Prison Law Blog

Sara Mayeux

In an Age of Mass Incarceration, Should Good People Be Prosecutors?

with 3 comments

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.

Written by sara

February 15, 2010 at 8:28 am

3 Responses

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  1. my husband was charged for growing pot. He never been in any trouble before, and took them almost 2 years to sentence him to a minimum mandatory of 3 years. after he got into this mess, his business picket up, and he became a successful surfboards maker,he made many clients and friends. His friends knows him for a human being with such a big heart. And then was all over. he had to go do the minimum mandatory. I had to shut down the business, his disable mother doesn’t have all the help that he use to provide her, and me…they stop my life too, i miss my husband too much to concentrate in having a normal life as a foreign student of biotechnology in Florida. Also now i suffer from depression and insomnia. He did not deserve it. he is not doing any good to society behind bars.I just pray to God that one day something happen and he will come home sooner…

    Eliete Davis

    February 15, 2010 at 5:54 pm

    • Eliete: Thanks for reading, and especially for sharing your story. I am sorry to hear about your husband.


      February 15, 2010 at 10:10 pm

  2. Thanks for posting the video. I wish he had said more about juveniles and recidivism. According to a DOJ 2004 study of prisoners convicted of a drug offense 62% of the federal prisoners and 78% of the state prisoners were recidivists. There are so many differences between state juvenile justice systems it is very difficult to study juvenile recidivism. There is a 2006 DOJ report on juvenile justice systems that does contain a lot of information but very little on recidivism.

    The anecdotal evidence suggests a low juvenile recidivism rate for simple possession of drugs but juvenile recidivists involved in more serious offenses are very likely to abuse both alcohol and drugs.

    There is a federal criminal justice system and 50 state systems and there are territorial and tribal systems as well. Most of them have juvenile and adult divisions and they can also be female and male subdivisions. I think it is a big mistake to lump all of these systems together. Because crime is primarily local there can be large variations within a single state criminal justice system.

    The retail drug sales are local, the wholesale system is often regional and the manufacturing and distribution international. It is a mystery to me why the federal government is involved in prosecution of the retail sales staff. The 6th amendment says they should be tried in district wherein the crime shall have been committed. My view FWIW is if there are two possible districts the smallest district should have jurisdiction.

    John Neff

    February 16, 2010 at 7:22 am

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