Not long after his 2017 election as Brooklyn’s district attorney, Eric Gonzalez gave a speech in which he declared that “The real cultural shift I’m going to be asking prosecutors in my office to make is considering jail as the last option.” In most American cities that would be an extraordinary statement coming from a prosecutor. In this case, however, it followed a campaign during which one commentator tweeted that it was “stunning to see Brooklyn DA candidates competing to go softer on crime.”
According to Emily Bazelon, the country is in dire need of prosecutors who think like Gonzalez. In her rigorous, compassionate, and vital book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, she shines light on a critical but under-examined feature of the criminal justice system: the role of prosecutors in America’s crisis-level incarceration rates. People like Gonzalez, she contends, who are thinking differently about fairness and mercy, represent “the most promising means of reform … on the political landscape.”
A staff writer for the New York Times Magazine who’s also a lawyer, Bazelon argues that the explosion in America’s prison population (currently around 2.2 million people, a number the author believes could be safely cut in half) has largely resulted from the imbalance in our justice system, which gives the upper hand to the prosecution. Most district attorneys in this country are elected and commonly strive to present themselves to constituents as tough on crime; Bazelon laments that DAs often appear more concerned with notching wins than with serving justice.
Bazelon methodically demonstrates that prosecutors, at every step of the process, have outsize power, whether it’s in deciding how a defendant will be charged, in influencing how bail is set, even in choosing to punish black defendants more severely than white ones.
The author is particularly strong in arguing for the elimination of cash bail, which, in effect, punishes defendants for being poor. Those in jail who can’t afford bail often feel pressured into accepting a plea deal rather than languishing in pretrial detention, especially when prosecutors threaten them with stiff sentences if they risk a trial and lose. (It’s disturbing, but not terribly surprising, that “about 18 percent of exonerations – DNA and non-DNA, death sentences and other penalties – involve defendants who pleaded guilty.”) The overwhelming majority of criminal convictions result not from trials but from guilty pleas – the rate is as high as 95% in many states.
Bazelon gives these processes a human face by following two young people through the system and alternating their stories throughout the book. One is 20-year-old Kevin (not his real name), a Brooklynite from the housing projects of Brownsville who’s arrested on a gun charge. The other is Noura Jackson, a Tennessee teenager convicted of the brutal 2005 murder of her mother; she spent nearly a decade in prison before the state’s supreme court, citing prosecutorial misconduct, overturned her conviction.
In tracking the two cases, Bazelon deftly shows how different approaches to prosecution can produce vastly different outcomes. Jackson was the victim of an overzealous prosecutor determined to win a conviction despite glaring weaknesses in the case. In Brooklyn, on the other hand, Kevin, after pleading guilty to criminal possession of a weapon, was allowed to enter a year-long diversion program that offered him the opportunity to stay out of prison and have his conviction erased from his record if he followed a strict set of rules (random drug testing, nightly curfew, visits with a social worker).
The two cases highlight the difference between prosecutors who use their power primarily to lock people up and those who believe that the public interest is better served by offering, where appropriate, social services and second chances. Bazelon urges us to consider, too, what we want our criminal justice system to accomplish. Supreme Court Justice Sonia Sotomayor, who spent five years as a prosecutor in the Manhattan DA’s office, looked back on the experience and said, “We think we’re keeping people safe from criminals. We’re just making worse criminals.”
Mass incarceration is such an intractable American problem, but one gets the feeling that “Charged” could be a game-changer, giving voice and momentum to a growing desire for reform. (The lengthy appendix, which lays out concrete steps to fix the broken system, will surely help.) There are 2,400 prosecutors in elected office across the country. While reform-minded DAs are still in the minority, they’ve won races in cities and counties nationwide, including Philadelphia, Houston, and Kansas City, Kansas. “Local prosecutors handle more than 95 percent of the nation’s criminal docket,” Bazelon observes, meaning that change, if it is to come, will come from the grassroots. To ensure that meaningful criminal justice reform is enacted, as this important and powerful book urges, citizens must begin by paying attention.