Monday, May 17, 2021
Justin Murray (New York Law School) has posted Book Review, Emily Bazelon, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (Journal of Legal Education, forthcoming) on SSRN. Here is the abstract:
The role of the prosecutor is currently undergoing a major shift in a steadily increasing number of counties across the United States. Until the past five years or so, prosecutors were generally expected to go after those who commit crime with relentless zeal, sparing little concern for the scale and harshness of our carceral system. But this has recently begun to change. Several dozen district attorneys (“DAs”) who plausibly describe themselves as reformers or, in many instances, as “progressive prosecutors” have now won elections by promising to shrink the vast footprint of America’s criminal justice system. That figure by itself might fail to impress considering that there are over 2300 elected DAs in the United States. The new crop of reform-oriented prosecutors punch above their weight, however, since many of them hold power in high-density urban centers like Brooklyn, Chicago, Philadelphia, and Boston. All told, “about 40 million Americans, more than 12 percent of the population, live[s] in a city or county with a D.A. who . . . could be considered a reformer.”
What should we make of these reformist prosecutors, and how do they fit within the larger movement to transform American criminal justice? Emily Bazelon wrestles with these questions in her new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Bazelon has reported on prosecutors and other criminal justice topics for years at The New York Times Magazine and, previously, Slate; she is also a lecturer in law and the Truman Capote Fellow at Yale Law School. Through an engaging mix of investigative journalism centered on two specific prosecutions and incisive analysis of broader national trends, Bazelon makes the case that American prosecutors have misused their immense power to punish far too many people much too harshly and, further, that prosecutors must now exercise that same power differently to help reverse mass incarceration. Even more ambitiously, Bazelon argues that electing prosecutors who are serious about decarceration represents “the most promising means of reform . . . on the political landscape.”
Charged is an important, insightful book. To be clear, I am not entirely convinced by the strongest version of Bazelon’s thesis: namely, that prosecutorial power is the main culprit behind mass incarceration as well as our best hope for escaping from it. It seems to me that other stakeholders besides prosecutors—legislatures, courts, police, defendants and their lawyers, community leaders, and more—also have key roles to play, both as a general matter and in the two prosecutions that Bazelon puts under the microscope. But the abundant discretionary power wielded by prosecutors unquestionably matters a great deal. Charged invites much-needed reflection on how prosecutors should exercise that power through its trenchant critique of conventional prosecutors and its rich exploration of their reformist brethren.