In an Age of Mass Incarceration, Should Good People Be Prosecutors?
That was the question posed in an October 2009 debate hosted by the NYU Law Forum (full video above) (OK, so I added the “in an age of mass incarceration” part, but I think it’s implied). Paul Butler, a self-described “recovering” federal prosecutor and the author of Let’s Get Free: A Hip Hop Theory of Justice (New Press, 2009), says “No”:
[As a black prosecutor, Butler said he] felt his presence was meant to be evidence that the U.S. justice department was diverse, and that the law was being applied fairly, justly—to ensure the American people that “everything’s cool.”
“But, ladies and gentlemen, everything is so not cool,” Butler said. “The United States locks up more people than any country in the history of the world. …When crime goes up, the prison population goes up. When crime goes down, the prison population goes up. When crime rates stay the same, the prison population goes up.” According to Butler, this is a result of excessively harsh sentencing laws and the “dysfunctional politics of law in the United States.”
Butler contended that with racial profiling by police and mandatory sentences for many drug crimes, prosecutors have little power to fight these problems from the inside. To answer the question at the center of the debate, the efforts of good people would be wasted as prosecutors, in Butler’s view. [NYU professor Anthony] Barkow, however, said that attorneys, even when they are not the lead prosecutor, can and do make discretionary decisions that allow them to work within the law to have influential voices in cases. “Supervisors will often defer, extensively in my experience, to the line prosecutors,” Barkow said. “So the line prosecutors making all these discretionary decisions are really kind of driving the bus most of the time.”
Incidentally, I noticed that the NYU Law Forum is also planning a debate this coming March on the topic, “Does the United States incarcerate too many people?” Though readers can probably guess what my answer would be to that question, I’m sure the debate will make for an interesting discussion and I’ll look forward to the recap and video on the NYU website.