America’s criminal justice system is broken. Mass incarceration and systemic racism define our courts and laws. The United States holds the largest incarcerated population in the world, and an ever-growing share is being funneled into for-profit prisons. Minorities are incarcerated at highly disproportionate rates, often for minor offenses. While the most wealthy and powerful, like high-level executives, are rarely put in jail — much less prosecuted for their crimes. Incarceration holds devastating long-run economic and social consequences, for individuals, families, and communities at large.
While it is deeply and fundamentally flawed, it is not incorrigible. We must recognize that these evils are not beyond remedy; they can be challenged, improved, and, in some cases, even cured. Many people do understand this potential. Public intellectuals and law academics give speeches and write articles. Americans exercise their first amendment right in the streets. Few wrestle with this topic nearly as much as young law students, often coming to law school with the stated purpose of representing the poor and marginalized. Many, concluding it is the best way to join the struggle, become public defenders. They study the system and shape their careers to fight the injustice they find. In making this choice, however, they overlook a position with much more capacity to enact meaningful change. More so than judges, legislators, or public defenders, prosecutors can fight mass incarceration, coercive practices, and systemic racism. And all it takes is good people in the role.
Yet the function of a prosecutor has historically perpetuated the issues in our system. They principal representative of the state in every case, and often can be the face directly associated with the inequities of our system. Adam Ross, a former prosecutor turned nonprofit founder, asserted in his 2016 TedTalk how powerful prosecutors can be as agents of reform: “Every day, thousands of times a day, prosecutors around the United States wield power so great that it can bring about catastrophe as quickly as it can bring about opportunity, intervention, support and yes, even love.” So how can this role, often understood as inseparable from an inherently unjust system, produce good?
Prosecutorial discretion gives those in the role the ability to enact reform without changing a single law. Prosectors have authority and autonomy to decide who gets charged, what they’re charged with, and how hard the office pursues them. Unlike other agents of change in the criminal justice system, they can enact reform immediately, systematically, and largely independent of other centers of power. Reform does not have to wait for legislation or new funding. Reform can systematically enter each charging decision, plea offer, and sentence recommendation. Reform will happen and the police or judges can do nothing. These three intrinsic factors of immediacy, efficacy, and autonomy explain why prosecution represents the most direct path to transforming the criminal justice system from within. But it also underlies why having the right person holding that position is imperative.
Prosecutors in a district attorney’s office are called line prosecutors, the frontline attorneys who handle day-to-day cases in court. They’re the ones deciding whether to file charges, what plea offers to make, and how to handle sentencing recommendations. In essence, they’re akin to public defenders: both work directly with defendants, appear daily in court, and make real-time judgments that determine someone’s fate. But while public defenders work to mitigate harm after the state has acted, line prosecutors decide whether and how the state acts at all. This gives them a unique kind of moral and institutional leverage. Since the prosecutor wields their influence on the everyday battlefields of court rooms and warrant offices, it is especially useful to understand their work in practice.
The vast majority of cases are resolved through pleas. Here, prosecutors yield a huge advantage — it is their job to negotiate and issue pleas. If a defendant does not accept the case goes to trial, which has huge costs and is favorable to the prosecution. Yet again, this leverage can be used for good. They may limit the coercive power of this dynamic by not threatening extreme outcomes for cases that do go to trial. Offering pleas that fit the crime, instead of dramatic and inflated charges, promotes proportionality and standardization across cases. In other words, fairness. Since most cases never go to trial, the initial charge often sticks. The frequency of this outcome gives the prosecutor a readily available mechanism to combat injustice in nearly every case.
Yet even in moments when the good prosecutor decides to prosecute, they still have an advantage in humanizing the system. A single public defender can only mitigate harm for one client at a time. A single prosecutor can reshape outcomes for hundreds of defendants regardless of whether the case goes to trial. Judges look to the prosecutor’s recommendation when making their decision. Again, prosecutors may prioritize fairness and reform. Harsh recommendations lead to long, unproductive sentences, and variation in recommendations for the crime reinforce racial disparities. Prosecutors are the only ones who may recommend alternatives to incarceration. They can stop people from going to jail unnecessarily by seeking cash bail or less-than-maximum penalties.
Yet even in moments when the good prosecutor decides to prosecute, they still have an advantage in humanizing the system.
The independence prosecutors’ enjoy is just as powerful as their immediacy and efficacy. If an officer makes an unjust arrest, the prosecutor can stop the case in its entirety by simply deciding not to issue charges. The police must bring it to them. In similar logic, for a judge to make an unfair ruling, the case must first be charged by a prosecutor. They make these decisions free from external forces in the criminal justice system, and even oversight within the DA’s office. In practice, line prosecutors have substantial influence over how the law is applied and enforced. A reform-minded prosecutor can decline to charge low-level offenses, immediately reducing jail populations and racial disparities. The potential for good goes beyond net-neutral and can shift outcomes toward restorative justice. Through diversion programs (moving cases to treatment court, mediation, or community programs) or conviction integrity units (a specialized division within a prosecutor’s office dedicated to reviewing past convictions to remedy wrongful imprisonments) prosecutors can exercise their autonomy in a systemic manner.
To many young lawyers, public defense feels like the only righteous path—a way to use the law for good, to stand with the poor and the powerless. Prosecution, meanwhile, is written off as betrayal. But if all the “good ones” become defenders, why does the system still look the same?
Kamala Harris described her vision for the role in her memoir Truths We Hold: An American Journey, “The job of a progressive prosecutor is to look out for the overlooked, to speak up for those whose voices are not being heard, to see and address the causes of crime, not just their consequences, and to shine a light on the inequality and unfairness that lead to injustice. It is to recognize that not everyone needs punishment, that what many need, quite plainly, is help.” If you are truly considering the degree to which one individual actor can produce meaningful change within the system, become a prosecutor, not a public defender.
Before the prison and after the arrest, there exists an inflection point: the prosecutor’s desk. Here, decisions can redirect justice before it becomes punishment. Go down to the prosecutor’s office and you will find hard-working men and women looking to make their community safer. They are unsung and tired, but they are making a difference. They litigate on behalf of the community, of all people, and uphold our standards of public safety. It is their prerogative to give second chances. All it takes is the right person.
Julius Perez ‘27 studies in the College of Arts & Sciences. He can be reached at j.j.perez@wustl.edu.