How overzealous rural prosecutors may be derailing real criminal justice reform

For years, criminal justice reformers have worked to reduce the number of people being sent to prison. Is it working?

That depends if you live in a city or the country.

In Indiana, for example, the number of people sent to prison per year per capita grew less than 1% between 2006 and 2014. But there is huge variation between the state’s counties. In urban Marion County, home to Indianapolis, prison admissions per capita declined 38% over the same time period. Meanwhile, in rural Dearborn County, on the other side of the state, they jumped 141%.

That county-level data was highlighted in a big New York Times story published on Friday that broke down the prison admission rate for every county in the U.S. The study found that smaller, rural counties across the nation saw a jump in prison admission rates over the last decade, even as more populous urban counties sent fewer of their residents to prison.

The data suggests that criminal justice reformers should be more focused on the local prosecutors whose decisions lead to this disparity, instead of only on broader state or federal reforms.

In part, the increase in prison admissions in rural areas might be due to the heroin and opioid epidemic affecting huge swathes of the country, fueling a desire to punish drug offenders with tough sentences. But another factor is people like Aaron Negangard, the elected prosecutor for Dearborn County, which sends people to prison at one of the highest rates in the country. “I am proud of the fact that we send more people to jail than other counties,” he told the Times. “That’s how we keep it safe here.”

The roughly 2,300 local prosecutors around the country mostly have wide discretion about when and how to charge people with crimes. They can decide whether to fight for maximum sentences, let defendants plead guilty to shorter sentences, or even divert arrestees from prison to drug treatment or other programs. In Dearborn, for example, Negangard (pictured above) oversaw a plea deal in which a man who sold 15 oxycodone pills to an undercover officer got 12 years in prison. If he had been caught doing the same crime in Brooklyn or San Francisco, defense attorneys told the Times, he would likely do no prison time and instead be placed into a treatment program.

Many prosecutor districts are almost like “fiefdoms,” said Wake Forest University law professor Ronald Wright. “Statewide codes create so much territory to operate within that it’s really up to the local prosecutors to decide what conduct do we emphasize,” he told me. “Legislatures delegate a lot of those tradeoff questions to the prosecutors.”

The actions of zealous prosecutors like Negangard contribute a lot to the sky-high incarceration rates in the U.S. Fordham University law professor John Pfaff, who helped the Times with their data, found that while district attorneys charged about 1 in 3 arrestees with felonies in 1994, they charged about 2 in 3 with felonies by 2008. His research suggests that overzealous DA’s actually explain more about America’s high prison rates than long sentences for drug crimes.

Even so, many criminal justice reformers tend to pay less attention to DA’s and prosecutors, instead encouraging reforms at the federal or state level. They tend to focus on headline-winning legislative changes, which are still important but can only go so far. Negangard put it best: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

A real way to reform the criminal justice system on a broad scale would be to work with district attorneys to help them find alternatives to incarceration, and elect new DA’s to replace those who fetishize long sentences. But 95 percent of the incumbent prosecutors who run for re-election get voted back into office, according to a 2009 study by Wright.

Anecdotal evidence suggests that’s starting to change. In a primary election earlier this week, Florida Republicans voted out Jacksonville-area prosecutor Angela Corey, who had a long history of seeking tough sentences for lower-level crimes. Meanwhile, liberal groups are funding challenges to other lock-em-up district attorneys around the country, and winning in places from Chicago to rural Mississippi. “The prosecutor exercises the greatest discretion and power in the system,” Andrea Dew Steele, a political activist who trains female candidates, told Politico. “The progressive community is waking up to this.”

If criminal justice reformers want to bring about lower incarceration rates around the country, including in rural areas, they need to focus more on the district attorneys who make the decisions about when and how harshly to charge defendants. This isn’t to say that reforms at the federal and state level should be ignored—there’s a lot of important work to be done to improve prison systems around the country, create new opportunities for inmates, and reduce mandatory minimum sentences.

But neither federal or state actors are the main drivers for our huge incarceration rates. Instead, those are local prosecutors and the disparity in prison rates they create.