If you aspired to high office in the 20th and early 21st centuries, this was sound advice: Get thee to a prosecutor's office. Politicians from both parties, from Democrats like John Kerry to Republicans like Rudolph Giuliani, parlayed prosecutorial perches into political power and nationwide fame.
The basic recipe for using a prosecutor's post as a springboard into politics required being “tough on crime,” protecting the public by putting criminals behind bars. The vast majority of state and local prosecutors in the United States are elected, and taking a punitive tack was generally considered to be the path to re-election — and, frequently, election to higher office. Prosecutors had strong incentives to be harsh rather than lenient (or merciful) when dealing with defendants, and those incentives helped shape the criminal justice system as we know it today. In the words of the law professor and historian Jed Shugerman, a scholar of prosecutors turned politicians: “The emergence of the prosecutor's office as a steppingstone for higher office” has had “dramatic consequences in American criminal law and mass incarceration.”
These consequences are on full display in “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration,” by Emily Bazelon, a lecturer at Yale Law School and staff writer at The New York Times Magazine. In “Charged,” a persuasive indictment of prosecutorial excess, Bazelon argues that the lawyers who work in the more than 2,000 prosecutors' offices around the country — conducting investigations, filing criminal charges and trying cases (or, much more commonly, striking plea bargains) — bear much of the responsibility for over-incarceration, conviction of the innocent and other serious problems of the criminal justice system.
“We often think of prosecutors and defense lawyers as points of a triangle on the same plane, with the judge poised above them: equal contest, level playing field, neutral arbiter,” Bazelon writes. But this is a misconception. As the Brooklyn district attorney, Eric Gonzalez, puts it to her: “It's all about discretion. Do you authorize the arrest, request bail, argue to keep them in jail or let them out, go all out on the charges or take a plea bargain? Prosecutors decide, especially, who gets a second chance.”
To show how prosecutorial power operates in the real world, Bazelon follows two young defendants through the system: Kevin (a pseudonym), a 20-year-old from the Brownsville neighborhood of Brooklyn who is charged with illegal gun possession, and Noura Jackson, a teenager from Memphis who is accused of murdering her mother.
Their cases are very different — one involving a victimless crime, the other the most heinous crime of all — and so are the district attorneys. Kevin's prosecutor is Gonzalez, an aspiring reformer and the first Latino to serve as Brooklyn's district attorney, while Noura's is Amy Weirich, a hard-charging attorney in the traditional law-and-order mold. Bazelon uses these contrasting cases to demonstrate that having the right (or wrong) prosecutor can make a huge difference — between justice tempered with mercy and grave injustice.
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