How the Power of Prosecutors Drives Mass Incarceration

In 1971, President Richard Nixon vowed to “wage an all-out offensive” against “public enemy No. 1.” That foe was drug abuse, and his call to battle launched a costly war that is now in its fifth decade and has put hundreds of thousands of people behind bars. The casualties of the war on drugs are most concentrated in the federal prison system, where drug offenders make up more than half the population.

In her new book, social psychologist Mona Lynch takes an in-depth look at federal prosecutors and the drug laws they enforce, pointing to their largely unmitigated power as a primary driver of mass incarceration in the U.S. Lynch’s research in three regional federal court districts examines how prosecutors use harsh federal drug laws to encourage defendants to plead guilty rather than go to trial and the ways these practices have contributed to racial disparities in the federal prison population. TakePart spoke to Lynch about Hard Bargains: The Coercive Power of Drug Laws in Federal Court. The conversation has been edited for length and clarity.

TakePart: How has the power of federal prosecutors changed over time?

Mona Lynch: The federal system was allegedly reformed in the 1980s in an attempt to control the discretion of judges and the disparities in sentences that were coming because of that discretion. That system now continues, but it happens through mechanisms that aren’t on the record. In the old system, the judge made public rulings in front of a court reporter, creating a public record of the judge’s sentencing logic. Now, many of the things that can drive sentences up happen behind closed doors with prosecutors. Prosecutors’ power gets exercised more robustly prior to the final sentencing stage and often in places outside the view of the court. It’s harder to get a grasp on it.

TakePart: In terms of volume, the state prison population is much larger than the federal prison population. Why did you decide to focus on drug laws and prosecutors in the federal system?

Lynch: Prosecutorial power and its role is fairly similar across systems, but the federal system is the most important player in terms of how drug prosecutions have contributed to mass incarceration. It has been a really huge engine in terms of driving a huge increase in the federal prison population and ratcheting up the length of sentences for drug defendants. Until 2011, federal drug prosecutions were the No. 1 category of cases being prosecuted. It’s a good case study of a larger phenomenon.

TakePart: Although we still have a long way to go, the war on drugs has become a focal point in the criminal justice reform movement over the last few years. Do you think real progress is being made?

Lynch: We are making incremental progress, but it’s spatially divergent across federal court districts. In places that have more of a collective will to move away from punitive prosecutions, that has happened, and it has happened less in places that are more committed to aggressive drug prosecutions. Sentencing reform efforts like the Fair Sentencing Act have directly attacked racial disparities. But they don’t address the problem of who’s being brought into the system by policing practices. We have to grapple with that.

TakePart: While they remain at a standstill, what do you think of the current sentencing reform efforts in Congress?

Lynch: They are a very good start, but those [reform efforts] are addressing the big, obvious challenges—when mandatory minimum sentences are triggered, for example, and the sentencing enhancements that can be built into drug cases. These are good steps, but they’re not going to contain the problem. We need to think about how to contain the power to ratchet up the length of drug sentences that can be put into play in any jurisdiction that has the will to do so.

TakePart: What surprised you while conducting field research in the federal district courts?

Lynch: We think of federal drug prosecutions as targeting kingpins or people dealing with large amounts of drugs, or of federal drug cases targeting large-scale conspiracies. But when you actually go to federal court in some jurisdictions, it’s the local kids dealing on the corner that are being dragged into federal court. There are a huge number of small street-level cases.

TakePart: What sort of change do you hope your book will inspire?

Lynch: I’m happy to be able to contribute research that challenges the notion that a top-down policy will be implemented the same way in different places. We need to think about how a policy may get absorbed into local practices to mitigate the various twists and turns people will take to get around it. When and if Congress acts, that’s only a starting point for us; it’s how it gets put into action that’s important. Policy change is the first step—we can’t just shake hands, congratulate ourselves, and walk away.