Journalist Emily Bazelon says most prosecutors, not judges, are the most powerful people in a courtroom.
“We’re used to thinking about the justice system as a triangle, where you have the prosecutor and the defense lawyer down here, and they’ve on an equal playing field. And then, it’s the judge who’s up here at the top of the triangle,” she said. “But in fact, since the 1980s, we’ve really seen the balance of power shift in the American courtroom.”
Bazelon said, these days, prosecutors have the power in court situation instead of the judge. She spent years reporting from the Brooklyn District Attorney’s Office and compiled her findings in her book “Charged.”
She explained that in the 1980s in the United states there was a crime wave. People were worried about crime, and wanted to increase punishments. So they created measures like Mandatory Minimum Sentencing that requires judges to sentence offenders to a minimum prison term for specific crimes.
“The person who gets to decide what the charges are in a criminal case—that person is the prosecutor,” she said. “Once you have charges in place, then prosecutors almost always in our court system try to negotiate a plea bargain.”
In plea bargain, the defendant pleads guilty in exchange for a more lenient sentence of an agreement to drop other charges, which is primarily done to avoid a trial. These days, more than 95% of conviction in the U.S. are obtained by plea bargains.
“And again, the person who has the most say and power over a plea bargain—that person is the prosecutor,” Bazelon said.
Experts says plea deals have fueled mass incarceration by incentivizing defendants to plead guilty, even if they didn’t do the crime. Movements around the country are encouraging and lobbying toward the election of new district attorneys around the country, with the hope that they will change the system that currently favors more plea deals and incarceration.