Prosecution for Services: How Access to Services through the Criminal Legal System Shapes Prosecutors' Decisions

• In Event: Qualitative and Legal Analysis of Prosecutorial Discretion

Abstract

Scholarship at the intersection of punishment and welfare describes how the penal system has increasingly become a distributor of social welfare to the poor in the United States. However, less is known about how this entangling of coercion and support shapes the incentives of actors working within the criminal legal system. This study uses the case of the prosecutor, an actor with enormous discretion, to reveal how a lack of treatment and welfare alternatives outside the system fosters criminalization. Data are drawn from a study on prosecutorial discretion involving six months of observations in a District Attorney’s office and over 40 interviews with prosecutors, defense attorneys, judges, and pretrial agency staff in a mid-sized midwestern county. One key finding is that prosecutor decisions about whether to charge an individual with a crime or offer a probation recommendation are sometimes based on the belief that the accused needs supportive services, a phenomenon I call “prosecution for services.” These prosecutors think of the criminal legal system as one of the only avenues for people to receive these “services.” This study reveals the consequences of a system in which social support for the poor becomes contingent on criminal justice involvement.

Author

• Chiara Packard, University of Wisconsin-Madison