Sentencing Power Shifted from Judges to Prosecutors


After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties. Fewer than one in 40 felony cases now go to trial. Felony defendants who now opt for a trial routinely face the potential of higher charges that mean prison terms of 2, 5, or even 20 times as longer as if they had originally pleaded guilty.


We now have an incredible concentration of power in the hands of prosecutors.  The transfer of power to prosecutors from judges has been so profound that an important trial ritual has become somewhat of a half truth, depending on the circumstances.  The instructions judges read to the jurors, stating that they determine guilt or innocence, and the judge will determine a proper sentence are simply no longer true.  With mandatory minimums and, in many cases, sentencing guidelines applied, jurors are not informed of the complete truth.  Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome.  With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.