The Power of Prosecutors

The policies, practices, and priorities of a DA’s office can be the difference between whether or not crime victims get access to critical services that help them rebuild their lives, people battling addiction get offered treatment rather than incarceration, young people are held accountable in a way that protects their future life opportunities, or people of color are treated fairly. DAs exercise their power in a number of ways.

Outside of Tennessee, a growing number of forward-thinking persecutors are leading the way in changing this culture and implementing new approaches. Across the U.S., these prosecutors are pioneering innovative practices that reduce incarceration and address racial disparities. They have worked to become more transparent with and responsive to the communities they serve, committing to reducing the jail and prison population in their communities; implementing things like “conviction integrity units” to affirmatively uncover and remedy wrongful convictions and unfairly punitive sentences; and more. Their successes should be supported, replicated, and expanded. It’s time for transformational prosecutors in Tennessee.

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The Power of Charging

  • Prosecutors have the power to choose which charges are filed against an individual accused of a crime.
  • When the police arrest someone, the prosecutor’s office has the power to prosecute those cases, dismiss the case altogether, or agree to dismiss charges if a person completes a specific program, such as community service or a treatment program. DAs can also propose formal diversion or a plea deal that would require court approval. DAs have significant influence and can also argue against diversion if they so choose. DAs can overcharge in order to get plea deals; they can decide if a defendant is offered diversion or not; they can set priorities on what kinds of charges they want to bring; and they can decide whether to prosecute certain crimes at all, like declining to prosecute low-level offenses.

The Power to Influence Bail and Pretrial Detention

  • DAs have the power to make bail recommendations to judges. As a result, too many people are required to post money bail and too many DAs rely on recommending high bail as a way to keep people in custody until their trial date.
  • Pretrial detention causes major disruptions for the detained individual and their family, and increases the likelihood that the individual will be convicted and receive a jail sentence. It also increases the likelihood of receiving a longer sentence.
  • There are plenty of alternatives to money bail to ensure appearance at trial. Text message and phone reminders, as well as unsecured monetary bail (in which an individual signs a contract promising to pay a cash amount if they fail to appear in court) have all been shown to be more effective tools to make sure people show up to court than money bail.

The Power to Negotiate Plea Deals

  • The prosecutor has the power to offer a plea deal to the individual charged with a crime. Often people plead guilty because there is a risk associated with going to trial that they will be convicted of the most serious offense charged and sentenced to the maximum penalty possible. A plea bargain reduces that risk. People often feel additional pressure to take a plea deal if they are kept in jail pending trial and are offered release with time served if they agree to plea. The DA has immense power to influence an individual’s decision about whether to enter into a plea deal or to take their case to trial.
  • When a defendant accepts the sentence proposed by the DA, they enter a guilty plea which the judge will typically accept. Approximately 90-95% of federal and state cases are resolved by plea.
  • Prosecutor charging decisions and plea bargain offers are rarely challenged by judges. Judges have the discretion to decide whether to accept or reject a plea agreement, however, they typically have little or no role in the negotiation process or charging decisions for plea agreements.
    • Taking a plea deal could have a significant impact on an individual’s access to housing, voting rights, temporary support via the Supplemental Nutrition Assistance Program (SNAP) and occupational and professional licenses — barriers that increase the likelihood that a returning citizen could recidivate and re-enter jail or prison.

The Power to Influence Sentencing

  • Sentencing determines the length of an individual’s period of incarceration.
  • During the sentencing phase of a trial, the DA’s recommendation heavily influences the judge as they make their decision.

The Power to Present Evidence

  • The difference between a guilty and not guilty verdict comes down to the evidence presented by the prosecutor.
  • A number of Supreme Court decisions have reaffirmed the prosecutor’s obligation to turn over exculpatory evidence — evidence that may prove a defendant’s innocence, such as a witness statement, DNA or fingerprints — to the defense during discovery. However, across the country this requirement is frequently violated.
  • Prosecutors accused of misconduct multiple times between 2010 and 2015 included Shelby County District Attorney Amy Weirich. She was identified as having the worst record for misconduct in Tennessee, including accusations of Weirich and her staff withholding evidence. She also has the worst record in Tennessee for court decisions in her cases being reversed. The Tennessee Board of Professional Responsibility reprimanded Weirich for one such case in which she was accused of hiding evidence, leading to a young woman being incarcerated for her mother’s murder for a decade until the Tennessee Supreme Court overturned her conviction.

The Power to Influence Policy

  • Prosecutors constitute a powerful lobbying influence, frequently opposing sensible bipartisan reform efforts that would reduce incarceration and create more effective, less costly alternatives to jails and prisons.
  • Prosecutors have significant political sway when legislators consider sentencing legislation such as mandatory minimums, mandatory life without parole, the use of risk assessment instruments, and more.
  • The Tennessee District Attorneys General Conference (TNDAGC) operates as both a member association and as an organizational lobbyist that takes positions on a variety of policy matters relating to the criminal legal system.
  • As such, district attorneys in Tennessee wield enormous influence over state legislators on both sides of the aisle, affecting policy debates and legislative outcomes regarding the criminal legal system.
    • Between 2015 and 2018, the TNDAGC lobbied for or against 42 bills.
    • Overall, the TDAGC tends to support more punitive bills and oppose bills that would decrease sentences or the scope of criminal law.
    • In recent years, TCADGC has opposed legislation that would have:
      • expanded expungement opportunities;
      • permitted the use of medical marijuana;
      • reduced the charge for possessing very small amounts of marijuana from a class A misdemeanor to a class C misdemeanor;
      • ended de facto juvenile life without parole, making juveniles eligible for parole after they have served 30 years instead of 51;
      • removed the enhancement penalty for drug offenses that take place more than 500 feet from schools, which are imposed even if schools are not in session and children are not around; and
      • allowed individuals to file a petition for post-conviction relief to present new evidence of their innocence whenever it becomes available.
    • Tennessee prosecutors have a strong influence at the legislature. Between 2015 and 2018, 62% of the bills they supported passed, compared to only 36% of the bills they opposed.