The United States has one of the highest incarceration rates in the world in part due to the role our prosecutors adopt in the justice system. Prosecutors have a difficult job, but the majority are dedicated to justice and are conscious of their power in the courtroom. However, these same prosecutors also use a bevy of tactics to avoid trial and cajole defendants into accepting plea deals. Such tactics are rarely malicious, but are attempts to focus time and effort on bigger cases and to reduce the strain on the prosecutor’s schedule. Regardless of the intent behind such factors, it is valuable to acknowledge their use and their effects on individual cases. 

The Burden on the Defendants 

According to Cornell Law, the burden of proof is the standard that the party suing has the responsibility of proving that the defendant is guilty. Although it varies in different circumstances, such as between civil and criminal cases, the burden often ends up being on the defendant in practice, if not in form. 

It is almost impossible for a defendant to prove their innocence. For instance, in Jeremy Rosenthal’s example of this factor, he tells us to imagine ourselves accused of petty theft with no witnesses or recordings. The court would have no proof, and therefore, it would ultimately be your word against theirs. In these cases, that happens often when prosecutors employ a tactic of re-framing a story to paint the defendant as a liar. In a common DWI case, we see a person looking sober and well in the video brought into evidence. In the small number of cases where the BAC data is errored or non-existent, this tactic is most frustrating. To pursue the win in the courtroom, Rosenthal says prosecutors may argue this person has a high tolerance to alcohol abuse. This could be true, but it may also be false, and this defendant solely made a mistake with no alcohol involved. It ultimately leads to this truth: if they look under the influence of alcohol or drugs, they are, and if they look sober — they are under the influence too. The following tactics are misleading and compel the defendant to prove innocence without the resources prosecutors possess. This tactic skews any evidence that is not directly to the statement that “their tolerance is too high.” It is the skills of shifting attention and direction of cases that go through trial. 

Spinning Lack of Evidence 

This tactic creates a frustrating situation for anyone sitting on the other side of the prosecutor. Criminal defense lawyer Jeremy Rosenthal describes a situation in which the accuser is mugged in an alley with no other witnesses. The prosecutor exploits the lack of corroborating evidence as a weakness in the case. He argues that because the accused was not seen and no evidence was left behind he must be a good criminal. With the lack of proof, the plaintiff party has a tough time bringing the burden of proof to the judge or jury. This tactic of turning innocence from no proof into evidence of guilt is one of the causes of many wrongful convictions. 

According to the Texas Rules of Criminal Procedure Rule 2.03 Sec. (b), it is a neglect of duty to impair the presumption of innocence. It is a constitutional right to have sufficient evidence brought against you to convict on a charge. This tactic interferes with the proceedings in civil and criminal trials but is still often used today. Some of the 9,750 wrongly convicted Americans every year are evidence of this subtle injustice. New York is one of 10 states that allow prosecutors to wait until the night of the trial to release witness names and other crucial evidence to the defense’s decision. This is a practice that forces many defendants to decide whether to plead guilty without knowing the strength of the case against them. This strategic tactic is unnecessary and unfair.

The ‘Ego Chamber’ Mindset

Prosecutors are taught to prosecute, which has some underlying dangers for the criminal justice system. Prosecutors have learned to gloss over or outright ignore defendants’ rights, the burden of proof, and presumption of innocence in their pursuit of winning a case. The cursory back-and-forth in the courtroom is performed to show the “even-handedness” of the trial. When in reality, the defendants’ 14th Amendment is ignored by the prosecutors and, unintentionally, by the jurors. The ‘ego chamber’ refers to the attitude of embracing the legal duty of prevailing justice that prosecutors get cubicled in. Former prosecutor, Paul Butler, describes the ego chamber mentality, admitting:

“Like a lot of prosecutors, I possess a zeal that can border on the bloodthirsty… I put a lot of people in prison, and I had a great time doing it … (N)ow I describe myself as a recovering prosecutor-‘recovering’ because one never quite gets over it. I still like to point my finger at the bad guy. “

The human tendency of competitiveness is also at fault, leading to the race in the number of convictions instead of the pursuit of justice. The American Prosecutors Research Institute reminds us that becoming-prosecutors will go straight into prosecuting and will never do any other work as an attorney. They rarely see the emotion, family, and adversity behind every case. For example, prosecutors will first hear the details of the dispute from police reports that do not convey the entirety of the case. This dynamic gives truth to the “ego chamber.” It merely tricks prosecutors into automatically assuming that everyone is guilty because they believe that the police would never arrest an innocent person. This mindset leaves our justice system hollow.

Bail and Plea-Bargaining 

The incarceration rate is inversely correlated to the U.S wealth base. The practice of posting bail allows those with money to walk free before trial, while those who can’t, stay locked up. It is a misconception that jail is where criminals are. Instead, jails often hold significant numbers of people who cannot afford to post bail. Prosecutors handle the process of posting bail, a decision that takes only seconds. With a money-sensitive justice system, a large portion of the 2.3 million people incarcerated is sitting in a jail cell convicted of a crime when they are innocent. 

The pre-trial stay in jail can ruin a defendant’s chances of finding work or housing, taking care of their children, and succeeding in school. The time in jail before for trial increases the chances of the defendant pleading guilty due to prosecutors’ pressures. The saying, “If you can’t afford the fee, take the plea,” is the harsh reality of the justice system. About 9 out of 10 cases are resolved with a plea bargain today. The plea bargain was created to negotiate in the interest of the defendant. Now, we have seen it has negatively affected poor and minority defendants. These defendants accept their plea bargain, despite their innocence, in fear of facing a harsher penalty. 

This is especially true when they cannot afford independent lawyers. Prosecutors are not obligated to defend their charging or plea-bargaining decisions to anyone other than immediate supervisors. Thus, there is no system of checks and balances on prosecutors like we have in our legislative branch. This is why the focus on prosecutors is important to voters. We have to assure that these important decisions are made judiciously and without race or class bias.

The emotional power prosecutors have due to the fear of being locked up, homesickness, and the overall anxiety of missing out on life that defendants experience pushes defendants to plead guilty even when that is not the case. Plea-bargains are quick and easy; however, they affect the defendants’ lives forever. Plea-bargaining and charging are made in the privacy of prosecutors’ offices. This is what makes it tricky to discover arbitrary or racially biased decisions.

How to Help

Of course, not all prosecutors are egotistic or uninspired. Over the years, I have been privileged to work with some innovative prosecutors who are natural, fair-minded, and sympathetic, as well as great trial lawyers. The greatest prosecutors know the underlying fact that they are the core of an imperfect system. Even better, great prosecutors are those who understand the context in which crime happens and the seriousness of criminal punishment on our nation’s youth. Still, I believe prosecutors bear some responsibility for mass incarceration and the obscene condition of America’s justice system. 

Almost all prosecutors are elected, and all-district attorneys are elected every four years. Voters need to hold their prosecutors accountable by voting for someone who makes reducing mass-incarceration and racial disparities a priority. There has never been a big push for voting in a DA race because voting initiatives are focused more on the central government. Our system is not working. We are locking up too many people and it is making our communities less safe. We have not been challenging our DAs every year to get them to create reform for the criminal justice system. That is why informed voting and accountability during the DA’s term is crucial in mending our communities. The voters cannot fall asleep at the wheel during the polls or even after the election. 

In Austin, Texas, specifically Travis County, Margaret Moore lost in recent Democratic primary elections to Jose Garza. Garza’s win is credited to his massive amount of support for criminal justice reform. The landslide win from Garza’s platform of reform and fewer harsh punishments for nonviolent offenders exemplifies the power of voting. Garza’s campaign highlights the fact that 70% of people sitting in jail in Travis County have not been convicted of a crime. The overwhelming support for Garza in the polls is a good sign that Americans understand one of the root causes of these issues comes from the DA’s office. Prisons do not reduce recidivism. The power of the prosecutor is vast and unrestrained. We need to vote for representatives that are creating policy that reflects the values of the community and restoring the trust in our justice system and prosecutors. 

Vote November 3rd.