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Federal Sentencing Reporter

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State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative grants of authority to other players in the criminal justice system all serve to limit the freedom of prosecutors.

The public health threat COVID-19 presents to those detained in jails and prisons has turned into a case study of prosecutorial authority. It powerfully displays the sway political ideology, divergent purposes of punishment, and public safety considerations hold over release decisions. The prosecutors most successful in decreasing inmate population numbers quickly have been not only proactive but also able to build effective coalitions with other criminal justice actors.

Whether COVID-19 will in the long run lead to smaller jail populations and shorter prison terms remains an open question. Yet, it further reinforces and strengthens the role of prosecutors whose expansive reach into our communities—with an eye to incarceration or decarceration—continues to be a powerful feature of the American criminal justice system.



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