The Prosecutor's Office

During the time of the Industrial Revolution, criminal justice systems in Western countries began to redesign their previously rudimentary method of prosecution. Whereas crimes had previously been largely considered matters to be addressed between the involved parties or unilaterally by political institutions like a monarch or feudal lord, the role of the prosecutor became specialized to accusing an individual of a crime and presenting evidence to a judicial body (McDonald). Like almost every job, the work of the prosecutor has changed as a result of rationalizing forces. With the intended consequences of improved efficiency, calculability, and control, the tasks that prosecutors carry out, and the system in which those tasks are performed, have evolved.

The bureaucratization of the prosecutor's office has led to an increase in efficiency. There were 37% more state prosecutors in 2007 than there were in 1992, many of whom work in newly specialized roles. By carefully allocating resources to a certain type of crime or a high-profile case, prosecutors can optimize their talents and effort. Technology is also making prosecutors' jobs more efficient. Phone records, fingerprint databases, DNA profiling, and facial recognition technology all allow prosecutors to collect key evidence in a fraction of the time that would have previously been required.

Prosecutors have also made their decision-making processes more calculable. To assign numbers to human factors, prosecutors give numerical weighting to prioritize offenders based on predictive factors including habitual offending. The end result of the calculated formula is a list of cases in order of priority that aids in the decision of which cases to pursue and the resources that should be spent in their pursuit.

Plea Bargaining

Before the mid-19th century, guilty pleas were discouraged and scholars suggest that had plea bargaining been brought before the Supreme Court, the practice would likely have been ruled unconstitutional (Alschuler). By the early 1900s, however, corrupt local attorneys and police officers began to offer guilty pleas for their own profit, by charging money for favorable pleas and collecting the money involved in transporting prisoners, respectively. Soon, the justice system began to rely heavily on plea bargaining for less corrupt reasons, especially after caseloads grew during Prohibition (Alschuler). The apparent value of the plea deal, and its popularity, continued to rise during the crime waves of the late 20th century. That trend has shown no sign of stopping, and today 97% of criminal cases end with a guilty plea.

Because plea bargains require very little time and a sliver of the resources needed for a jury trial, they are the most efficient course of action for almost everybody involved. Prosecutors have to spend very little time or money toward getting their desired result: a conviction and the resultant prevention of crime. The efficiency of plea deals also means judges like them because they get reduced caseloads, and defense lawyers like them because they can devote their time to a smaller number of cases that they deem worthy of bringing to trial (Bohm).

Plea deals are also immensely predictable when compared to jury trials. Instead of placing the fate of an accused criminal before a jury that could choose to acquit, prosecutors often seek the very predictable outcome of a guilty plea. Beyond the predictability of the case outcome that plea bargaining provides, the process by which that outcome is achieved is also highly predictable. To emphasize how predictable guilty pleas have become, remember that 97% of criminal cases in the U.S. today are closed with a plea deal (Bohm). That predictability favors the defendant too. The certainty of a shortened sentence that accompanies a plea deal is often preferable to the unpredictable outcome and possible long sentence that comes with being convicted after pleading not guilty.

The now-ubiquitous plea bargain is particularly ineffective in carrying out justice for two types of criminal defenders. The first group is impoverished, innocent people. Because they are often afraid of being found guilty and receiving a harsh sentence, they often bow to the pressure of overworked defense attorneys who would prefer they enter a plea deal. Another group is habitual offenders, or people who are convicted under a three-strikes law, who are used by prosecutors as bargaining chips. “McJustice,” an article by Robert M. Brohm, provides an example of the irrationality of plea bargaining for habitual offenders. In Bordenkircher v. Hayes, the twice-convicted defendant was offered a harsh plea deal of a 5-year prison sentence. The prosecutor threatened to invoke the state’s three-strikes law if the defendant did not accept. In this way, habitual offender laws and plea bargaining can work together at the expense of the defendant. Crime victims also often feel that plea deals are irrational because they are largely left out of a process that they feel denies them full justice. The final irrationality of plea bargaining is that when a plea deal ends a very short trial, there is no chance that police or prosecutorial errors will be caught.

Sentencing

In the colonial and early American legal system, sentencing was the opposite of standardized. For any given trial, the jury had full discretion as to the sentence that should be given, in addition to a verdict of guilty or not guilty. By the turn of the 19th century, the “era of indeterminate sentencing” had begun (Gertner). This meant that judges now interpreted a growing and increasingly complex body of substantive law to hand down the sentence they felt best suited the crime. The indeterminate sentencing process still left quite a bit of freedom to judges and made biased and inconsistent sentences. By the 1980s, the guideline movement had ushered in a new era of sentencing. Congress’ 1984 Sentencing Reform Act created the United States Sentencing Commission, which creates standardized sentencing guidelines, and abolished parole for federal criminal cases (Gertner).

Sentencing guidelines, habitual offender laws, and determinate sentencing all have drastic effects on, calculability and predictability. Sentencing guidelines mean sentences are no longer determine largely by a judge, but by a matrix that takes into account the offender’s criminal history and severity of the crime. As a result, anyone convicted of a federal crime with a given criminal history who is charged with the same crime will all be given sentences that vary by no more than 25%. Determinate sentencing in the form of truth-in-sentencing laws means those criminals will also all serve between 85% and 100% of their sentence, whereas in the past some prisoners could be paroled much earlier (Hamilton). Habitual offender laws dictate the sentences that are handed down to repeat

The main appeal of sentencing guidelines and is that once someone has been convicted of a crime, the sentence they will serve is extremely predictable. By removing judicial discretion, the human judgements that could cause wild variations in sentences as a result of any number of biases or errors are minimized. Many people see this predictability as a useful tool in fighting racial bias in the criminal justice system, as the sentencing guidelines do not use the defendant’s race as a determining factor. Because federal sentencing guidelines utilized a numerical matrix to provide an allowed range of sentences, the result of a federal conviction anywhere across the country does not vary significantly, much like the mass uniformity of a meal from any McDonald’s in the country (Hamilton). To make the minimum time served more predictable and avoid erroneously short sentences, congress and every state in the United States have implemented mandatory minimums for a number of crimes.

Determinate sentencing, or truth-in-sentencing, is seen as the last step toward fully predictable sentences. In the past, even if the sentences handed down by a judge were highly predictable, it was impossible to predict how much of the sentence the convicted criminal would actually serve in prison. Parole could be granted to a prisoner based on good behavior and a reduced threat to society, drastically shortening their stay in prison. Now, parole has been eliminated in the federal justice system, and at least 85% of the sentence must be served in all cases (Hamilton).

Determinate sentencing has the overall impact of longer prison sentences, which has led to the overcrowding of prisons. The guiding ethos of determinate sentencing has been a transition from rehabilitation to the warehousing or managing of prisoners. Because truth-in-sentencing has greatly curtailed the reduction of time for good behavior, prison authorities have faced more difficulty with discipline and control of prisoners. Because determinate sentencing has removed discretion from judges and given it to legislatures and prosecutors, the system is perceived as less transparent and more affected by political objectives.

Conclusion

In one respect, the rationalization of criminal justice and prosecution in the United States has been a remarkable success. In the pursuit of crime prevention, criminals are being put behind bars more efficiently than ever and for longer, more predictable amounts of time. For the people that control the implementation of rationalizing policies, this can be seen as a win. Politicians and prosecutors alike have become more successful in their goals of conviction rates and quantity of convictions. One group, however, does not have any role in implementation but bears the effect of rationalization: the people who are charged and convicted within the system.

Although arguing for criminals’ rights is an unpopular battle, the rationalization of criminal justice had irrational impacts on more than just guilty defendants who many see as deserving of whatever punishment they are given. Innocent people like Eric Weakley are persuaded into taking guilty pleas for crimes they did not commit. Even the mass incarceration of guilty convicts is not always a societal benefit. The overcrowding of prisons that has resulted from mandatory sentencing for minor drug crimes is hardly in the interest of your average citizen. As a result, many of the trends in criminal justice today involved repealing some of the rationalization techniques that led to the irrational results we see (Porter). Sentencing reform is decreasing the length of sentences for nonviolent crimes and the quantity-over-quality approach is being reevaluated in light of backlash against mass incarceration, especially of people of color.