Prosecutors have used their power to pack jails and prisons. And it has taken decades, billions of dollars, and thousands of laws to turn the United States into the largest incarcerator in the world. But did you know that prosecutors also have the power to dismantle this machine — even without changing a single law?
Rarely Challenged in Elections
In Pennsylvania, turnout for elections to elect DAs can be as low as 9 percent. The 20 percent turnout for the 2017 municipal elections in Philadelphia was the highest turnout for a municipal election in decades. Nationwide, 84 percent of DAs run unopposed. DA elections in Pennsylvania are held during off-years from other state and federal elections, driving down turnout.
Power of Charging
DAs can overcharge in order to get plea deals; they can decide if a defendant is offered diversion or not; they can set priorities on what kinds of charges they want to bring; and they can decide whether or not to prosecute certain crimes at all, like declining to prosecute low-level offenses. District attorneys have the power to choose which charges are filed against an individual accused of a crime. When the police arrest someone, the district attorney’s office has the power to prosecute those cases, divert the accused to a program or drug treatment, or dismiss the case altogether.
Power to Determine Bail and Pretrial Detention
Whether as a result of the DA allowing police to make bail recommendations or making direct requests to assign cash bail, too many people are assigned cash bail in Pennsylvania and too many DAs rely on cash bail as a way to keep people in custody until their trial date. Pretrial detention causes major disruptions for the detained individual and their families and increases the likelihood that the individual held will commit a future crime. There are plenty of alternatives to cash bail to ensure appearance at trial. Text message and phone reminders, as well as unsecured monetary bail (in which an individual signs a legal contract promising to pay a cash bond if they fail to appear at court) have all been shown to be more effective tools to make sure people show up to court than is cash bail.
Power to Negotiate Plea Deals
When a defendant accepts the terms of the sentence proposed by the DA, they enter a guilty plea which the judge will typically accept. The DA has immense power in influencing an individual’s decision to enter into a plea deal or to take their case to trial. More than 90 percent of all criminal cases end in a plea deal. The district attorney has the power to offer a sentence to the individual charged with a crime.
Power to Influence Sentencing
During the sentencing phase of a trial, the judge’s decision-making is heavily influenced by the recommendations of the DA. Judges will typically rubber stamp whatever sentence DAs recommend. Sentencing will determine the length of an individual’s period of incarceration. District attorneys have the prosecutorial discretion to not pursue mandatory minimum sentencing.
Power to Present Evidence
The difference between a guilty and not guilty verdict comes down to the evidence presented by the district attorney. A number of Supreme Court decisions have reaffirmed the district attorney’s obligation to turn over exculpatory evidence to the defense during discovery. Frequent violations of these laws, as well as a regular lack of transparency in DA officers, reinforce the need for their existence.
Power to Influence Policy
District attorneys have significant political sway when legislators consider sentencing legislation such as mandatory minimums, mandatory life without parole, or the use of risk assessment instruments. The Pennsylvania District Attorneys Association (PDAA) operates as both a member association and as an organizational lobbyist that takes positions on a variety of policy matters relating to criminal justice. As such, district attorneys in Pennsylvania wield enormous influence over state legislators on both sides of the aisle, affecting policy debates and legislative outcomes regarding the criminal justice system.