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Prisoners of Politics: Breaking the Cycle of Mass Incarceration. By Rachel Elise Barkow. Cambridge, MA: Belknap Press of Harvard University Press. 2019. 291 pp. $35.00 hardcover
The first two-thirds of this important book canvass the horrors in the American criminal process: carelessly defined crimes; bullying prosecutors; passive judges; needless pretrial detention; draconian punishments; mass arrests; horrible crowded conditions in jails and prisons; pervasive racism and punative populism. And this, despite the fact that crime rates have plummeted to near all-time lows. This indictment is familiar to most readers of the Law & Society Review, who would probably also want to see then tied to some theoretical framework, such as the "culture of control" in late modernity, the consequences of deindustrialization, or a theory that treats the United States is an undeveloped and ineffective state. However, the book's major contribution is found in the last third of the book, where Barkow sets out ideas for reform. Her proposals adopt standard administrative law practices to police prosecutors, expand reliance on experts, and foster a more robust judiciary.
Let's first examine the most distinctive of these ideas, the use of administrative law techniques to police prosecutors. And, let's focus on three of these techniques: requiring articulated policies for charging; imposing a division of labor that prohibits prosecutors from shaping policies outside their core responsibilities (e.g., forensics labs, clemency, and corrections) and that distinguishes the roles of prosecutors as investigators and advocates; and developing continuous back-end audits to oversee prosecutorial efficiency and effectiveness in light of developed policies and budget constraints.
These suggestions are valuable, but are not all that new, and some have been effected here and there over the years. For instance, Kings County (Brooklyn) and Orleans Parish (New Orleans) have been widely and approvingly cited for having detailed written policies for bringing cases, and for establishing early case assessment offices staffed by experienced prosecutors. No doubt these policies have yielded benefits, but these two jurisdictions also rank in the top ten counties nationwide for their exoneration and pretrial detention rates. Similarly, in the 1970s, prosecutors' offices adopted computer management systems which allow centralized oversight of staff and provide the capacity to plan for and manage prosecutorial discretion and budgeting. But these have not led to the...