It started with a tweet, as it so often does. Last week, an editor at the National Review tweeted out a Connecticut Post story about a man who was attacked by three people in a Bridgeport Dunkin Donuts, then prosecuted and sentenced to 18 months in jail for stabbing one of his attackers. The judge apparently told the defendant during sentencing “that he understood and believed [the defendant’s] version of events, but he said he had to follow the letter of the law.”

The point of the since-deleted tweet (somehow law school made me forget the #1 lesson of blogging: screenshot, screenshot, screenshot) was that this kind of sympathetic case is why Connecticut needs a Stand Your Ground law instead of requiring a person to retreat from a situation in which they feel threatened.

The tweet stuck with me because it reminded me of how much I hate theoretical criminal law. Connecticut’s lack of Stand Your Ground is not the reason why this man (who, yes, happens to be black, glad you asked) is going to spend the next year in prison. He is in prison today because after hearing his sympathetic story, the police still arrested him, and the DA’s office still prosecuted him for felony assault. Prosecutors in this case almost certainly had tons of discretion. They could have dismissed the case in the interest of justice, or prosecuted him for a misdemeanor, but they chose to go with a felony.

Regardless of what the law is, enforcement always involves human actors and human choices. Sure, the criminal statutes in each state play a part in the framework of determining criminal behavior, but the real power is vested in the hands of the enforcers, and when the circumstances are truly unfair, they don’t have to use it.

Every day the police make decisions about what behavior warrants arrest and what doesn’t, and if their choices were always right, we wouldn’t need the court system. Prosecutors take those arrests and have discretion over which cases to pursue and which to dismiss. Then they decide what to charge each person with based on the conduct. They have massive negotiating power, and in almost every case they dangle an offer to reduce the charge in front of the defendant in exchange for a guilty plea. It happens every day in every courtroom in America. There is not necessarily a direct relationship between a person’s actions, the letter of the law, and what ends up on their criminal record.

But somehow, in a case like this, the conversation turns to how the law needs to change to avoid sending someone sympathetic to prison. It’s true that criminal laws in most states are horrifying, and things like mandatory minimums do require legislative fixes, but framing the issue of over incarceration only as a problem of law ignores the enormous power that people — often elected political actors — have over who gets locked in a cage and for how long.

Mass incarceration is not just about laws, but about daily choices that attorneys all over the country make about what kind of punishment to seek out and for whom. That punishment not only restricts the liberty of other human beings, but almost certainly inflicts physical and emotional violence on those people. To the extent we punish too harshly in this country (and in a discriminatory manner), that’s not just a law problem, but also a discretionary enforcement problem. Prosecutors can and should be held accountable for their choices.


Shane Ferro is a law student and a former professional blogger. She is (obviously) a bleeding-heart public interest kid.

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