District Attorneys: The Most Powerful People in the Criminal Legal System
District attorneys (DAs) and their prosecutors are the most powerful actors in the criminal legal system. They play a major role in determining the way criminal cases are initiated and ultimately resolved. If a person is accused of committing a crime, it is not the police but the prosecutor who has the sole power to decide if criminal charges are pursued. DAs and their staff make critical decisions on a daily basis about who to charge; the severity and number of charges; whether to recommend bail or pretrial detention, as well as the amount of bail; who gets access to treatment and diversion programs and who doesn’t; whether a young person is charged as an adult; plea deal negotiations; sentencing recommendations; which victims get access to services and support; whether their offices are working to reduce bias and racial disparities; and more. DAs are in a position to implement criminal legal reforms to curtail jail and prison growth in Tennessee and can use their influence to advance racial justice and to create healthier communities.
The substantial power prosecutors wield throughout the judicial process is unchecked. A lack of public transparency means that prosecutors often work without any meaningful oversight. Legal doctrines such as absolute immunity – the concept that if a prosecutor is doing anything in his or her prosecutorial function, they are immune from civil liability for the exercise of their discretion – shield prosecutors from civil rights lawsuits by those wrongfully targeted. Legislatures routinely approve their annual budgets with little to no inquiry into their impact or efficiency. Citizen oversight boards for prosecutors are non-existent. This means that these elected officials have a tremendous impact on people’s lives and the lives of entire communities, without accountability to the public except every eight years when district attorneys are up for election.
Tennessee is divided into 31 judicial districts, each of which has its own elected district attorney. DAs are elected by the voters, which means they are accountable to you. In Tennessee, district attorneys are elected to 8-year terms in county-wide elections. The last election was in 2014. The next election is in 2022. In the last district attorney election, 20 of the 31 DA races were uncontested. If the state’s prosecutors reflected the state’s population, five would be black and 16 would be women. However, all of Tennessee’s DAs are white. Only four are women.[i]
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DAs and their prosecutors have unfettered discretion to determine the outcome for a person accused of a crime and have used their power, intentionally or not, to pack Tennessee’s jails and prisons.
- By the beginning of 2021, nearly 23,000 people were incarcerated by the state of Tennessee, and an additional 18,290 people were being held in local county jails.[ii]
- Tennessee’s prison population grew 12 percent between fiscal years 2009 and 2018, largely due to an increase in the length of time people spent incarcerated.[iii]
- Combining prisons, jails, immigration detention centers, and youth facilities, Tennessee had an average incarceration rate of 853 per 100,000 people in 2018, a rate 22% higher than the national rate.[iv]
- Over the past decade, the rate of admissions of females for felonies increased by about 12 percent, making Tennessee’s female incarceration rate the 11th-highest in the nation.[v]
- In fiscal year 2021, Tennessee appropriated more than $2.3 billion dollars for law, safety and corrections. [vi]
- Greater incarceration has not led to greater public safety – Tennessee has the fourth highest violent crime rate in the country.[vii] Thirty-four other states managed to reduce both their imprisonment rate and their crime rates between 2008 and 2017.[viii]
It has taken decades, billions of dollars, and thousands of laws to turn the United States into the largest incarcerator in the world. But did you know prosecutors also have the power to dismantle this machine — without changing a single law?
Tennessee taxpayers need to know that their money is being spent wisely, efficiently, and effectively to promote public safety – but right now, they don’t. Basic district attorney policies and data should be easily available to the public, but, in fact, they are quite difficult to access. With no state data collection or reporting requirements, DA offices can essentially operate in the dark, outside of public view, without any pressure to evolve and update their priorities and procedures to reflect best practices and improve outcomes for the community. For example, incarceration is often used as the primary remedy for curtailing poverty, mental health, houselessness, addiction, and other issues that are better addressed outside of the criminal legal system. DAs could implement policies and practices that provide alternatives to incarceration, reduce racial disparities in sentencing, create a pathway to mental health and addiction treatment, or allow people access to a range of benefits and programs to support their housing, employment, and education. But without transparency regarding the decisions DAs make or the policies and practices they implement, the public cannot assess whether these elected attorneys’ practices are effective or not, eroding public trust in our criminal legal system.
That is why we have launched “DAs Report to You: A Campaign for District Attorney Transparency,” a multi-faceted community education campaign to inform Tennesseans about some of the most powerful elected officials across our state. Examples of DA transparency include prosecutors collecting and making public information about their policies and practices related to screening and charging; pretrial release; alternative sentencing options such as diversion programs, drug courts, and problem-solving courts; deferred prosecution or adjudication; plea bargaining; sentencing; and related demographic information.
Our campaign began with a survey of each of the state’s district attorneys to find out just what types of information their offices collect that could be used by the public to better understand what their elected prosecutors are doing and how effective it is. Only one of the state’s 31 elected district attorneys responded. We followed this up with an open records request to every DA in the state. So far only two have responded directly, and both stated that they do not collect any of the information described above. We also received a blanket response from the state attorney general’s office stating that the district attorneys general are looking into what records they have, but no further information has been provided to date. Tennessee DAs’ failure to respond makes our case for us – it’s past time to remove the cloak of secrecy around district attorneys’ activities, and to ensure that they are acting transparently and accountably to the voters who elect them.