Three actors determine daily incarceration rates: the police, prosecutors and judges. The power of each has increased since 1982, says The Nation. They decide how often, and for what types of activities, people are arrested; how those arrests are turned into charges and convictions in a court of law; and how long the prison sentence is for each conviction. The interactions between these three groups have given us what the National Research Council calls a “historically unprecedented and internationally unique” explosion in incarcerations since the 1980s. Under the “war on drugs,” aggressive policing drove up the percentage of those in state prisons for drug offenses from 6.4 percent in 1980 to 22 percent in 1990. The media pay more attention to cops and judges, but mandatory minimum prison terms and “three strikes” laws transfer significant power to prosecutors, because so much depends on the initial charges filed.
According to Fordham law Prof. John Pfaff, the rate at which prosecutors chose to pursue heavy felony charges increased dramatically in the 1990s, leading to more incarcerations. Recent high-profile cases like those of Marissa Alexander, Aaron Swartz and Cecily McMillan show prosecutors pressing the harshest charges and requesting long prison sentences. Prosecutors, as county-level employees, are in the unique position to gain the electoral upside of looking “tough on crime” while passing off the costs of incarceration to the state. Many seek to make the incarceration system more “fair.” As Naomi Murakawa argues in her new book The First Civil Right, says The Nation, “it's precisely this response that feeds an unjust system resources and lends it legitimacy. Many of the initial sentencing acts were meant to provide fair, predictable guidelines, but prosecutors took advantage of them instead to rapidly escalate incarcerations.”