewards prosecutors for reducing incarceration.
The Manhattan Criminal Courts building, New York, New York
The Manhattan Criminal Courts building, New York, New YorkAllison Joyce/Reuters

The image of a hard-charging prosecutor imploring a jury to throw the book at a defendant is a familiar scene that has played out in the country’s courtrooms—not to mention on its television screens—for decades. But today, that picture is changing as prosecutors and the public are increasingly recognizing the role these lawyers can play in bringing about a fairer and more equitable criminal justice system. Here we examine legislation and policies that have been introduced, and in some cases passed and implemented, at the federal, state, local, and office levels to facilitate this change, as well as presenting further solutions for rethinking what a successful justice system looks like.

Prosecutors are powerful actors who enter a defendant’s life at a critical juncture. They decide what charges to bring, if a case will be deflected from the justice system entirely, and whether to seek pretrial detention or cash bail—decisions that are the difference between incarceration and freedom. They hold the upper hand in plea bargaining (the pathway by which 94 percent of cases are resolved), determine whether someone will be judged by a jury of peers, or whether the case will be determined through a disposition offered by the prosecutor in exchange for a guilty plea. And their recommendation at sentencing is a powerful one: They can feed the epidemic of mass incarceration as many of them have for many years, or they can, instead, take steps to reverse it.