How Do Prosecutors Impact Incarceration?

There are three significant ways in which prosecutorial power feeds mass incarceration: abuse of discretion, misconduct, and political influence. Prosecutors’ aggressive use of discretion, while legal, has sent more and more people to prison even as crime rates and arrests have dropped off. Prosecutors have increasingly filed felony charges in an effort to be perceived as “tough on crime” and in the name of public safety — but at what cost? The exponential growth of the U.S. prison population has placed a substantial economic burden on taxpayers and, more importantly, it has torn apart the social fabric of communities ravaged by mass incarceration. Moreover, social scientists have determined the incarceration rate is now so high that the excessively punitive approach of prosecutors is likely harming, rather than benefitting, public safety.[1]

Prosecutorial misconduct, while less prevalent, is particularly problematic because it epitomizes the imbalance of power that exists in the criminal justice system. Public defenders can do little else but hope that prosecutors are doing the right thing, for the law affords them only nominal resources to pierce the veil that conceals prosecutors’ decision making and treatment of evidence.

Throughout the country, prosecutors wield tremendous political influence. In many localities, legislators feel unable to challenge the policies of the district attorney or sheriff for fear of political backlash. At the state level, many district attorneys have proven persistently resistant to any meaningful reform.

I. Prosecutorial Discretion

The rigorous data analysis presented in John Pfaff’s Locked In signaled that the breadth of prosecutorial discretion requires far greater attention. Over the last four decades, mass incarceration has been primarily driven not by crime rates, drug arrests, or longer stays in prison, but by admissions to prison, spurred by decentralized prosecutorial decision making.[2] Strike laws, other repeat offender laws, mandatory minimums, gun enhancements, and long maximum sentences alone did not drive mass incarceration, but they served to augment the prosecutor’s power. Taken together, these laws made a prosecutor’s threat to go to trial riskier for the defendant, and they are regularly used as bargaining tools a prosecutor can offer to drop during the plea process in exchange for a deal.[3]

Throughout the 1990s and 2000s, crime fell, arrests fell, and time spent in prison remained fairly constant. As Pfaff writes, during this time, “the probability that a prosecutor would file felony charges against an arrestee basically doubled, and that change pushed prison populations up even as crime dropped.”[4] The prosecutor has the authority to slap someone on the wrist with a misdemeanor, crush that person with a felony charge, or even charge them with nothing at all. Aggressive prosecutors have become the most powerful actors in the criminal justice system, and judges’ influence in criminal cases has concomitantly receded: 97 percent of federal convictions and 94 percent of state convictions result from guilty pleas.[5] However, virtually no data is collected from prosecutor offices in any systematic way, and as a result we know next to nothing about how they choose which cases to pursue and which ones to dismiss; how they choose the charges they file in individual cases; and how they operate at plea bargaining.[6]

II. Prosecutorial Misconduct 

Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of their professional duties. In Berger v. United States,[7] Justice Sutherland explained that prosecutorial misconduct meant “overstep[ping] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”

Prosecutorial misconduct can manifest in a multiplicity of ways. According to the Innocence Project, some of the most common forms of misconduct include:

i. Withholding exculpatory evidence from defense;

ii. Deliberately mishandling, mistreating, or destroying evidence;

iii. Allowing witnesses they know or should know are not truthful to testify;

iv. Pressuring defense witnesses not to testify;

v. Relying on fraudulent forensic experts;

vi. Making misleading arguments that overstate the probative value of testimony.[8]

Bennett Gershman, a professor at Pace University School of Law and a leading expert on prosecutorial misconduct, notes that misconduct in all forms exacts an enormous toll. Scarce taxpayer resources are spent to litigate and re-litigate cases involving misconduct; public confidence in the criminal justice system is eroded and the public’s faith in the integrity of criminal trials is undermined; and, most tragically, prosecutorial misconduct devastates the lives of innocent people and their families.[9]

According to the National Registry of Exonerations, a project at the University of Michigan Law School, 933 of the nearly 1,800 exonerations to date involve official misconduct by prosecutors, police, or other government officials.[10] The National Registry of Exonerations’ most recent report found that an unprecedented 84 exonerations, or roughly 60 percent of the total exonerations in 2017, resulted from official misconduct.[11] Moreover, official misconduct accounted for 84 percent of homicide exonerations in 2017.

Justice Clarence Thomas purported in his majority opinion in Connick v. Thompson that discipline and sanctions from state bar associations, as opposed to civil or municipal liability, are a sufficient deterrent to prosecutor misconduct.[12] However, both prior to and, importantly, after the Thompson case, state bar associations have proved demonstrably inadequate in holding prosecutors to account. A 2010 report by the Northern California Innocence Project cited 707 cases in which state courts found prosecutorial misconduct over 11 years, but only six of the prosecutors were disciplined, and the courts upheld 80% of the convictions despite their improprieties.[13] Moreover, no real check on misconduct exists within the appellate process. On the contrary, the so-called “harmless error rule” requires a court to uphold a conviction when it believes the evidence is sufficient to support it, even with irrefutable proof of misconduct. This rule essentially communicates to prosecutors that their misconduct will not be evaluated according to legal or ethical standards. Instead, they have the ability to “play the odds” that an appellate court will overlook their misconduct, as long as the remaining evidence is passable.[14]

Lack of transparency represents another critical obstacle to eliminating prosecutorial misconduct, for although prosecutors are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is notoriously challenging for the defense to discover whether the prosecution is complying with this obligation.[15] Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory. As Judge Alex Kozinski, formerly of the Ninth Circuit, writes:

If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.[16]

The U.S. Supreme Court ruled out torts law as an option for plaintiffs nearly a century ago.[17] Now, even a prosecutor who knowingly submits fabricated evidence in a case that causes the wrongful conviction — or even the execution — of an innocent person cannot be personally sued for damages.[18] However, California passed a law in 2016 that holds a prosecutor can receive up to three years in prison for altering or intentionally withholding evidence that defendants might use for their exoneration.[19] Perhaps this law will serve as an impetus for other states to start taking prosecutorial misconduct seriously.

III. Prosecutors’ Political Power

Prosecutors hold immense political power, at a national, state, and local level. Their political power has fed tough on crime attitudes and their sway in state legislatures has slowed attempts at reform. In May of 2017, Attorney General Jeff Sessions ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.”[20] The National District Attorneys Association, which represents thousands of elected and appointed state and local prosecutors, supported Sessions’ regressive policies in a statement published shortly after Sessions’ memo was circulated.[21] Larry Leiser, President of the National Association of Assistant United States Attorneys, which also supports Sessions’ order, praised Sessions’ return to the tough sentencing practice “that served us so very well for so many years starting in 1981.”[22]

Even beyond their influence within the legislature, prosecutors have an outsize influence on district court outcomes. Dylan Hayre, a former prosecutor who now works as an attorney and political organizer on criminal justice reform, writes that “while the system is theoretically balanced, any honest prosecutor will tell you that, in reality, district court prosecution is a one-sided affair.”[23] Thus, even in cases where the legislature passes criminal justice reforms, prosecutors still hold most of the power in daily proceedings. They can steer police actions, influence sentences from the beginning of a criminal process through overcharging, drag out a defendant’s time spent in the system — and these are only a few small examples of their clout. In fact, there is evidence that district attorneys push back against reform laws. An Urban Institute Report[24] analyzed South Dakota’s criminal justice reforms and found that when certain low-level crimes were no longer eligible for lengthy sentences, prosecutions against crimes that were eligible for such sentences shot up.[25] Jon Pfaff notes that district attorneys “often have the ability to find ways to circumvent efforts at reform if they really want to.”[26] As a result, meaningful criminal justice reform must place heightened scrutiny on prosecutors, but, unsurprisingly, many district attorneys will likely resist legislators’ attempts to curb their authority.

How Can We Address the Problems Posed by Misuse of Prosecutorial Power?

I. Addressing Prosecutorial Discretion 

Legislative fixes that neglect to address the role of the prosecutor will not eradicate mass incarceration’s pervasive grip on the U.S. criminal justice system. U.S. policy makers must turn their collective gaze to the practices of prosecutors. In Locked In, Pfaff offers seven primary strategies to rein in prosecutorial discretion, including:

1. Provide adequate funding for public defenders and other indigent counsel;[27]

2. Expand the use of incentive grants that encourage prosecutors to focus on more serious offenses;[28]

3. Require that prosecutors provide more (of the right kind of) data;[29]

a. Pfaff has said that prosecutors should provide data on each case that the police deliver them, with information about the arrest charge, the initial charge filed in court (if different), and the final charge either tried or pled to, as well as any other charges threatened during plea bargaining. Additionally, he suggests we collect demographic and criminal history data on the defendant, as well as demographic data on the prosecutor and (ideally) the defense attorney.[30]

4. Establish guidelines for charging and plea bargaining, which New Jersey has already done;[31]

5. Target the moral-hazard problems of allowing county-elected prosecutors to send prisoners to state-funded prisons;[32]

6. Rezone many prosecutors’ offices, splitting the more urban counties into urban and suburban districts;[33]

7. Attack public complacency[34]: in 46 states, prosecutors are elected — and 85 percent of them run without opposition.[35]

a. Last year, with money from George Soros and energy from Black Lives Matter, district attorney candidates touting reform prevailed in several cities.[36]

b. Additionally, the ACLU has mapped out a three-year plan to increase public scrutiny of prosecutors as part of their Smart Justice campaign.[37]

II. Curbing Prosecutorial Misconduct

Judge Kozinski suggests a number of potential reforms that could work to counteract intentional misconduct on the part of prosecutors, including:

1. Require open file discovery;[38]

2. Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations;[39]

3. Adopt standardized, rigorous procedures for eyewitness identification;[40]

4. Video record all suspect interrogations;[41]

5. Impose strict limits on the use of jailhouse informants;[42]

6. Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process;[43]

7. Keep adding conviction integrity units (CIUs);[44]

a. CIUs accounted for 42 of the 139 total exonerations in 2017.[45]

b. While the number of CIUs is growing, they are still extremely rare: only 1.5 percent of the 2,300 prosecutor’s offices in the U.S. have a CIU.[46]

8. Establish independent Prosecutorial Integrity Units.[47]

III. Wielding Political Power to Benefit Communities

Prosecutors’ political power can and has been exploited. On the other hand, prosecutors also have the ability to wield their influence for good. In response to AG Sessions’ federal order to pursue the most severe penalties, a group of thirty current and former state and local prosecutors signed an open letter that said Sessions’ call “marks an unnecessary and unfortunate return to past ‘tough on crime’ practices” that will do more harm than good in their communities.[48] In 2017, Mark Gonzalez, the district attorney of Nueces County in Texas; Kim Ogg, the district attorney in Texas’s Harris County; and more than a dozen similarly reform-minded prosecutors were elected in Texas, Florida, Louisiana, and several other states. In Louisiana, George Soros responded to Caddo Parish’s abysmal record on the death penalty by spending $256,000 to help elect James Stewart, a Democrat and former judge, as district attorney.[49] Stewart’s election signaled what many hoped to be the elimination of many of the misguided practices of previous administrations, including Caddo prosecutors’ use of racially biased jury strikes. With more strategic investment in district attorney elections, the collective mentality of the nation’s district attorneys might slowly begin to arc toward reform.

Miriam Krinsky, a former prosecutor, directs the newly founded nonprofit Fair and Just Prosecution, which seeks to “provide guidance, assistance and networked support to recently elected prosecutors committed to change and innovation as they seek to implement criminal justice system policy and practice reforms in their offices.”[50] The policies of this “new breed” of prosecutors are reminiscent of the actions of many local prosecutors in New York in the 1990s, when, as Onondaga County District Attorney Bill Fitzpatrick notes, “We didn’t wait for the Legislature to reform the statutes; we did it on our own.”[51] Rather than focusing exclusively on nonviolent drug offenders, though, these newly elected prosecutors are advocating for rehabilitation, eschewing the death penalty, and often refusing to charge people for minor offenses. Increasingly electing these kinds of prosecutors will be critical in maintaining the local fight for reform and driving down the incarceration rate.

IV. Restorative Justice: Transforming Prosecutorial Discretion

One theory that has yet to receive the consideration it merits is the potential use of restorative justice in the pretrial plea conference setting. The case for the introduction of restorative justice into the plea process by prosecutors is made in this section by (1) providing an overview of what restorative justice is and how it could be used by prosecutors in plea bargaining; (2) responding to due process objections to the use of restorative justice in U.S. courts; and (3) demonstrating the benefits of the implementation of restorative justice.

1. How prosecutors might use restorative justice in plea bargaining

Restorative justice grants victims the opportunity to meet or communicate with their offenders to convey the impact and harm of the crime committed. It empowers victims, holds offenders accountable for the harm they committed, and offers a means for offenders to make amends through an action plan to which both parties agree.[52] As a result, restorative justice will only be applicable for prosecutorial use in cases involving an identifiable victim, an admission of guilt from the offender, and the informed consent of the victim, offender, and any other participants in the restorative justice process. In order for the restorative justice process to proceed, the trained restorative justice facilitator assigned to the case must conduct a risk assessment of the participants to determine their ability, consent, and suitability.[53] Before restorative justice can take place, however, the prosecutor must approve its use in the specific case. Due to the inherently individualized nature of restorative justice, its application must be approved on a case-by-case basis. The actor most commonly positioned to authorize its practice is the public prosecutor, as a review of restorative processes in several countries found.[54]

Prosecutors are uniquely positioned to implement restorative justice in the U.S. because they drive plea-bargaining, which, as explained earlier in this article, is utilized to resolve the vast majority of cases at both the state and federal level. A number of prosecutors have expressed optimism for its integration into the plea process. Former president of the National District Attorneys Association, Robert Johnson, said in an interview that while prosecutors may not be bound by the restorative action plan, they would undoubtedly take it into account when determining an appropriate plea proposal that “satisfies both punishment and restitution.”[55] Restorative justice can effectively fulfill both goals through the facilitation of a victim’s recovery and an offender’s rehabilitation.

Prosecutors are tasked with representing the interests of both the state and the victim. Due to the broad discretion prosecutors have to depart from the prescribed federal or state sentencing ranges, restorative justice allows prosecutors to maintain consistency in sentencing while also including victims’ input in a meaningful way. For instance, Jack Campbell, the Leon County assistant state attorney in Florida, used his discretion to incorporate restorative justice into the creation of a plea deal in a high-profile homicide case. He ultimately used the restorative conference action plan to inform his plea offer, which both adhered to Florida’s sentencing guidelines and broadly reflected the wishes of the murdered woman’s family. While he did not assent to a sentence as lenient as the victim’s family requested, he did depart from the state’s mandatory life sentence and offered the offender a 20-year sentence with 10 years of probation.[56]

Thus, even in the most egregious cases, restorative justice offers prosecutors the ability both to perform their duty to the state and to tailor a plea deal to the specific needs of the victim, the offender, and the affected community.

If adopted, restorative justice would likely assume the form of a pre-plea conference, which is a meeting between the prosecutor and the defendant’s lawyer at which a plea deal is agreed upon to bring to a judge. The pre-plea conference aligns well with the conditions of a restorative justice conference: anyone can attend, it is off the record, and nothing said can be used in court.[57] By instituting restorative justice in pre-plea conferences prior to sentencing, the prosecutor would grant agency to the victim. Drawing upon the restorative conference’s resultant action plan, the prosecutor would formulate the plea deal’s sentence, which the sentencing court would almost certainly approve. In cases appropriate for the use of restorative justice, the prosecutor would increase victim satisfaction with case outcomes and improve offender compliance and perceptions of procedural fairness.[58] At the same time, the prosecutor would promote values of reconciliation and reparation, while reducing the likelihood of future offending[59] and making the community safer in the process.

Prosecutors would likely structure the restorative pre-plea conference in the following manner: once the offender admits the offense, the victim would be asked to describe the impact of the offense on him or her. Those involved in the conference would then discuss what must be done in order to put things right. The offender would be expected to demonstrate patently his or her remorse, contributing to a plan that provides full restitution to the victim and potentially offering an apology to the victim.[60] The conference would also involve a discussion of why the defendant committed the offense, as well as what it would take — whether education, training, employment, drug or alcohol counseling, or some other measure — to rehabilitate the offender and ensure he or she does not engage in any further criminal conduct.[61] The conference would then negotiate the plan and amendments to the plan, including a recommendation to the judge pertaining to how the restorative justice efforts of the offender should factor into his or her sentencing by the court.[62] If the defendant completes the conference successfully, the prosecutor would likely be inclined to recommend either (1) reducing the defendant’s sentence within the applicable guideline range or (2) granting the defendant a downward departure (i.e. a departure from the applicable sentence, resulting in a lesser sentence than the sentencing guidelines stipulate) based on the perceived value of the restorative justice conference.[63]

2. Responding to due process objections

A number of due process concerns have been raised regarding the use of restorative justice in a criminal justice system that has already been refined through precedent such as Miranda[64] and Gideon[65] to protect the rights of defendants. Some of the issues cited have included the right against compelled self-incrimination,[66] the right against double jeopardy,[67] the right to counsel,[68] and the right to trial.[69] A response to all of the due process critiques that have been levied against restorative justice is outside the scope of this piece, but can be found in greater detail in Ikpa’s article, where she discusses balancing restorative justice and due process rights.[70] Rather, this section will address the rights of the offender implicated in the use of restorative justice in the pre-plea conference, making the case that restorative justice can be implemented while still constitutionally upholding the rights of the defendant.

By including the prosecutor and defense attorney in the restorative conference, the defendant would keep his or her right to counsel. The restorative practitioner would seek to minimize the attorneys’ roles in the process, but both attorneys would attend in order to ensure (1) that the defendant’s rights are maintained and (2) that the conference can inform the prosecutor’s sentencing recommendation.

Perhaps the greatest threat posed by the use of restorative justice in the pre-plea conference is the potential abridgment of the right against self-incrimination. Because restorative justice encourages offenders to take responsibility for the harm they have committed — and a restorative conference can only occur when a defendant has taken that responsibility — it is inevitable that the conference will entail an admission of guilt.[71] In the unlikely eventuality that a restorative conference is not completed successfully and a sentence cannot be agreed upon, the accused must retain his or her right against self-incrimination, as well as his or her right to trial, before the plea hearing.

However, this purported problem is easily resolved. As both a rule of evidence and as a condition of negotiations that defense attorneys always require, the pre-plea conference is strictly confidential and anything discussed is inadmissible in court. Sujatha Baliga, vice president and director of the Restorative Justice Project at the nonprofit Impact Justice, has further institutionalized a solution to the self-incrimination problem ostensibly posed by restorative justice. She has developed what she calls a “Reverse Miranda Rule,”[72] a document signed by the prosecutor involved in the case which essentially delineates that nothing said in a restorative conference can ever be used in a court of law. The use of such an agreement more broadly, which would bind both the prosecutor and defense attorney involved in the restorative conference, would safeguard the defendant’s rights. It would also enable the members of the conference to speak candidly and productively, eschewing the deceptive tactics of the traditional adversarial justice process. Baliga notes that “because the stakes are so high,”[73] the U.S. criminal justice system deters defendants from telling the truth. Restorative pre-plea conferences, protected against curtailing due process rights, provide an avenue for the much-needed truth-seeking element that our present system lacks.

3. The advantages of implementing restorative justice

Beyond due process objections, detractors of restorative justice also tend to question its efficacy and cost. This section demonstrates that restorative justice, if used judiciously in the pre-plea conference, has the potential to increase victim satisfaction, reduce recidivism, and decrease criminal justice system costs, all while preserving the safety of the general populace. For these reasons, prosecutors ought to employ their discretion in the plea-bargaining process to adopt the use of restorative justice in suitable cases.

Research has consistently shown that victims of crime who participate in restorative justice have greater levels of satisfaction with the justice process than those who participate in the traditional retributive justice process.[74] In fact, recent government research in the U.K. demonstrates that 85 percent of victims are satisfied in cases adjudicated via a restorative justice process.[75] The same research indicates that victims have a more positive view of the criminal justice system after undergoing a restorative process: when asked whether they felt the offender would commit the same crime again on someone else, only 35 percent of victims in the restorative process thought they would do so, in comparison with 55 percent of victims in the traditional criminal justice process.[76]

The literature on restorative justice bears out its efficacy. Studies from around the world have recorded restorative justice’s impact on reducing the rates of reoffending and recidivism. Researchers in New Zealand[77] and Australia[78] found that conferences that were perceived as being more restorative in nature were related to lower levels of reoffending in young offenders. Researchers in Indianapolis, Indiana, discovered the same phenomenon.[79] While there is a paucity of restorative justice diversion programs in the U.S., research has found those that do exist — in cities such as Baltimore and Minneapolis — have been effective at reducing recidivism.[80] In the U.K., restorative justice has reduced the frequency of reoffending by 14 percent.[81] Lastly, through a meta-analysis of 28 eligible studies involving 57 experimental comparisons and 19,301 youths, a study in 2012 concluded that restorative justice studies involving active researchers led to “statistically significant reductions in recidivism.”[82]

Restorative justice offers not only the possibility of reducing reoffending, but also the prospect of diminishing costs — a benefit that should prove appealing to prosecutors and criminal justice reformers from both sides of the political spectrum. In the U.K., the Restorative Justice Council used Ministry of Justice data to model the savings from offering restorative justice to all victims of burglary, robbery and violence (roughly 75,000 cases). Largely as a result of the concomitant reduction in reconviction rates, the Council found that restorative justice would provide cost savings to criminal justice agencies alone (excluding the additional savings to employers, insurers, and the National Health Service) in the order of £185 million over two years.[83] An independent expert analysis of the economic benefits of restorative justice, conducted by Matrix Evidence, found that diverting young offenders from community orders to a pre-court restorative justice conferencing system would result in savings of nearly £275 million, or £7,050 per offender.[84] Drawing upon years of experience as a restorative practitioner in the U.S., Baliga noted in an interview that the restorative justice process is always more economical than a trial and “certainly cheaper than sending a kid through the juvenile justice system.”[85]

While some critics claim the mainstreaming of restorative justice would be too resource-intensive, restorative justice providers have noted that most restorative justice cases can reasonably be completed within six to eight weeks.[86] As previously discussed, restorative justice is only an option when a case satisfies a certain set of elements.[87] As a result, restorative conferences would be used sensibly and would not “jam up the system.” Furthermore, over time, the number of cases would be expected to drop due to the consequent decline in reoffending. A report developed by Garry Shewan, the Assistant Chief Constable of Greater Manchester Police, bolsters these theories. It concluded that restorative justice can deliver savings in time and money across an extensive range of cases.[88]

Howard Zehr, widely known as the “grandfather of restorative justice,” writes:

Retributive theory believes that pain will vindicate, but in practice that is often counterproductive for both victim and offender. Restorative justice theory, on the other hand, argues that what truly vindicates is acknowledgment of victims’ harms and needs, combined with an active effort to encourage offenders to take responsibility, make right the wrongs, and address the causes of their behavior. By addressing this need for vindication in a positive way, restorative justice has the potential to affirm both victim and offender and to help them transform their lives.[89]

Zehr’s words are backed by empirical research from studies conducted in legal systems throughout the world. Restorative justice has the potential to transform lives and the U.S. criminal justice system. Prosecutors’ broad discretion grants them the ability to introduce restorative justice into the plea bargaining process, as some already have. The question, then, is — will more prosecutors follow those who have had the resolve and the vision to implement it?

Conclusion

In order to effectively curtail mass incarceration in the U.S., we must check prosecutorial misconduct and ensure that prosecutorial discretion is not abused. We must also grant serious consideration to unconventional approaches to dealing with crime, such as alternative dispute resolution processes and innovative diversion programs. Through a collective call for reform, we remind prosecutors of Attorney General Robert H. Jackson’s admonition. More than 75 years later, his words remain no less relevant: “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”[90]

References

[1] See Inimai M. Chettiar, “The Many Causes of America’s Decline in Crime,” The Atlantic (11 Feb. 2015), <https://www.theatlantic.com/politics/archive/2015/02/the-many-causes-of-americas-decline-in-crime/385364>.

[2] See David Cole, “The Truth about Our Prison Crisis,” The New York Review of Books (22 June 2017), <http://www.nybooks.com/articles/2017/06/22/truth-about-our-prison-crisis>.

[3] See John F. Pfaff, Locked In: The True Causes of Mass Incarceration – and How to Achieve Real Reform, New York: Basic (2017): 135.

[4] See id. at 127.

[5] See Judge John L. Kane, “Plea Bargaining and the Innocent,” The Marshall Project (26 Dec. 2014), <https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent#.g0RGq0uRM>.

[6] See David J. Krajicek, “Why Prosecutors Are the ‘Heart’ of Our Prison Population Boom,” The Crime Report (30 May 2017), <https://thecrimereport.org/2017/05/30/why-prosecutors-are-the-heart-of-our-prison-population-boom>.

[7] 295 U.S. 78 (1935).

[8] See “Government Misconduct,” Innocence Project, <https://www.innocenceproject.org/causes/government-misconduct>.

[9] See Bennett Gershman, “How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct,” The Daily Beast (31 Aug. 2015), <http://www.thedailybeast.com/how-to-hold-bad-prosecutors-accountable-the-case-for-a-commission-on-prosecutorial-conduct>.

[10] See Jordan Smith, “Will the Supreme Court Crack Down on Louisiana’s Rogue Prosecutors?,” The Intercept (15 June 2016), <https://theintercept.com/2016/06/15/will-the-supreme-court-crack-down-on-louisianas-rogue-prosecutors>.

[11] See Exonerations in 2017, The National Registry of Exonerations, 2 (14 Mar. 2018), available at <https://www.law.umich.edu/special/exoneration/documents/exonerationsin2017.pdf>.

[12] See Radley Balko, “In Louisiana Prosecutor Offices, a Toxic Culture of Death and Invincibility,” The Washington Post (6 Apr. 2015), <https://www.washingtonpost.com/news/the-watch/wp/2015/04/06/in-louisiana-prosecutor-offices-a-toxic-culture-of-death-and-invincibility/?utm_term=.a74290a2040a>.

[13] See Kathleen M. Ridolfi, Maurice Possley & Northern California Innocence Project, Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009, Northern California Innocence Project Publications, 2-3 (2010).

[14] See Gershman (31 Aug. 2015).

[15] See Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo L.J. Rev. Crim. Proc., xxii (2015).

[16] See id. at xxiii.

[17] In the 1976 case Imbler v. Pachtman, the court ruled that under federal civil rights law, prosecutors possess absolute immunity from any lawsuit concerning any action undertaken as a prosecutor. Under Connick v. Thompson, the court later extended this personal immunity to cover supervisory prosecutors who fail to properly train their subordinates.

[18] See Radley Balko, “The Untouchables: America’s Misbehaving Prosecutors, and the System that Protects Them,” The Huffington Post (1 Aug. 2013), <https://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html>.

[19] See Christopher Goffard, “Prosecutors Who Withhold or Tamper with Evidence Now Face Felony Charges,” Los Angeles Times (3 Oct. 2016), <http://www.latimes.com/local/lanow/la-me-prosecutor-misconduct-20161003-snap-story.html>.

[20] See Jeff Sessions, Department Charging and Sentencing Policy, Memorandum for All Federal Prosecutors (10 May 2017), available at < https://www.justice.gov/opa/press-release/file/965896/download >.

[21] See National District Attorneys Association Statement on Charging and Sentencing Memo to Federal Prosecutors (15 May 2017), available at <http://www.ndaa.org/pdf/NDAA%20Press%20Release%20on%20Sessions%20Charging%20and%20Sentencing%20Memo.pdf>.

[22] See Lindsey Bever, “Prosecutors Are Pushing Back against Sessions Order to Pursue Most Severe Penalties,” The Washington Post (19 May 2017), <https://www.washingtonpost.com/news/post-nation/wp/2017/05/19/prosecutors-are-pushing-back-against-sessions-order-to-pursue-most-severe-penalties/?tid=ss_tw-bottom&utm_term=.b445464150e8>.

[23] See Dylan Hayre, “How To Reform Criminal Justice, When Prosecutors Hold The Power,” WBUR: Boston’s NPR News Station (19 July 2017), <http://www.wbur.org/cognoscenti/2017/07/19/prosecutors-reform-criminal-justice-dylan-hayre>.

[24] See generally Brian Elderbroom, Samuel Bieler, Bryce Peterson & Samantha Harvell, Assessing the Impact of South Dakota’s Sentencing Reforms: Justice Reinvestment Initiative, Urban Institute (5 May 2016).

[25] See Juleyka Lantigua-Williams, “Are Prosecutors the Key to Justice Reform?,” The Atlantic (18 May 2016), <https://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-the-key-to-justice-reform/483252/>.

[26] See id.

[27] See Pfaff at 207.

[28] See id. at 208.

[29] See id. at 210.

[30] See id.

[31] See id.

[32] See Pfaff at 213.

[33] See id. at 215.

[34] See id. at 216.

[35] See Eli Hager and Bill Keller, “Everything You Think You Know About Mass Incarceration Is Wrong,” The Marshall Project (9 Feb. 2017), <https://www.themarshallproject.org/2017/02/09/everything-you-think-you-know-about-mass-incarceration-is-wrong#.j0qXEiV5u>.

[36] See Maurice Chammah, “New Strategy for Justice Reform: Vote Out the DA,” The Marshall Project (18 Oct. 2016), <https://www.themarshallproject.org/2016/10/18/new-strategy-for-justice-reform-vote-out-the-da#.68l598gG0>.

[37] See, e.g., Taylor Pendergrass, “Why Jeff Sessions Is the Best Argument for Reducing Prosecutorial Power,” American Civil Liberties Union (26 May 2017), <https://www.aclu.org/blog/speak-freely/why-jeff-sessions-best-argument-reducing-prosecutorial-power>.

[38] See Kozinski at xxvi.

[39] See id. at xxvii.

[40] See id. at xxviii.

[41] See id. at xxix.

[42] See id. at xxx.

[43] See id.

[44] See id. at xxxi.

[45] See Exonerations in 2017, supra at 2.

[46] See Josie Duffy Rice, “Do Conviction Integrity Units Work?,” The Appeal (22 Mar. 2018), <https://theappeal.org/do-conviction-integrity-units-work-a718bbc75bc7/>.

[47] See id. at xxxii.

[48] See Lindsey Bever, “Prosecutors Are Pushing Back against Sessions Order to Pursue Most Severe Penalties,” The Washington Post (19 May 2017), <https://www.washingtonpost.com/news/post-nation/wp/2017/05/19/prosecutors-are-pushing-back-against-sessions-order-to-pursue-most-severe-penalties/?utm_term=.e2325419c8e0>.

[49] See Kevin Litten, “George Soros Is Spending $256k on a Louisiana Political Race,” The Times-Picayune (13 Oct. 2015), <http://www.nola.com/politics/index.ssf/2015/10/george_soros_louisiana_pac.html>.

[50] See generally Fair and Just Prosecution, Open Philanthropy Project (March 2017), <http://www.openphilanthropy.org/focus/us-policy/criminal-justice-reform/fair-and-just-prosecution-general-support>.

[51] See Henry Gass, “Meet a New Breed of Prosecutor,” The Christian Science Monitor (17 July 2017), <https://www.csmonitor.com/USA/Justice/2017/0717/Meet-a-new-breed-of-prosecutor>.

[52] See Jon Collins, Restorative Justice: Briefing for defence practitioners and prosecutors, Restorative Justice Council, 4 (March 2016), available at <https://restorativejustice.org.uk/sites/default/files/resources/files/briefing%20for%20lawyers_web2.pdf>.

[53] See id. at 7.

[54] See id. at 11.

[55] See Laura Sullivan, “Victims Confront Offenders, Face to Face,” National Public Radio (28 July 2011), <http://www.npr.org/2011/07/28/138791912/victims-confront-offenders-face-to-face>.

[56] See Paul Tullis, “Can Forgiveness Play a Role in Criminal Justice?,” The New York Times Magazine (4 Jan. 2013), < https://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-in-criminal-justice.html>.

[57] See id.

[58] See Jeff Bouffard, Maisha Cooper, and Kathleen Bergseth, The Effectiveness of Various Restorative Justice Interventions on Recidivism Outcomes Among Juvenile Offenders, Youth Violence and Juvenile Justice 15(4), 466 (2017).

[59] See generally Lawrence W. Sherman, Heather Strang, Geoffrey Barnes, Daniel J. Woods, Sarah Bennett, Nova Inkpen, Dorothy Newbury-Birch, Meredith Rossner, Caroline Angel, Malcolm Mearns, and Molly Slothower, Twelve experiments in restorative justice: the Jerry Lee program of randomized trials of restorative justice conferences, Journal of Experimental Criminology 11(4), 501 (2015).

See also Jeff Latimer, Craig Dowden, and Danielle Muise, The Effectiveness of Restorative Justice Practices: A Meta-Analysis, The Prison Journal 85(2), 127 (2005).

[60] See Donald J. Schmid, Restorative Justice in New Zealand: A Model for U.S. Criminal Justice, Fulbright New Zealand, 56 (2001), available at <http://www.fulbright.org.nz/wp-content/uploads/2011/12/axford2001_schmid.pdf>.

[61] See id.

[62] See id.

[63] See id at 57.

[64] Miranda v. Arizona, 384 U.S. 436 (1966).

[65] Gideon v. Wainwright, 372 U.S. 335 (1963).

[66] U.S. Const. amend. V. The Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

[67] See id.

[68] U.S. Const. amend. VI. The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

[69] See id.

[70] See generally Tina S. Ikpa, Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System, 24 Wash. U. J. L. & Pol’y, 301 (2007).

[71] See Collins at 11.

[72] See “Sujatha Baliga: Forgiveness of Unforgivable Acts,” Awakin (8 Nov. 2014), <http://www.awakin.org/calls/173/sujatha-baliga/transcript>.

[73] See id.

[74] See generally Heather Strang, Lawrence W. Sherman, Evan Mayo-Wilson, Daniel Woods, and Barak Ariel, Restorative Justice Conferencing (RJC) using face-to-face meetings of offenders and victims: effects on offender recidivism and victim satisfaction. A systematic review, Campbell Systematic Reviews, 12 (2013).

[75] See Collins at 4.

[76] See id at 6.

[77] See generally Allison Morris & Gabrielle Maxwell (Eds.), Restorative Justice for Juveniles: Conferencing, Mediation and Circles, Portland, OR: Hart (2001).

[78] See Hennessey Hayes and Kathleen Daly, Youth justice conferencing and reoffending, Justice Quarterly 20, 756-757 (2003).

[79] See Natalie Kroovand Hipple, Jeff Gruenewald, and Edmund F. McGarrell, Restorativeness, Procedural Justice, and Defiance as Predictors of Reoffending of Participants in Family Group Conferences, Crime & Delinquency 60(8), 1151 (2014).

[80] See generally Lawrence W. Sherman and Heather Strang, Restorative justice: The evidence, The Smith Institute (2007).

[81] See Collins at 4.

[82] See Craig S. Schwalbe, Robin E. Gearing, Michael J. MacKenzie, Kathryne B. Brewer, and Rawan Ibrahim, A meta-analysis of experimental studies of diversion programs for juvenile offenders, Clinical Psychology Review 32, 26 (2012).

[83] See Polly Rossetti, Ellie Cumbo, Amy Forbes and Laurie Bell, Victims’ justice?: What victims and witnesses really want from sentencing, Victim Support, 29 (Nov. 2010), available at <https://restorativejustice.org.uk/sites/default/files/resources/files/Victims%27%20Justice.pdf>.

[84] See Economic Analysis of Interventions for Young Adult Offenders, Barrow Cadbury Trust, 3 (Nov. 2009), available at <https://www.barrowcadbury.org.uk/wp-content/uploads/2011/01/Matrix_Economic_analysis-T2A-2009.pdf>.

[85] See Sullivan (28 July 2011).

[86] See Collins at 8.

[87] I.e., the offender must accept responsibility, the victim must willingly participate, and the restorative practitioner must approve of the conference after conducting a risk assessment.

[88] See generally Garry Shewan, A Business Case for Restorative Justice and Policing, The Case for Restorative Justice (2010).

[89] See Howard Zehr, The Little Book of Restorative Justice, Intercourse, PA: Good Books (2002): 59.

[90] See Robert H. Jackson, The Federal Prosecutor, 31 Am. Inst. Crim. L. Criminology, 6 (1940).