Why Prosecutors Hold the Most Power in American Criminal Justice

The check was for $88.30. In Lexington, Kentucky, in the early 1970s, a man named Paul Lewis Hayes was charged with passing a forged instrument, a crime that carried two to ten years in prison under state law. His lawyer met with the county prosecutor, and the prosecutor made an offer: plead guilty, and the state would recommend five years. Then he added a condition that turned a small case into a famous one. If Hayes refused, the prosecutor would go back to the grand jury and seek an indictment under Kentucky's Habitual Criminal Act, because Hayes had two earlier felony convictions. Under that law, a conviction would mean a mandatory sentence of life in prison. Hayes refused. The prosecutor did what he said he would. A jury convicted him, and Paul Lewis Hayes was sentenced to life for a bad check. When his case reached the Supreme Court in 1978 as Bordenkircher v. Hayes, the question was whether that was allowed. The answer, by one vote, was yes.

In short: In American criminal justice, the prosecutor decides what crime to charge, what deal to offer and what sentence a defendant is risking by going to trial, and those choices are almost never reviewed. Because nearly all convictions come from guilty pleas, the real decisions happen in offices, not courtrooms, which is why elections for district attorney matter more than most voters realize.

The Court's answer in 1978

Justice Potter Stewart wrote for the five-justice majority. His reasoning was candid about how the system works. Plea bargaining, he wrote, is an accepted and necessary part of criminal justice, and in that give-and-take, a prosecutor may legitimately offer leniency to a defendant who pleads and threaten harsher charges against one who does not. What matters is that the prosecutor had probable cause to bring the habitual-offender charge from the start. Since he could have charged Hayes with it at the outset, the Court reasoned, he could also hold it in reserve as a bargaining chip. Hayes, a grown man with a lawyer, was free to accept or reject the offer.

Four justices disagreed. Justice Harry Blackmun, joined by Justices William Brennan and Thurgood Marshall, argued that the prosecutor had openly admitted he was bringing the life-sentence charge only to punish Hayes for insisting on a trial, and that punishing someone for using a constitutional right is exactly what due process forbids. Justice Lewis Powell wrote separately, noting that the prosecutor himself had apparently not thought a life sentence was the right punishment for Hayes's conduct, or he would not have offered five years.

That observation gets at the heart of it. The prosecutor's own offer was the best evidence of what he believed the crime deserved. The life sentence was not about the check. It was about the trial.

Why almost nobody goes to trial

The Sixth Amendment promises a jury trial, and courtroom dramas suggest that trials are how criminal cases end. They are not. In Missouri v. Frye in 2012, Justice Anthony Kennedy wrote for the Court that ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. He went on to describe plea bargaining as not some adjunct to the criminal justice system but the system itself.

Think about what that means. The evidence is never tested in front of a jury in the vast majority of cases. Witnesses are not cross-examined. The defendant does not testify. A judge accepts the plea after a short hearing in which the defendant says he understands his rights and is pleading voluntarily. The real negotiation, about what charges stick and what sentence follows, happened earlier, between two lawyers, one of whom held most of the cards.

Courts have tried to put some limits around this. In Santobello v. New York in 1971, the Court held that when a prosecutor breaks a promise made in a plea deal, the defendant is entitled to a remedy. In the 2012 cases, including Lafler v. Cooper, the Court held that defendants have a right to competent advice from their own lawyers during plea bargaining. Those are protections about process. None of them limits the size of the gap between the offer and the threatened sentence, which is where the pressure comes from.

The four decisions that belong to the prosecutor

A prosecutor's power comes from a series of choices, each of which is largely unreviewable.

First, whether to charge at all. Police make arrests, but a prosecutor decides whether a case goes forward. A decision not to prosecute is almost never challenged in court. That is how some prosecutors have decided not to pursue minor drug possession, and how others have declined to charge police officers.

Second, what to charge. The same conduct can often fit several crimes with very different penalties. A fight can be charged as simple assault or as aggravated assault. Selling a small amount of drugs near a school can trigger an enhancement. Prior convictions can turn an ordinary felony into a habitual-offender case, as Hayes learned. Prosecutors can also stack charges, filing many counts for a single episode, which raises the theoretical maximum sentence and therefore the risk of going to trial.

Third, what to offer. The plea deal sets the real sentence in most cases, and in systems with mandatory minimums, the charge effectively decides the sentence before a judge ever hears the case. If a prosecutor charges a crime with a ten-year mandatory minimum, the judge cannot go lower, no matter what she thinks of the defendant. If the prosecutor drops that count in exchange for a plea, the minimum disappears. Federal law gives prosecutors one more lever: a defendant who provides substantial assistance against others can receive a sentence below the minimum, but only if the government files a motion asking for it.

Fourth, what to disclose. In Brady v. Maryland in 1963, the Supreme Court held that prosecutors must turn over evidence favorable to the defense. Compliance depends heavily on the prosecutor's own judgment about what counts as favorable, and violations often come to light years later, if ever.

Then add pretrial detention. A defendant who cannot afford bail sits in jail while the case proceeds, and an offer of time served can look like freedom. Kalief Browder was sixteen when he was arrested in the Bronx in 2010, accused of stealing a backpack. He refused to plead guilty to something he said he did not do, and he spent about three years at Rikers Island waiting for a trial, much of it in solitary confinement. The charges were eventually dropped. He died by suicide in 2015. His case is extreme, but the pressure it reveals is ordinary: for people held in jail, pleading guilty is often the fastest way out.

The checks that are supposed to exist

There are some limits on prosecutors. They are thinner than most people assume.

Courts rarely second-guess charging decisions. The doctrine of prosecutorial discretion rests on the separation of powers and on the practical idea that judges should not supervise which cases the executive branch chooses to bring. Claims of selective prosecution based on race are allowed in theory but almost impossible to win, because the Supreme Court has required evidence that similarly situated people of other races were not prosecuted, evidence that defendants usually cannot get without the discovery they are trying to obtain.

Civil lawsuits are mostly closed. In Imbler v. Pachtman in 1976, the Court held that prosecutors have absolute immunity from damage suits for actions taken as advocates, including decisions to file charges and conduct at trial. The limits of that protection were tested in the case of John Thompson, who spent eighteen years in Louisiana prisons, fourteen of them on death row, before it emerged that prosecutors in the New Orleans district attorney's office had failed to turn over blood evidence that would have helped clear him. A jury awarded him fourteen million dollars against the office for failing to train its lawyers. In Connick v. Thompson in 2011, the Supreme Court threw out the verdict, five to four.

Professional discipline is rare. State bars handle complaints against prosecutors, and studies of misconduct findings have repeatedly found that few lead to serious sanctions.

That leaves one check that the Constitution's framers did not design but that Americans built anyway: elections.

The elected prosecutor, an American oddity

In most democracies, prosecutors are career civil servants. In the United States, almost every state elects its local prosecutors, county by county. There are more than two thousand of these offices, and their holders go by many names: district attorney, state's attorney, commonwealth's attorney, county attorney.

The idea came out of the Jacksonian era's distrust of appointed officials, and in theory it makes prosecutors answerable to the communities they serve. In practice, many prosecutor races have been sleepy affairs. Incumbents frequently run without an opponent, and many voters reach that line on the ballot knowing nothing about the candidates. Campaigns were often funded by the defense bar and by police unions, and the main issue was usually who would be tougher.

Some scholars argue that prosecutors, more than any other actor, drove the growth of American prisons in the 1990s and 2000s. The law professor John Pfaff, in his book Locked In, argued that as crime fell during those years, the number of felony cases filed per arrest rose, meaning prosecutors were charging more aggressively even as there was less crime. Not every researcher accepts that account, and the full picture includes sentencing laws, policing and parole. But the basic point is hard to escape. The person who decides what to charge decides more about who goes to prison than the legislature that writes the penalties or the judge who imposes them.

A famous speech makes the same point from inside the system. In 1940, Attorney General Robert Jackson, who later served on the Supreme Court and as the chief American prosecutor at Nuremberg, told a gathering of United States attorneys that a prosecutor has more control over life, liberty and reputation than any other person in America. He warned them that the greatest danger of the office was not laziness but the temptation to pick people and then search the law books for a crime, rather than starting with a crime and looking for who committed it.

The case for prosecutorial discretion

The defenders of the current system have real arguments, and they deserve to be stated plainly.

Without plea bargaining, the courts would collapse. There are not enough judges, courtrooms, public defenders or jurors to try every case, and the delays would hurt defendants as well as victims. Plea deals often give defendants real benefits: a lower sentence, a lesser charge on their record, a quicker resolution. Victims are spared testifying. Discretion also allows mercy. A prosecutor can decline a case against a teenager who made one bad choice, or reduce charges for someone whose circumstances deserve it. A system with no discretion would be harsher, not fairer.

All of that is true, and it points to the actual problem. Discretion is not the issue. Unaccountable discretion is. The same power that lets a prosecutor show mercy lets another threaten life in prison over an eighty-eight-dollar check. The question is not whether prosecutors should have discretion but how the public can see how it is used and hold them to account for it.

What reform looks like when it starts at the charging desk

Reformers have tried several approaches. Some prosecutors publish data on their charging, plea offers and outcomes by race, so voters can see patterns. Some have adopted written policies, such as not seeking mandatory minimums in low-level drug cases or not stacking charges to force pleas. A handful of states have passed laws letting prosecutors ask courts to resentence people serving long sentences that no longer serve justice, a reform pioneered in California. Some legislatures have reduced or eliminated mandatory minimums, which shrinks the gap that gives plea threats their power.

None of this is simple. Prosecutors who promised sweeping change have sometimes faced backlash, recalls and electoral defeats, and the debate over their results is a story of its own. But understanding where power sits is the first step. A voter who skips the district attorney line on the ballot has passed up one of the most consequential choices about criminal justice they will ever get to make.

Paul Lewis Hayes did not lose his case because a jury doubted his innocence or a judge thought him dangerous. He lost because the person who held the charging power decided to use it, and the Supreme Court decided that was within the rules. The rules are not going to change on their own.

What you can do

• Learn who your district attorney is and when the office is on the ballot. The voting page has registration deadlines, voter ID rules and mail and early voting details for every state, linked to each state's election office, so you can be ready when the race comes up.
• Ask your state legislators about mandatory minimums, prosecutor-initiated resentencing and charging-data transparency laws. The representatives page finds them by address, with phone numbers, contact forms and their latest votes.
• Support public defenders and court-watching groups. The organizations directory lists legal aid and justice reform nonprofits in every state; many court-watch programs rely on volunteers who simply sit in courtrooms and record what happens.
• Keep reading on criminal justice reform for current coverage of prosecutor races, plea bargaining and sentencing changes.