Prosecutors and Sentencing

Abstract

Prosecutorial decisions play an important, and sometimes a decisive, role in a defendant’s ultimate sentence. They begin with the selection of charges and may end with a recommendation on clemency or expungement of a criminal conviction. The influence of prosecutors over the sentence, therefore, is far more extensive than that of any other official. The charging decision sets the starting point for the sentence range. The prosecution tends to control entry into diversion programs that may spare an offender a criminal record after complying with a set of requirements. Plea bargains, which have become more frequent even in Europe’s civil law countries, usually focus on the type and scope of the criminal justice sentence. Mandatory minimum sentences, mandatory aggravators, and stacked charges provide prosecutors with overwhelming bargaining power, causing many defendants to waive their right to a trial. Judges tend to follow the parties’ agreements and impose the recommended sentence. In many states prosecutors routinely weigh in on parole decisions and determine whether to proceed against defendants for supervision violations. Even in clemency decisions, they frequently submit a recommendation.

Parole as a boxing match: Lifers, prosecution, and the adversarial making of parole hearings

“…Such bodies are meant to conduct adversarial hearings in accordance with the prisoner's procedural rights (Padfield, 2013). In practice, prosecutors in the European system usually play no role in parole release, and the State is represented at the parole hearing, if at all, through prison governors, parole or probation officers (Demleitner, 2021;van Zyl Smit and Appleton, 2019). In the UK, lifers' parole panels are meant to act as an expert inquisitorial decision-making body tasked with evaluating risk, and are not meant to be characterized by the adversarial approach found in criminal courts; however, in practice they are an "adversarial/inquisitorial hybrid" (Padfield et al, 2000;Padfield, 2013).…”

“…Lifers’ parole hearings in the U.S. have been viewed as containing “some adversarial elements, but the overall process does not resemble a commitment offense retrial” (Young, 2016: 444; Kokkalera, 2022: 189). Most U.S. parole systems allow prosecutors to give written or oral input at parole hearings (Cassidy, 2019; Demleitner, 2021). U.S. prosecutors’ arguments at lifers’ parole hearings, as legal scholars have suggested, rely heavily on risk but also on crime severity, especially in sensitive cases that are exposed to racial and political biases.…”

“…U.S. prosecutors are described as displaying “tough justice” at sentencing, showing fervent zeal for their worldview, dogmatically aiming to win at all costs, and spending whatever it takes to extract the maximum punishment (Barkow, 2021; Wright and Levine, 2018). With regard to parole, U.S. lifers’ parole boards have been found to interpret non-release recommendations by prosecutors as highly persuasive, and the odds of being granted parole are significantly lower if a prosecutor opposes release (Bell, 2019; Murcia, 2022; Demleitner, 2021; Young and Pearlman, 2022). However, a greater commitment to broader social values, resistance to mass incarceration, and a preference for evidence-based policy for lifers has been seen in the rise of a “new progressive prosecution” in some U.S. jurisdictions (Green and Roiphe, 2020).…”