Mass incarceration is on the ballot

A guide to how 19 offices you may be asked to vote on can help end mass incarceration in America.

by Mike Wessler, September 11, 2024

Elected Offices

Local Offices

District Attorneys

Sheriffs

County Commissioners

Mayors and City Commissioners

City Auditors

Local Judges

Coroners

City Clerks

School Board Members

State Offices

Governors

Attorneys General

Secretaries of State

State Legislators

State Auditors

Utility Commissioners

Appellate Court Judges

Supreme Court Justices

Federal Offices

President

Members of Congress

Election Day is right around the corner. While presidential campaigns get most of the attention from the news media, many lesser-known down-ballot races can have a much more dramatic impact on criminal legal system reform in America.

For voters interested in ending mass incarceration, we’ve put together a guide to the most common offices for which they will cast their ballots this November. We also explore how those offices can make decisions to reduce the number of people behind bars, improve conditions in prisons and jails, and help turn the page on America’s failed experiment with mass incarceration.

It’s worth recognizing that there are significant differences in what an office might be called and its exact responsibilities from state to state and city to city, so readers should keep in mind that this might not be a perfect match for their area. Additionally, it would be impossible to list all of the complex and far-reaching ways some offices influence the criminal legal system. This guide focuses on the most common and consequential offices and responsibilities in this realm and is not intended to be all-encompassing. With this guide, we aimed to give people a starting point for their research to better understand the roles and powers of the offices they’ll be asked to vote for.

Readers should use this guide to evaluate their candidates for office, press them to take clear stands on how they’ll use their position to improve the criminal legal system if elected and hold them accountable for those commitments once they take office.

 

Local Offices

Most of the day-to-day interactions that people have with the criminal legal system involve local governments. Local governments are responsible for a wide swath of related activities, including policing and law enforcement, the prosecution of criminal laws, and conditions and policies at local jails.

District/County Attorneys

Because of their immense power, government prosecutors known as district attorneys (sometimes called county attorneys) loom large in any discussion about the criminal legal system and what can be done to reform it. And it is important to remember that the person who holds this office has immense discretion in how to use this power.

They oversee the vast majority of criminal cases in their jurisdiction. Not only do they determine which types of offenses to prioritize for prosecution, but in individual cases, they also determine whether to bring charges against someone and, if so, for what crime.

Additionally, while they don’t directly set bail conditions — judges generally do that — they usually recommend whether a person should be offered bail and, if so, whether they must pay money to go free before their trial. Their recommendations hold immense weight in these judicial decisions.

They also serve as gatekeepers to diversion programs. These programs allow people charged with crimes to resolve their cases without a criminal conviction and, in many cases, without incurring charges. The district/county attorney decides what those diversion programs look like, whom they are offered to, and what happens when someone completes it.

While this explanation covers the most prominent parts of the district attorney’s job, it is certainly not exhaustive. To learn more, we recommend reading Fair & Just Prosecution’s report, 21 Principles for the 21st Century Prosecutor, which goes into much greater detail.

Sheriffs

Sheriffs play many roles in the criminal legal system that can vary greatly from state to state and county to county. Generally speaking, though, their core responsibility is running the county jails, making them responsible for managing the conditions in which people are detained pretrial.¹ Importantly, in this role, they’re responsible for the health and safety of people who are in their custody, including what health services they have access to while incarcerated. Additionally, they enter into contracts with private companies that provide services, such as phone calls, commissary sales, and tablet computers. They decide what people detained in their jails are charged for these services.

Additionally, many sheriffs also conduct law enforcement activities and criminal investigations. This gives them wide latitude in determining who is arrested and for what offenses.

Finally, some sheriffs also oversee probation programs and officers. In this role, they have a huge impact on the lives of people on probation. They can prioritize the person’s successful completion of the program in a way that keeps them from being arrested or incarcerated again, or they can prioritize punishment by strictly enforcing arbitrary and often expensive conditions that set people up to fail.

County Commissioners

County commissioners² generally have two primary responsibilities when it comes to the criminal legal system.

First, they provide oversight of the county jail, including setting budgets and approving contracts for services. Notably, they are also often responsible for considering proposals for new jail construction. During debates about building a new jail or expanding an existing one, county commissioners have powerful leverage that they can and should use to ensure that prosecutors and law enforcement are doing everything they can to reduce the number of people stuck in jails unnecessarily.

Second, they allocate funding and, in some jurisdictions, provide oversight of the county sheriff’s department. This can influence the law enforcement presence in the community and the activities the department is tasked with prioritizing.

Mayors and City Commissioners

These offices are responsible for supervising the local police department. This includes determining its funding, providing some oversight of its activities, and selecting its chief. Through these choices, they determine the size, scope, and priorities of the police departments in their communities.

Additionally, they set funding levels for other community resources that can prevent law enforcement interactions in the first place. For example, they could direct funding to expand mental health services, drug treatment options, or pre-police diversion programs in their area.

City/County Auditors and Controllers

City and County Auditors do far more than just monitor the spending of agencies (although they can, in fact, do that). They also look at the overall performance of key departments. For example, they can look at how jails are administering their welfare funds, how police departments are responding to the needs of the communities, jail conditions, the administration of the county’s bail practices, how public housing and health care providers are delivering services, and much more. Through their work, auditors and controllers can act on behalf of residents of their community to provide much-needed transparency and ensure their government is properly and effectively serving them.

Local Judges (including Justices of the Peace)

Local judges play multiple roles in the criminal legal system. While they are intended to be unbiased arbiters between the prosecution and defense in criminal cases, their decisions can have a huge impact on whether a person is convicted and whether they serve time behind bars — both before and after a conviction. They preside over a person’s initial court appearance after their arrest, at which time they’ll determine whether they can be released from jail, whether they have to pay cash bail to be released, and if there are any other conditions of their release. They also oversee criminal proceedings in the courtroom when a person goes to trial. In this role, they participate in decisions around who is selected as jurors, what evidence can be admitted, how the trial is run, and determining their sentence (if convicted). Importantly, they also set conditions a person must abide by when they are on probation.

Coroners

When someone dies unexpectedly, coroners often conduct medical examinations to determine the person’s manner and cause of death. Their findings and reports are often pivotal in criminal investigations and hold immense weight in criminal trials. Coroners can help expose the truth in criminal cases. Conversely, though, their mistakes can also send people to prison for crimes they did not commit. Importantly, corners are also often responsible for investigating the deaths of incarcerated people.

City/County Clerks (sometimes known as Supervisor of Elections)

This office, which has many different names across the country, has a key interaction with the criminal legal system: jail voting. Most people in jails are still eligible to vote but are prevented from doing so by a complex set of barriers. This office can help clear those barriers. They can work with local jails to make it easier for people detained there to register to vote and cast their ballots. A growing number of places in the country have even established polling locations in jails to make it easier for incarcerated people to have their voices heard.

School Board Members

The intersection of education and incarceration is complex. In short, we know that people with lower educational attainment are more likely to be incarcerated. So, in essence, every choice school board members make can help reduce incarceration in the community in the long run.

There are additional — more direct — choices that school board members make related to the criminal legal system. The first is whether or not police have a presence in schools as school resource officers. Second, school boards also set disciplinary policies, many of which are directly linked to the “school-to-prison pipeline,” such as when a student is suspended or expelled and when law enforcement is called for disciplinary activities in the schools. Both of these choices can result in children being tangled in the criminal legal system at a young age. Finally, in some places, they also are responsible for ensuring students in the juvenile justice system have equitable access to quality education.

 

State Offices

State government looms large in the criminal legal system. Not only are state prisons the largest incarcerators in the country, locking up over 1 million people every day, but states also write and enforce the laws that most frequently result in people being locked up in the first place.

Governors

Governors lead their state’s government, so naturally, their power and responsibilities are far-reaching. However, there are several specific areas that have a particularly dramatic impact on the size, scope, and conditions of the criminal legal system in their state.

One of the most important things they do is appoint the head of their state’s Department of Corrections, which runs state prisons.³ This agency is responsible for the health and safety of people incarcerated, how those facilities operate on a day-to-day basis, and how much incarcerated people (and their families) pay for things like phone calls, commissary items, and more. It also shapes policies around the use of good time credits, parole, and compassionate release.

An underappreciated role of governors is appointing people to state boards and commissions. The people appointed to these bodies can have a huge influence on how state government runs, and their decisions often go unnoticed by the public and the media. Notably, in many states, governors appoint people to their state’s parole board, a body that determines whether people who have served time behind bars are released or not. Additionally, in states that have prison ombuds, the governor often appoints the person who serves in that position.

Similarly, governors have the power to issue pardons and commutations for people convicted of state crimes. These can result in a person being released from prison early or undoing some of the worst collateral consequences of their conviction. Unfortunately, though, governors have woefully underused this important power.

Finally, governors sometimes appoint state judges to the bench. We discuss the role of judges in other parts of this guide, but in general, they are responsible for presiding over criminal cases, including determining the sentence for people found guilty and, in some instances, determining whether laws passed by the state are unconstitutional.

Attorneys General

Attorneys General are often called the top law enforcement officer in the state, and for good reason. While the specific duties and responsibilities vary significantly from state to state, generally speaking, this office plays an oversight or coordinator role for county/district attorneys in their state, often helping to set standards for criminal prosecutions. In addition, they can investigate and prosecute some serious criminal cases on their own. If a person is convicted of a crime and appeals that conviction, this office generally argues against those appeals.

Importantly, this office also represents the state when it faces civil lawsuits. For example, if a family sued the state government over poor prison conditions, the attorney general would likely represent the state in that case.

An often overlooked responsibility of many attorneys general is enforcing their state’s public records law. Prisons, jails, and court systems routinely unfairly deny requests for public records that should legally be accessible. In many states, advocates and journalists who have had their requests denied can often ask the attorney general of their state to intervene and force the facilities to produce the records.⁴

Secretaries of State

Secretaries of State generally oversee elections in their state. In this role, they can take action to improve ballot access for people who are currently in jail (and, in a few states, for people in prison, too). A motivated secretary of state can prioritize voter registration in these facilities and proactively address problems people who are incarcerated may face when attempting to cast their ballot. Additionally, they often provide guidance to local election officials, which gives them the chance to further improve ballot access.

State Legislators

State legislators have one of the most important and often overlooked roles in the criminal legal system. It is not an exaggeration to say that the only constraints on their abilities are state and federal constitutions, money, and their imagination. Their primary responsibility is writing and passing laws. They determine what is a state crime, the punishment for those offenses, the conditions a person will face after they are released, and much more. State lawmakers have so much power, in fact, that we put out an annual report highlighting dozens of actionable steps they can take to reform the criminal legal system without making it bigger.

In addition to passing laws, state legislators are also responsible for developing a state government budget that allocates money to state prisons and many law enforcement agencies. Through this action, they can influence the size and number of prisons in their state, the conditions in those prisons, and the role of law enforcement in their communities.

Notably, state lawmakers also can serve on legislative oversight committees that review the activities of government agencies, including state prisons.

State Auditors and Comptrollers

While the exact responsibilities and titles differ significantly from state to state, state auditors and comptrollers are generally tasked with assessing how well state agencies are doing their jobs and spending money. This goes beyond simple accounting. They can look at any number of activities of their Department of Corrections or state law enforcement officials. For example, a 2020 audit by the Massachusetts State Auditor found the state’s Department of Corrections was not processing sick-call requests from incarcerated people as quickly as required and was not fulfilling its obligations to incarcerated people upon their release. Used correctly, these can be powerful offices for exposing the mistreatment of people in the criminal legal system and the mismanagement of public dollars.

Utility Commissioners

Utility Commissions are tasked with regulating the state’s utility companies, such as electric providers, phone companies, and similar businesses. While it may seem like this has little to do with prisons and jails, in some states, these officials have played a critical role in reducing phone rates behind bars. For example, changes made by the Iowa Utilities Board to jail phone rates saved the loved ones of incarcerated people roughly $1 million every year. While the Federal Communications Commission recently approved rules that will significantly reduce voice and video calling rates in prisons and jails, the work of Utilities Commissions is not done. They can still take action to address the rapidly expanding presence of tablets and other telecom services behind bars to ensure that incarcerated people are not taken advantage of.

Appellate Court Judges

After a person is convicted of a crime, they have a right to appeal their conviction. That’s where appellate court judges come in. They oversee these appeals to determine whether the trial was held in a manner that was fair and respected the constitutional rights of the person convicted of a crime. They have the power to affirm or overturn a person’s criminal conviction or sentence.

Supreme Court Justices

State supreme courts are generally considered the most powerful court in their state. If a person convicted of a crime is unsuccessful at appealing their case in front of the appellate court judge, they can ask the state supreme court to hear the case as well.

Additionally, these courts are tasked with assessing the constitutionality of laws and policies related to the criminal legal system. This can include a wide variety of issues, such as policing practices, prison and jail conditions, and whether state laws violate a person’s constitutional rights.

 

Federal Offices

The federal government’s role in mass incarceration is vast and complex. Even though the federal prison system holds only about one-quarter as many people as state prisons collectively do, the federal government is still responsible for 98 federal prisons and 142 immigration detention facilities. Also, through the Department of Justice, it oversees federal law enforcement and criminal prosecutions.⁵

President

Like governors, the ways the president can impact the criminal legal system are vast.

One of the most consequential decisions they make is who they appoint to be Attorney General of the United States. This person will oversee the Federal Department of Justice, which prosecutes all cases involving allegations of federal crimes. Similarly, the president appoints U.S. Attorneys who oversee those prosecutions. The Attorney General and U.S. Attorneys have considerable latitude on which cases to pursue, which crimes are prosecuted, and the desired punishment if a conviction is secured. Additionally, the Attorney General oversees the Bureau of Prisons (BOP), which operates all federal prisons. The BOP is responsible for a wide range of prison conditions, including the health and safety visitation policies and communication options for people incarcerated at its facilities.

Presidents are also responsible for signing (or vetoing) bills passed by Congress. And even before a bill makes it to their desk, they work with lawmakers to shape that legislation. These laws can have far-reaching effects, as we discuss below when talking about the responsibilities of members of Congress.

One of the president’s most long-lasting impacts comes through his or her appointments of federal judges, including U.S. Supreme Court Justices. In addition to hearing federal criminal cases, federal judges often also interpret laws to determine whether they violate the U.S. Constitution.

The president also appoints members to boards and commissions focused on a wide range of issues. For example, the president appoints commissioners to the Federal Communications Commission, which recently slashed calling rates in prisons and jails. The president also appoints members to the Federal Trade Commission, which oversees many consumer issues, including junk fees in prisons and jails. They also appoint members to the U.S. Sentencing Commission, which has a hand in determining the severity of sentences for people convicted of federal crimes.

Finally, presidents have the power to issue pardons and commutations for people convicted of federal crimes. Unfortunately, though, they rarely use this power. Through these acts, the president can either reduce the sentence of someone convicted of a crime or undo some of the worst consequences of that conviction.

Members of Congress

Like state legislators, the principal responsibility of members of Congress is passing laws. Through these laws, they determine what actions are considered federal crimes and the potential sentences for people convicted of those crimes. They can also pass legislation to address issues related to prisons and jails at the federal, state, and local levels of government. For example, members of Congress have brought forward a bill to end prison gerrymandering nationwide.

The other principal responsibility of members of Congress is developing and passing a budget that determines how much money is allocated to federal agencies, including the Department of Justice and the Bureau of Prisons. These budgets can have wide-ranging implications for the number of people incarcerated, the number and condition of prisons, and the availability of community-based services and health care.

Notably, members of the U.S. Senate are also responsible for considering and confirming many appointments made by the president — including the appointment of federal judges and the U.S. Attorney General. This allows them to affirm or deny whether a person has the experience, temperament, and priorities to serve in that position.

 

Making your voice heard

No single elected official built America’s broken system of mass incarceration. And no one officeholder can end it singlehandedly. Accomplishing that will require a wide focus on elected offices up and down the ballot.

This guide is not all-encompassing. America’s elections are diverse and complex, so it would be impossible to cover every office that influences the criminal legal system and every responsibility of those offices. Instead, as you prepare to head to the polls, we hope this guide helps you better understand how the offices you’ll be asked to vote for can use their power to reduce the number of people behind bars and improve conditions for those who remain incarcerated. After the election, we hope you’ll use it to hold those elected officials accountable, too.

With Election Day approaching, visit Vote.org to register to vote (or check your registration status) and make your plan to make your voice heard at the ballot box.

(Author’s note: We’d like to thank the team at Bolts Magazine for their insights as we put together their guide. Bolts is a nonprofit newsroom that covers issues related to elections and the criminal legal system.)