Prosecutors hold most of the power in the American criminal justice system. After making the initial decision to charge a suspect, prosecutors have a wide menu of offenses to choose from. A large number of potential charges and huge authorized sentences then give prosecutors the leverage to pressure defendants to plead guilty. The criminal justice system runs on plea bargaining, and prosecutors have the stronger hand in plea negotiations. A defendant’s eventual sentence is therefore likely to be closer to the prosecutor’s starting point than the defense attorney’s proposal. No serious observer disputes that prosecutors drive sentencing and hold most of the power in the United States criminal justice system.
Another obvious truth about the American criminal justice system is mass incarceration. Incarceration in America has quintupled since the 1970s. At present, the United States incarcerates more people than any other nation in the history of the world—in excess of two million. Numerous official policies have undoubtedly contributed to the incarceration explosion. Some blame likely lies in harsh drug sentences. Three-strikes laws have seemingly also had an impact. And the widespread abolition of parole at the federal and state level has contributed to the overcrowding of prisons as well.
This Essay does not focus on the official policies and statutory enactments that have contributed to mass incarceration, however. Rather, this Essay attempts to look behind the curtain at the underlying problem that fails to constrain prosecutors’ behavior—the so-called correctional free lunch. Put briefly, prosecutors do not have to internalize the costs of their sentencing decisions because they do not have to run and pay for the prisons and jails. That responsibility falls to the wardens who run the prisons and the sheriffs who run the jails. In short, prosecutors effectively hold the power to sentence inmates, but not the responsibility to pay for the consequences. As such, the criminal justice system does not create an incentive for prosecutors to offer lenient plea bargains.
Consider a defendant charged with theft. Under our current “system,” the prosecutor has no responsibility for dealing with the defendant after he leaves the courtroom. So the prosecutor can decide to be tough and demand that the defendant serve a six-month sentence. After all, the sheriff runs the jail, so the sheriff will have to find a cell for the inmate and the money to fund his incarceration for six months.
But what if the prosecutor had to deal with the inmate after the conviction was entered? What if the prosecutor had to worry about overcrowded jails and correctional budget shortfalls? The prosecutor might then think twice about the six-month sentence. Perhaps she would be willing to plea bargain down to a four-month sentence to slightly reduce the jail population and the accompanying expenses.
This Essay explores how to force prosecutors to have “skin in the game” after convictions are entered. The problem I tackle is limited to local jails. And the answer I offer is that local prosecutors should bear responsibility for their local jails. Prosecutors should be responsible for checking inmates in and out of the local jails, and they should be in charge of the overall jail budgets. Consolidating criminal justice to put prosecutors in charge of jails should have at least three benefits.
