Prosecutors as punishers: A case study of Trump-era practices

Abstract

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S. This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes. Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts. Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches. Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools. My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

Shifting the practice of coercive penal care over time in a problem-solving court

“…While this is not a unique problem, other research suggests that criminal justice actors in other places have worked to circumvent restrictions on public housing precisely because they know it provides stable addresses for people (Bonnet, 2019). Our results also provide an interesting comparison to Lynch's (2023) findings around prosecutorial resistance to reforms. In this case, court actors largely embraced reforms but were still stymied by the legal structure and organizational practices of the court, especially early on.…”

“…Additionally, pre-existing organizational practices shape interpretation of new policies (Verma, 2015), suggesting that even if new programs are implemented, broad penal practices often remain stable (Beckett et al, 2018). For example, Lynch (2023) found that reform efforts were undermined by federal prosecutors dedicated to maintaining punitive approaches through charging and plea bargaining under the Trump administration. These studies suggest that examining organizations over time is important for understanding how these practices are not only constantly negotiated in a dynamic way, but also might shift as programs develop.…”

“…Second, we studied these processes in a brand-new court with actors expressing clear openness to reform. Compared to established organizations, or contexts in which reforms are resisted (Lynch, 2023), this setting is well-suited for understanding the initial rhetoric around goals and intentions, as well as how treatment-oriented reforms are "hybridized" with punitive practices on the ground. Finally, we articulate the mechanisms of how coercive penal care operates in this context, where we argue that the negotiation and prioritization of goals and the individualization of responsibility were deployed to resolve the sometimes-conflicting enactment of punishment and rehabilitation.…”

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

“…In most U.S. parole systems (Cassidy, 2019), and some Australian, African (van Zyl Smit and Appleton, 2019), and Asian jurisdictions (Ono, 2023), the State's representatives, such as prosecutors and similar officials, play a role in lifers’ parole process by expressing their opinions during the parole hearings. Although scholars have made considerable efforts in exploring the work of State representatives at sentencing (Barkow, 2021; Wright and Levine, 2018; Lynch, 2023), their parole work has remained largely understudied (a recent exception is Aviram, 2020). This neglect aligns with the common view of prosecutors’ work as ending when the judge's gavel falls and as detached from the implementation of punishment (Barkow, 2021; Lynch, 2023).…”

“…Although scholars have made considerable efforts in exploring the work of State representatives at sentencing (Barkow, 2021; Wright and Levine, 2018; Lynch, 2023), their parole work has remained largely understudied (a recent exception is Aviram, 2020). This neglect aligns with the common view of prosecutors’ work as ending when the judge's gavel falls and as detached from the implementation of punishment (Barkow, 2021; Lynch, 2023). In addition, the focus of parole literature has been on the professional identity of parole board members rather than on other parole actors (Guiney, 2022; Young and Pearlman, 2022).…”