Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have prosecutors occasionally serve as defense counsel for indigent defendants so prosecutors realize the great power they possess. Unfortunately, I recognize that such change is unlikely to happen in the near future, leaving prosecutors in power in the criminal justice system.
Jed S. Rakoff,
Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It,
Nw. U. L. Rev.