Washington Lawyer - September 2019 - 36

WORTH READING

HOW PROSECUTORIAL ABUSE
DRIVES MASS INCARCERATION
Review by Ronald Goldfarb

espite a U.S. Sentencing Commission decision in 2014 to reduce
sentences for drug crimes and a decline in overall crime rate,
the country still holds the record for the largest incarcerated
population in the world. Countless books and articles have
been written on our obviously flawed criminal justice system,
but a new work offers what the others lack: hope. In Charged:
The New Movement to Transform American Prosecution and End
Mass Incarceration, journalist and legal scholar Emily Bazelon not
only explains an overlooked cause of mass imprisonment but
also offers solutions.

Courtesy of Random House

Bazelon takes a reader-friendly approach to
explaining breakdowns in the criminal justice
system. Employing a storytelling technique, Bazelon
follows two young defendants - Kevin and Noura
- laying out their backgrounds and the chain of
events that brought them into the system (on a
weapons and murder charge, respectively). Bazelon
describes their arrests, bail and pretrial detentions,
and trials, which are rare, as the overwhelming
majority of criminal cases are plea bargained. While
alternating between the micro stories of two typical
cases, Bazelon explains the macro problems they
reflect. She notes the vagaries of the appellate
process; the arbitrary, punitive, expensive, and often
self-defeating prison system; and the ineffective
help with treatment and training of underfunded
public, private, and community organizations. It's
not a pleasant ride for readers, and there aren't
many happy endings.
Bazelon's analysis doesn't reveal anything new, but
by describing the background and details of these
two people's cases, she reveals why and how injustices occur. She points to fate, faulty systemic procedures, misunderstood theories of law enforcement
and "correctional" procedures, misinformation
about the system's players (from the defendants to
district attorneys to elected judges), racism, and
even widely accepted but faulty assumptions of
critics and reformers.
According to Bazelon, prosecutorial discretion,
which for the most part determines who gets
36 WASHINGTON LAWYER

SEPTEMBER 2019

indicted and tried, plays a huge yet overlooked part.
Her reasoning is well developed, giving credence to
her conclusions. She argues that prosecutors have
too much power in affecting the outcomes of
cases, plea bargains being the most troubling and
abused power. How else to explain that more than
85 percent of state and federal criminal convictions
were disposed of by guilty pleas?
Bazelon's case studies may be few, but her book is
an exhaustive, panoramic review of our criminal
justice system. "[It] is ungainly and massive . . . a
behemoth, at once mighty and monstrous . . . the
balance of power between the prosecution, the
defense, and the judiciary shifted. We have to
readjust it," she writes.
Because of overstepping, misconduct, or inattention by police, legislators, probation and parole
officers, lawmakers, defense lawyers, and prison
personnel, "often the process itself was the punishment," Bazelon says. She pleads that we don't leave
reform to the professionals alone but also rely on
citizens who can elect reform-minded prosecutors.

Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work at
www.ronaldgoldfarb.com.

http://www.ronaldgoldfarb.com https://www.dcbar.org/

Washington Lawyer - September 2019

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