Strategic Communications Analysis for

Linara Davidson
Chief of Staff, Mayors Office of Criminal Justice
May 9, 2015

Mass Incarceration and Prosecutorial Discretion

Credit: Brennan Center for Justice

Terry Roethlein
Dadjie Saintus

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Background
The United States leads the world in incarceration, with over 2.2 million inmatesa
quarter of the global prison population despite having only 5% of the worlds population
(International Centre for Prison Studies 2013; Sentencing Project 2012; Pfaff 2013). Following a
steady incarceration rate of about 100 per 100,000 people for much of the 1900s, the national
incarceration rate has skyrocketed over five-fold in the last four decades leading to its
unprecedented levels today (Clear & Austin 2009; Blumstein 2011).
Much of the discussion on the nations prison boom has emphasized the consequences of
federal tough-on-crime polices enacted in the eighties and nineties to fight a growing prevalence
of violent crime and drugs. These policies, such as habitual offenders or three-strikes laws,
prescribed mandatory minimum sentences for as much as 25 years to life for repeat offenders
convicted of even minor crimes, including low-level drug offenses (Stolzenberg & Stewart
1997). However, a focus on tough-on-crime policies masks important distinctions in the federal
and state prison populations. While 50% of federal inmates are incarcerated for drug offenses,
only 17% of state inmates are drug offenders and over 50% of state inmates are incarcerated for
violent crimes (Sentencing Project 2012). John Pfaff, a professor at Fordham Law School, has
argued that since state and local jails comprise 90% of the countrys prison population, a focus
on reducing drug convictions alone would be insufficient to address the burgeoning prison
population (Neyfakh 2015). Moreover, lengthier sentences do not adequately explain the growth
of the prison population, as half of all prisoners serve 2-3 years while only 10% serve 7-8 years
(Neyfakh 2015).
Mass incarceration rates are further complicated by significant racial and socioeconomic
disparities that persist at both federal and state levels. Men of color comprise nearly two-thirds of

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the nations prison population, with black and Hispanic men jailed at 6 and 2.5 times the rate of
white men (The Sentencing Project 2014). As of 2001, 22% of black men age 35-44 have gone
to federal or state prison, compared to 10% of Hispanics and 3.5% of whites (Bureau of Justice
Statistics 2003). A recent study found that, even after controlling for determining legal factors
such as arrest offense and the defendants criminal history, black males are charged at higher
rates than whites under three-strikes and mandatory minimum sentencing laws for committing
the same crimes (Rahavi & Starr 2014). Since the eighties, mass incarceration rates have
increased most sharply within the population of young males with low levels of education, and
currently over half of those entering prison do not hold a high school diploma (Western & Pettit
2010; Wilson 2014).
Mental illness also plays a role in the rates of mass incarceration. Since the closing of
psychiatric facilities and deinstitutionalization of the mentally ill in the 1960s, the proportion of
the inmates with mental health problems has dramatically increased (National Institute of
Corrections). By 2005, 56% of state, 45% of federal, and 64% of jail inmates had a mental health
problem. Moreover, roughly 30% of jail inmates and 40% of federal and state prisoners with no
prior history of mental illness developed mental health symptoms while incarcerated (Bureau of
Justice Statistics Special Report 2006). In New York City, about 45% of inmates suffer from
mental health issues, and over 85% have substance abuse problems (NYC.gov, 2014a).
Although the factors contributing to mass incarceration are complex, one critical area that
warrants further examination is prosecutorial discretion. Even as violent crime has decreased
since the mid-nineties, the number of felony charges filed by district attorneys has continued to
rise, leading to a greater number of people convicted and sentenced to prison (Pfaff 2013).
Prosecutors exercise unfettered and near absolute discretion in determining whether or not to

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charge a crime, the severity of the offense, whether or not to plea bargain, and what sentence to
recommend following conviction (McKenzie et al 2009). However, a culture in which district
attorney offices overemphasize gaining convictions as the benchmark for success may promote
excessive filing of felony charges for minor offenses and perpetuate racial and other disparities
in the system (McKenzie et al 2009). District attorneys may feel pressured to prosecute cases
with a higher likelihood of convictions such as low-level crimes or drug offenses to build a
track record and advance their career prospects. In addition, assertive police tactics that target
minor offenses, such as jumping turnstiles, riding bikes on sidewalks, or low-level drug offenses,
contribute to an increased number of arrests, particularly in poor minority communities which
often have a higher police presence (Howell 2014). The increase in arrests for minor offenses
and the prosecution of these charges funnel more cases into overburdened criminal courts at
great cost of time and resources (Howell 2014).
Goal One: Raise Public Awareness
In order to carry out an overhaul of prosecutorial discretion, Mayor de Blasio must
attempt to educate New Yorkers about this complicated problem and create a public demand for
change that can then be translated into feasible policy implementation. As the mayor reveals to
the public that not only tough-on-crime drug sentencing is the reason for increased
incarcerations, he must be able to present a list of already existing and incipient programs
designed to rectify and compensate for prosecutorial overreach (read more below). He also must
be able to present research and statistical evidence that clearly exhibits the problem, as well as
evidence that supports his choices for alternatives to prosecutorial overreach.
In order for the public to be receptive to his plans for change, the mayor and his
surrogates must always be clear that the overriding intention is to keep crime rates down while

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working to lower incarceration rates. While many New Yorkers are concerned about extremely
high incarceration rates and the over-sentencing and over-policing of minorities, they will most
likely have some trepidation about a return to the liberal prosecution policies of earlier eras,
since these could potentially mean a return to the high crime rates that plagued the city at the
time.
The alarming drop in violent crimes in New York since the nineties has frequently been
linked to CompStat, tougher policing, and tougher sentencing by the NYPD and others. There is
still no proof that says either of these were not the reasons the city has become so much safer, so
it is extremely important to address this concern by reminding the public that sentencing for
serious crimes will not abate, but the over-emphasis on less serious crimes will. The mayor must
explain that diversion and perhaps probation are useful tools for keeping crime rates down while
preempting heavy sentencing. He must brand himself as a tough liberal who can provide
visionary leadership by taking care of the two cities he famously referred to in his campaign
both the wealthy privileged elites and the less privileged poor who have become increasingly
marginalized in the struggle to keep crime rates down.
While being careful not to violate the memory of his more conservative, crime-stopping
predecessors Bloomberg and Giuliani, the mayor must tactfully differentiate himself as a mayor
who is concerned that the incarceration of large numbers of New Yorkers is not an acceptable
compromise for decreased crime rates. De Blasio must remind his public that the costs for the
current high rates of incarceration are too severe. He must be clear that prisons are not only a
drain on the budget but they are also filled with improperly sentenced and institutionalized
mentally ill and poor minorities. Hopefully by pointing out that these parties are indeed victims

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who need to be properly tended to, the mayor will gain the understanding and support of New
Yorkers.
Mayor DeBlasio has already expressed his concern that the over-policing of minorities
has led to the abuse of power manifested by Stop and Frisk and by the police killing of Eric
Garner last year and this stance has made him unpopular with the NYPD and its supporters. For
this reason, Mayor de Blasio must carefully and visibly demonstrate that his progressive policies
are designed to help law enforcement work more effectively and humanely. The message must
be clear that prosecutors and police will not be disempowered, but rather that they will be guided
and consulted in the process of examining and changing the system. Moreover, money saved
from decreased incarcerations will be shared with law enforcement so their policing can be safer
and more preventive of crime, as opposed to being more reactive.
Goal Two: Promote Alternatives to Incarceration
As Mayor de Blasio educates New Yorkers on the high consequences to longstanding
tough-on-crime practices, he must promote alternatives to incarceration as a smart-on-crime
strategy that will provide substantial monetary benefits, increase public safety, and advance
fairness in the criminal justice system. By implementing alternatives to incarceration, the mayor
will reduce the number of inmates in city jails, easing the burden on taxpayers and saving the
city an annual cost of about $168,000 per inmate (Santora 2013).
The mayor must emphasize that he will use the savings from reducing the prison
population to invest in less costly diversion initiatives and strengthen the police force to support
further crime prevention. By investing in diversion programs, such as mental health and drug
treatment initiatives, community programs that provide former inmates with training and skills to
facilitate employment, and juvenile programs, the mayor will send the message that he is

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targeting the root causes that drive disproportionate numbers of mentally ill persons and poor
minorities into the prison system.
At the same time, the mayor must emphasize that he will also invest money to strengthen
the police force through such measures as additional training, the purchasing of body cameras,
and increasing diversity in police recruitment. In doing so, the mayor will send the message that
he is committed to promoting public safety, lowering crime, and improving relations between
police and the communities they serve.

Recommendations
Work with the Vera Institute for Justice to use data to advance fairness in criminal
prosecution.
The prevailing culture in DA offices is one where a high conviction rate signals
outstanding performance and a low conviction rate means the office is less successful. This
faulty perspective perpetuates systemic biases in the criminal justice system, particularly the
disproportionate prosecution and conviction of minorities. MOCJ should support the
development of an assessment plan that identifies evidence of racial bias and over sentencing on
the part of prosecutors. The Vera Institute, a nonprofit public policy organization that uses
research and technical assistance to help government leaders and civil society improve the justice
system, has already partnered with DAs in Wisconsin, North Carolina, and California to develop
an internal assessment and management procedure that established performance indicators for
evaluating fairness within the prosecutorial process. The assessment study also encouraged chief
prosecutors to establish regular meetings with their staff to create an environment where racial
bias could be discussed and a culture of transparency and accountability could be recognized and

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encouraged. Mayor de Blasio needs to engage Vera for a similar study of New Yorks
prosecutorial trends. The city should also take advantage of a study already released by
Manhattan DA Cyrus Vance and the Vera Institute that examined racial disparities in the
Manhattan criminal justice system and found that African-Americans and Latinos were more
likely to receive a sentence for imprisonment. While the study found that African-Americans,
Latinos, and Asian defendants were more likely than Anglo-American defendants to have their
cases dismissed, cases that went to trial resulted in a high percentage of African-American and
Latino defendants receiving a jail or prison sentence, as opposed to an option of community
service, probation, or fines. This study and further work could provide valuable support for the
continued investigation and overhaul of the citys sentencing practices (Vera Institute of Justice,
2015).

Encourage DAs to decrease prosecutions of low-level drug offenses.

Mayor de Blasio must continue to use his influence and his control over the finances of
city DAs to create a culture where each borough is encouraged to follow the lead of Brooklyn
DA Ken Thompson and Manhattan DA Cyrus Vance as they cut back on the prosecutions of
low-level drug offenses. In an articulated attempt to keep people of color out of the prison
system for these crimes, de Blasio has mandated that cases that involve an offender carrying a
small amount of marijuana would be thrown out. The policy change will no doubt affect the
number of cases that go before prosecutors and thus decrease the number of felony or
misdemeanor convictions. The mayor might make his funding of DA offices in the other
boroughs contingent upon implementing this change and eventually a significant drop in
incarceration rates could influence policies throughout New York State and other states as well.

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If necessary, de Blasio could refer to the outside case of Milwaukee DA John Chisholm, who has
also declined prosecuting cases of possession of marijuana and drug paraphernalia, which were
at the heart of a seminal Vera Institute study. Under Chisholms purview, the over-all number of
misdemeanor prosecutions in Milwaukee County has dropped from nine thousand to fifty-two
hundred (Clifford, 2014; Gonen, 2014; Toobin, 2014).

Increase investment in the mayors behavioral health task force, providing an example for
the rest of the countrys major cities.
Since approximately 40% of all prison inmates suffer from mental illness, it is evident
that the de-institutionalized mentally ill are merely being cycled into a different type of
institutionthat of the prison industrial complex. According to statistics, 7% of inmates have
serious mental illness like schizophrenia or bipolar disorder; 38% have broad mental illness; and
85% suffer from substance abuse.
The de Blasio Administration has launched a $130 million plan to reduce the number of people
with behavioral issues and mental illness in prisons. This plan should be nurtured, expanded, and
used as a model for other cities if it is successful.
The plans comprehensive approach affects treatment strategies at every stage of the
criminal justice system, attempting to reduce the number of arrests and keep the mentally ill out
of the prison system. Recommendations ensure that individuals with behavioral health disorders
do not enter the criminal justice system in the first place. If they enter the system they should be
treated outside of a jail setting and if they are in jail, they must receive treatment that is
therapeutic, rather than punitive. When released, they must be connected to continued, effective
treatment services.

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Mayor de Blasio can remind policymakers that less incarcerations means freeing up more
money that can be used to fund the expanded treatment of the many suffering mentally ill, who
commit crimes because they are not being properly treated (NYC.gov, 2014a).

Implement wide-scale diversion initiatives to reduce the adult and juvenile inmate
population.
In Milwaukee, Wisconsin, DA John Chrisholm has pioneered an early intervention
diversion initiative targeting offenders in the period between arrest and arraignment. Defendants
complete questionnaires that probe their criminal history, socioeconomic background, and risk
factors such as mental health history and substance abuse behaviors. In the first stage of the
questionnaire, defendants with low scores are automatically directed to diversion initiatives,
while those with higher scores undergo further evaluation. Hence, this approach provides a
framework to distinguish low-level offenders from those with violent or serious criminal
histories. This strategy has increased accountability and allowed district attorneys to determine
which defendants will benefit most from diversion services while ensuring that more serious
offenders are prosecuted appropriately. Since implementation, prosecution of low-level drug
offenses has decreased for both blacks and whites, with the number of black residents in
Milwaukee County sent to state prison on drug charges dropping 50% (Toobin 2015).
In Brooklyn, DA Kenneth Johnson has launched a pilot program, Project Reset, targeting
16 and 17 year old youth arrested for minor offenses. Under Project Reset, these youth will be
directed to a diversion program for counseling and kept out of the courts. This program builds on
the success of a similar initiative led by Brooklyn arraignment courts Judge George Grasso to

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intervene in the lives of juvenile low-level offenders before they become ensnared in the court
system.
Similar programs implemented on a wide scale may provide substantial benefits over the
long-term. The Council of State Governments Justice Center examined the impact of Texas
juvenile justice reforms which shifted juvenile offenders from state prisons to local jails and
created diversion programs to keep youth in their communities Their study found that from
2007-2012 there was a 66% decrease in the number of juveniles in state prison and a 33%
decrease in juvenile arrests during the same period. At the same time, the state estimated
hundreds of millions in savings from their corrections budget.

Use the Justice Reboot initiative for Rikers Island to decrease felony convictions filtering
through New York City courts.
The Rikers Island Complex holds local offenders who cannot afford to post bail and often
languish for over a year awaiting trial. In an attempt to stem the flow of violence and corruption
on Rikers Island, the de Blasio administration is seeking to cut by one quarter the daily inmate
population of 10,000 and eventually solve half of those cases within six months. Mayor de
Blasio should use this action as a reason to urge prosecutors to decrease felony convictions by
considering that many inmates have already served time in an unpleasant environment. This
added pressure would discourage prosecutorial overreach, if only for the sake of lowering the
number of inmates on Rikers Island. The city should also speed up the development of an online
tracking tool that would allow authorities to monitor cases more easily and prevent backlogs by
conducting better coordination between prosecutors, defense lawyers, and judges. (NYC.gov
2014b; Schwirtz, 2014).

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Support the NY Commission on Prosecutorial Conduct.

In 2014 two New York state legislators drafted a bill to create a public commission
specifically designed to investigate complaints of misconduct by prosecutors. The commission
was to be modeled upon New York's Commission on Judicial Conduct, which investigates
allegations of misconduct and imparts discipline via public admonition, censure, or removal from
the bench. Since much prosecutorial misconduct and abuse of discretion takes place out of public
view and with little or no professional oversight, such a commission is greatly needed and should
be supported by the mayor. Unfortunately, the bill died last summer but it would make sense to
benefit from the momentum behind the proposed legislation and work with allies who are
seeking similar ends. The MOCJ could appoint a liaison to the legislators supporting the creation
of the commission, establishing a city-to-state network of political action charged with renewing
presentation of the bill each year until it passes. A prosecutorial commission could provide
oversight needed to provide a public check on discretion and a means for censuring or removing
prosecutors who pursue felonies for political gain (Goldman, 2014).

Apply pressure to prosecutors with public media engagement.

Use media to educate members of the public about limits on prosecutorial discretion so
they can elect less punitive prosecutors in the future. Inform the public through op-eds, news
stories, and research data and influence partners so they may also place similar stories in
mainstream media. Use some of the partners listed below as surrogates to circulate media
messages that are critical of prosecutors who engage in overreach. Millennials and minorities
should be engaged through social media like Twitter to share videos, polling information, and

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data tracking that will inspire a wider public to support culture change around the issue. Activist
partners can be used to name and shame those prosecutors who are over-sentencing.

Support the growing movement to advocate for the release of grand jury evidence in cases
of death at the hands of police.
Recently the New York Civil Liberties Union, the NAACP, and NYC Public Advocate
Letitia James actively advocated for the release of grand jury evidence in the case against the
police officer who choked Eric Garner to death. The court ruled against releasing the notes from
the controversial failed indictment, but there is a growing demand by advocates and some
government offices, including the New York Country District Attorneys office, for transparency
in cases where fatal police encounters dont result in indictment. As Letitia James said, The
grand jury system is flawed. The prosecutor has complete control over the process. He decides
what witnesses to call, what charges to bring, which witnesses will receive immunity." Mayor de
Blasio would help to foster public confidence in the legal system if he supported this check on
prosecutorial privilege and this policy could possibly be extended to cases where individuals are
needlessly convicted of felonies. Promotion of transparency in all stages of the legal process is of
utmost importance and granting public exposure of grand jury machinations could have a
potentially dramatic effect on the number of felony convictions (Baker, 2014; Parascandola,
2015).

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Support New York state governments requests for special investigations of killings by
police.
In late 2014, New York Attorney General Eric T. Schneiderman asked Governor Andrew
M. Cuomo to grant his office special powers to investigate and prosecute killings of unarmed
civilians by law enforcement officials. Although this request received immediate pushback from
Brooklyn DA Kenneth Thompson, who saw it as an encroachment on his powers, it makes sense
for the mayor to support any statewide efforts at increased prosecutorial oversight. Senate
Democrats in Albany are also pushing for an Office of Special Investigation, which would
review findings and conduct oversight. Both of these proposals, if carried out, would create a
culture change that increases transparency and puts limits on prosecutorial discretion. If the state
government sends the message to prosecutors considering indictments for civilian deaths that
their actions are being closely watched with an eye for public accountability, it creates an
environment in which discretion around charging felonies will also potentially be monitored
(McKinley 2014).

Next Steps
It is crucial for the MOCJ to connect with the Vera Institute for Justice to use data (some
of it already gathered) to advance fairness in criminal prosecution. As stated earlier, data that
establishes prosecutorial overreach as a problem that is exacerbated by racial bias will serve as
the bedrock justification for marshaling changes in the system. The office must work to institute
a data tracking apparatus that can analyze prosecutors sentencing patternstheir number of
felony convictions and the racial makeup of those convictions.

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As adequate data is obtained, the MOCJ must meet with media specialists to prepare for a
considered public engagement that simultaneously applies pressure to prosecutors, reminding
them they work for the public and therefore must address the publics concerns around high
prison populations and prosecutorial discretion. It is very important for Mayor de Blasio to keep
the public, and the media, on his side. His reputation with the NYPD was already tarnished a bit
in 2014 by the perceived clash over deaths caused by law enforcement. As public opinion
becomes more critical of law enforcement, he must judiciously harness those sentiments and
channel them into support for effective policy change.
Immediately appoint a liaison to the legislators who proposed the establishment of a New
York Commission on Prosecutorial Conduct. It is imperative that political wheels start to turn
that will ensure statewide support of governmental checks on prosecutors. A liaison between the
states biggest city and its capitol will ensure that the next attempt to pass the bill will have more
support.

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References
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nytimes
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Blumstein, A. (2011). Bringing Down the U.S. Prison Population. The Prison Journal. 91 (3):
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Clear, T.R.; Austin, J. (2009). Reducing Mass Incarceration: Implications of the Iron Law of
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McKenzie, W., Stemen, D., Coursen, D., Farid, E. (2009). Prosecution and Racial Justice:
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ve_new_theory_for_why_so_many_americans_are.html
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Court Delays, nytimes.com
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Toobin, J., (2015). The Milwaukee Experiment, newyorker.com

http://www.newyorker.com/magazine/2015/05/11/the-milwaukee-experiment
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