Prosecutors’ charging discretion functioned as hidden sentencing power in the drug war.

Evidence

Another often overlooked factor producing the rapidly accelerating number of drug prisoners and the pronounced racial disparities in drug sentencing before the mid-2000s is the enhanced power tacitly granted to prosecutors. As part of the drug war, maximum sentences for drug offenses were stiffened and mandatory minimum terms of imprisonment were required for particular drug offenses but not other—substantively similar drug offenses. For example, a conviction for selling more than 100 grams of cocaine may require a long, mandatory term of imprisonment but selling just less than 100 grams of cocaine has no such requirement. Thus, prosecutors’ decision to pursue a sales conviction above a quantity threshold is tantamount to a sentencing decision involving years of additional imprisonment. The presence of these draconian punishments enhanced the power granted to prosecutors. Prosecutors can and did use their discretion to pursue convictions associated with harsh punishments to induce offenders to plead guilty to lesser charges of the prosecutors’ choosing. Further, the War on Drugs was preceded by the structured sentencing movement that closely tied sentences to the conviction charge and defendant’s prior criminal history (see, for example, Tonry, 1996). These features allowed prosecutors to select sentences they deemed appropriate by simply picking charges out of the many typically available to prosecutors associated with the desired sentence. Pfaff (2017) empirically demonstrated that, in the period of rapid expansion in the number of prisoners, prosecutors did in fact employ their enhanced discretion in a more punitive fashion. In particular, a higher percentage of cases were charged and convicted as felonies instead of misdemeanors, and the increased number of prosecutors hired as part of the drug war and broader tough on crime movement led to more criminal cases being filed and ultimately more felony convictions. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 1069

Categorization

• XREF: Directly extends the sentencing-discretion and legal-institutional mechanisms relevant to the reader’s bias-in-law research, complementing the extralegal contracting and discretion materials from earlier volumes.
• QUESTION: Worth chasing the Pfaff (2017) data — does the increased felony-vs-misdemeanor charging rate hold up when controlling for drug type or prior record?
• corroborated: 2 independent passages support this claim — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 1069