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Jed Shugerman
@jedshug
, 8 tweets, 4 min read Read on Twitter
In today’s @nytimesbooks, @DavidLat reviews @emilybazelon's important _Charged_ on prosecutors' upward political ambitions driving mass incarceration. They generously cite work by @JohnFPfaff (Locked In) and me. Here's a short thread w/ more detail. 1/ nytimes.com/2019/04/08/boo…
2/ In _Locked In_, @JohnFPfaff uses thorough research and rigorous quantitative methods to challenge conventional wisdom. He shows the chief cause of mass incarceration is the sharply increasing rates of prosecutors turning arrests into criminal charges (& then guilty pleas).
3/ @JohnFPfaff shows over the past generation, the ratio of prosecutions-to-arrests has roughly doubled, while arrests haven’t increased significantly.
That punitive turn in prosecutorial discretion drives mass incarceration far more than any other factor.
Why did that happen?...
4/ States incarcerate far more people than the feds do. And state prosecutors are popularly elected. One might wonder if prosecutors became more punitive because their races started getting tighter, but that’s not what happened.
See @ProfSchleich’s research cited in _Charged_.
5/ The dynamic is probably more about the amitious state prosecutor who wants a tough-on-crime record to run on for higher office. I'm working on a book "The Rise of the Prosecutor Politician" documenting this change over the 20th century:
shugerblog.com/2017/07/07/the…
6/ Basic timeline:
Prosecutors in 19th C.: marginal office low in prestige & power. Just a minor patronage job.
1900-1920s: ambitious politicians serve a term or two as prosecutors and then move up. Not a major part of their political bio...
Major change is in 1940s.
7/ Key stories in my book: Two of the most important prosecutors of the 20th C. ran on the same ticket in 1948...
NYC’s Thomas Dewey...
And California’s racist prosecutor who built and ran on the Japanese internment...
California’s Earl Warren.
8/ Some of the best contemporary research is by @CBHessick (UNC, Prosecutors and Politics Project) and @MichaelLMorse (Yale JD/Harvard PhD). Follow their recent database on SSRN.
law.unc.edu/centers/ppp/
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More from @jedshug see all

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Jed Shugerman
@jedshug
This is criminal. Soon after July 22 WikiLeaks release, Trump told Gates ”more releases of damaging information would be coming.” Put it in context of June Trump Tower meeting w/Russian spy (coinciding w/Trump speech on big Hillary news), and July 27 “Russia if you’re listening.”
2/ On the one hand, I understand why SCO did not declare this criminal in its report. Its standard was proof "beyond a reasonable doubt." But I think it surpasses the prepoderance/probable cause threshold, all taken together, for a number of crimes...
3/ But I understand the problem of reasonable doubt here. Did Trump know from Assange’s public bragging? Or from inside info from Roger Stone? Is that redacted here?
And why is this buried in Vol 2 on obstruction, in the background section? Not in Vol 1 on Russia contact?
Read 11 tweets
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Jed Shugerman
@jedshug
One of my key questions: What standard of evidence/burden of proof did Mueller use for establishing facts as crimes?
The Mueller Report refers to the burden "beyond a reasonable doubt" 10 times, some about whether to charge Russian contacts as crimes. That's very important...
2/ Several of those references are in the charging conclusions, e.g., about whether to charge the participants in the June 2016 Trump Tower meeting with a felony or to charge perjury... See Vol 1, p. 180s-190.
So when Mueller Report says they declined to charge X as a crime...
3/ ... SCO regularly used the standard "beyond a reasonable doubt" for its legal conclusions.
So when SCO concluded that it could not establish conspiracy with Russian govt, it seems likely its standard was generally proof "beyond a reasonable doubt."
Read 4 tweets
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Jed Shugerman
@jedshug
Barr is utterly wrong about obstruction law.
"Sincerity" is obviously no defense.
1. One can obstruct justice even if one "sincerely" thinks one is innocent.
2. Trump is an unindicted co-conspirator in a felony campaign violation in fall 2016. Insincere and not innocent.
3. The President's own lawyers conceded to Mueller that Trump encouraged his son to give a false statement - a legal strategy. That was obstruction of justice to cover-up the political embarrassment (and potential crime) of the June Trump Tower meeting:
slate.com/news-and-polit…
4. I want to address a critique below. Here's the use of "sincere":
"The President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks."
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1/
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Using this quote tweet to organize a thread about what I'm analyzing / finding in this (incredible) data set. Using @correctionsproj's #DecommercializeJustice
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@JohnFPfaff
Prosecutors have been the main engine of mass incarceration and mass punishment—and can be the engine of reform as well.

Watch the #PowerOfProsecutors from @BklynDefender and @ACLU: aclu.org/issues/mass-in…
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We are the ONLY country in the world to elect prosecutors, yet most voters have NO idea what prosecutors do.
I’ve heard prosecutors talk about being asked why they defend criminals, and public defenders say that they’ve been criticized for charging mandatory minimums.

Voters truly have almost no idea how the system really works.
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@Politick_Rick
Actually, you can still own a machine gun in the U.S. It's highly regulated, but very possible. There are many of them out there. --> thefederalist.com/2017/10/02/act…
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