Biden’s justice reform should influence prosecutor appointments

Despite what you may have learned in civics class — or more likely from “Law & Order ”— it is prosecutors, not judges or juries, who are the most influential and powerful actors in our system of justice. 

During his confirmation hearing for attorney general, Judge Merrick Garland — quoting Supreme Court Justice Robert Jackson —observed that, “The prosecutor has more control over life, liberty, and reputation than any other person in America.” 

As Garland prepares to take the helm at the Department of Justice (DOJ) with a reform agenda in mind, President Biden and the Senate can better aid him and transform the United States’ criminal legal system with the appointment of U.S. attorneys — 93 nationwide — motivated, like Garland, to advance racial justice and undermine mass incarceration. 

A recent trend of electing reform-minded county and state level prosecutors provides a valuable model. A new crop of prosecutors from Texas, California, Pennsylvania and elsewhere recognize the institutional racism endemic to the criminal legal system and have taken steps to address the inequities that plague traditional law enforcement efforts. They have used their prosecutorial discretion to address police abuse and declined to require money bail for people awaiting trials. They have used their platform to call for decriminalization of drug laws and reevaluate life sentences for people who committed their crimes as youth. 

At the federal level, the DOJ may set new policy, but even the most well-intentioned leadership will need the help of U.S. attorneys to make reform possible. Moreover, on a day-to-day basis, it is the U.S. attorneys leading the district offices in each state that make most of the decisions about what cases to prosecute, what cases to turn over to state prosecutors and, more often than not, the sentences criminal defendants will serve. As a study of federal prosecutions in 2018 showed, 90 percent of federal criminal charges are resolved through plea bargains, while only 2 percent go to trial. The onset of harsh mandatory minimum sentencing that forces unwitting defendants to plead guilty to avoid extreme punishments, including in some instances at the federal level of life without parole for drug offenses, have greatly expanded prosecutors’ power even further since Jackson’s declaration.

As with other government agencies and institutions, U.S. attorney offices have limited resources. Like top state and local prosecutors, U.S. attorneys, as the leaders of their offices, must often use their prosecutorial discretion to decide which cases they will pursue. Will it be the drug possession case or the public corruption case? Will they mete out severe punishment by pursuing sentencing enhancements and charging defendants with multiple crimes related to a single criminal offense (known as charge stacking) or will they seek justice by pursuing diversion programs, treatment options and restorative justice when appropriate? Will they continue to automatically push for maximum penalties and overly harsh punishment or follow the lead of Biden and pursue the elimination of mandatory minimum sentences so that judges can consider an individual’s circumstances and apply leniency where it is merited? Will they oppose compassionate release for elderly and infirm people serving often overly long prison sentences or will they recognize that compassion, justice and public safety can be served simultaneously? 

The answer to these and so many other questions about the direction of our criminal legal system depends on who the administration and Senate place in these leadership positions. Nominating attorneys who have demonstrated track records of supporting and pursuing reform, and not just those who are willing to pay lip service, is a crucial first step. Nominees must understand the role that prosecutorial discretion has played in enabling and perpetuating the systemic racism in our criminal legal system. And they must commit to building an anti-racist justice system. Future U.S. attorneys must demonstrate the leadership and fortitude to confront and work to change the culture in too many prosecutor offices that value obtaining convictions more than achieving justice.

The opportunity to place reform-minded attorneys in these leadership roles will not only foment desperately needed change today, but as leaders in their offices, they will help shape a generation of reform-minded prosecutors for the future. The cost of not seizing this opportunity, in lives destroyed and lives lost, is too high for us to demand any less from this administration and Senate.

Russ Feingold is the president of the American Constitution Society. He served as a Democratic U.S. senator from Wisconsin from 1993 to 2011.

Amy Fettig is the executive director of The Sentencing Project, a national research and advocacy organization seeking to advance racial justice and end mass incarceration.