The Need for Prosecutorial Guidelines

This chapter explains why prosecutors are so central to prison growth and thus why their omission from reform efforts is so troubling. It shows that the current methods we have to regulate prosecutorial power are inadequate to the task at hand. The chapter demonstrates that we need to think much bigger and much more boldly than the current conventional approaches—but also that such ambitious approaches are politically and practically viable. To understand why charging and plea bargain guidelines are so important, it may help to demonstrate just how central prosecutors are to prison growth. The precariousness of prosecutorial elections is magnified by the relatively low turnout in most district attorney elections. Elections can install someone at the top more or sensitive to these concerns, and that matters. The New Jersey Supreme Court insisted on guidelines out of relatively narrow concern over separation of powers, that the legislature was using mandatory minimums to effectively give judicial power to prosecutors.