Case filing numbers and the prosecutor’s power to reduce mass incarceration

Crime rates and arrest numbers in Pima County keep falling, but the number of criminal cases that the Pima County Attorney files against our residents continues to explode. In 2015 the Pima County Superior Court published a table detailing the number of criminal cases filed in that court since fiscal year 1990/1991. More cases filed inexorably means more people go to prison, and more Pima County residents get saddled with life-long criminal records (there is no provision in Arizona law that allows for criminal convictions to be expunged).

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This disturbing trend of increasing case filings at a time of decreasing crime and arrest rates provides evidence that much of our state and country’s mass incarceration problem can be attributed to our elected prosecutors. This theory has been supported and advanced by many scholars, including Fordham University law professor John Pfaff. Professor Pfaff has found that between 1991 and 2010, crime steadily declined yet prison populations kept increasing. According to his research,

“What appears to happen during this time—the years I look at are 1994 to 2008, just based on the data that’s available—is that the probability that a district attorney files a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.”

We know that Professor Pfaff’s thesis has been proven true in Pima County at least, and that the numbers collected by the Superior Court prove that, over the last 25 years, the Pima County Attorney has become incredibly aggressive in how they file criminal charges. But what kinds of charges have they been filing? Again, we can turn to the Superior Court’s own numbers for the answer.

For 11 out of the last 15 fiscal years, the highest percentage of criminal cases that the Pima County Attorney has filed in Pima County Superior Court have been drug cases.

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These figures stand in stark contrast to the filing trends of the 1990s, when drug cases were the highest percentage of criminal cases that the Pima County Attorney filed in only 1 out of 7 fiscal years.

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The Pima County Attorney’s laser-like focus on aggressively waging the war on drugs in the form of ever-increasing criminal case filings has directly contributed to Arizona’s mass incarceration crisis. More people have been locked away in Arizona prisons for drug offenses than for any other crime every single month in 2011, 2012, 2013, 2014, 2015, and 2016.

So, what do we do? How do we process this information, and use it to begin to end mass incarceration once and for all? Professor Pfaff is very clear on what the answer is.

“[T]he person we really need to target now—whose behavior we need to regulate—is the district attorney, and the district attorney is a very politically independent figure. He’s directly elected, and he’s directly elected at the county level. So there’s no big centralized fix. You can’t necessarily go to Washington and say, ‘Here’s the law that’s going to control what the DAs do,’ because they don’t have to listen to the federal government at all. So you have to figure out how to go county by county and either elect DAs who have less punitive attitudes, or you can try to sort of change the incentives DAs face at the state level.”