Prosecutors are the gatekeepers of mass incarceration — they decide who enters the system, under what charges, and with what sentencing recommendations. What goes largely unexamined is how those decisions shift the financial burden of incarceration between county and state governments, creating perverse incentives that reward punitiveness while externalizing the cost. In most states, counties pay for jail; states pay for prison. When prosecutors push felony charges over misdemeanors and prison over probation, they transfer the cost upward while accumulating political credit for toughness. The communities that bear the downstream consequences are rarely the ones making the sentencing decisions.
The County vs. State Cost Divide
When prosecutors are discussed in the context of mass incarceration, the conversation typically focuses on specific cases, specific outcomes, or specific misconduct. What receives less attention is the structural incentive problem that John Pfaff analyzes in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (Basic Books, 2017): prosecutors’ charging decisions transfer financial costs between levels of government in ways that reward punitiveness while externalizing its consequences.
The cost structure is straightforward. County governments are responsible for jail costs — the incarceration of people held pretrial and those serving sentences typically under a year. State governments pay for prison — the incarceration of people serving longer sentences following felony convictions. The decision that moves a case from jail to prison — the decision that converts a misdemeanor into a felony, or a probation recommendation into a prison recommendation — is made by the prosecutor. And that decision shifts the full cost of incarceration from the county budget to the state.
Pfaff’s Locked In argues that prosecutors — not drug laws, mandatory minimums, or sentencing guidelines — are the primary engine of mass incarceration. The expansion of the prison population over the past several decades is largely attributable to prosecutorial charging decisions that push more cases into the felony system and more defendants into state custody. The incentive structure that produces this outcome is not accidental: prosecutors face career incentives to appear tough, face minimal financial consequences for the costs their charging decisions impose on state budgets, and face political benefits from pursuing the most punitive available option. Pfaff argues that requiring counties to bear a portion of prison costs for cases they initiate would change that calculation.
Why Prosecutors Make These Choices
Prosecutors are elected officials in most states, and they campaign on enforcement. The political economy of prosecution rewards appearing tough: successful prosecutions and high sentences are visible, quantifiable, and attributable. Alternatives — diversion programs, plea deals that result in probation, charging decisions that match offense severity rather than maximum exposure — are less politically legible as accomplishments even when they produce better outcomes for public safety and community wellbeing.
Since jail costs directly affect local budgets and can generate pushback from county commissioners and local taxpayers, pushing cases into the felony system and toward state custody creates a specific kind of political and fiscal efficiency for a county prosecutor: the credit stays local; the cost goes to the state. The expansion of the prosecutorial office and courthouse infrastructure that can accompany high case volumes may also create its own budget incentive, driving further tax burden through the appearance of necessary growth.
Barry, Cass, and Van Buren counties — small rural Michigan jurisdictions with documented punitive prosecution patterns — illustrate how this dynamic operates at a scale that is precisely small enough to escape sustained statewide reform attention. Small counties do not generate the same volume of cases as Wayne or Kent County, but their prosecution patterns, when measured against their populations, can reflect punitiveness that is more extreme than larger jurisdictions. The size that makes them fly under the radar is also the size that allows their prosecution culture to persist without the accountability infrastructure that larger jurisdictions face. Prosecutors in small rural counties are often running effectively unchallenged, with limited public scrutiny, in front of judges they know well, in communities where institutional relationships are stable and concentrated.
The Hidden Cost to Communities
Counties may appear to save money in the short term by pushing defendants into state prison rather than local jail. The long-term community costs are distributed differently and do not appear in any prosecutor’s budget line. Families are separated by the geographic distance between rural counties and state prison facilities, often hundreds of miles apart. Family members absorb phone call costs, commissary expenses, and transportation costs that can equal significant fractions of modest incomes. Reintegration becomes substantially harder when people return from distant state facilities to communities where they have been absent long enough to lose housing, employment connections, and social relationships. Prison time consistently produces worse long-term outcomes for employment, housing, and mental health — particularly for low-income communities that are already underserved by the social infrastructure that makes reentry manageable.
The people bearing these costs are not the ones who made the sentencing decisions. They are the families left behind, the employers without workers, the communities absorbing the downstream effects of choices made by elected officials whose career incentives pointed in a different direction.
Realigning Incentives
Pfaff’s central reform proposal — requiring counties to bear a portion of the state prison costs for cases initiated at the county level — directly addresses the incentive that drives the cost-shifting pattern. When a prosecutor’s charging decision has a financial consequence for the county budget, the incentive calculation changes. A felony charge that transfers cost to the state no longer produces a purely political benefit; it carries a fiscal cost that county commissioners and local taxpayers can see and respond to. The reform does not require changing any individual prosecutor’s values. It changes the incentive structure within which those values operate.
The alternative to incarceration does not materialize automatically when prosecutors stop pushing for prison. It has to exist and be funded. Local diversion programs, treatment courts, mental health diversion, and restorative justice approaches reduce reliance on incarceration only when they are adequately resourced and when prosecutors are willing to use them. Rural counties with limited infrastructure need state investment in these alternatives precisely because the cases they generate are not going to resolve themselves through services that do not exist. Without that investment, the choice between prosecution and alternative disposition is not a real choice.
Prosecutors should be required to disclose how sentencing recommendations are made, what alternatives were considered, and — at the aggregate level — how their charging patterns affect both county and state budgets and community outcomes. Public accountability for prosecutorial decision-making is currently minimal in most jurisdictions: prosecutors are elected, but the criteria by which their decisions should be evaluated are rarely made explicit, and the data that would allow evaluation is often not collected or disclosed. Transparency about the downstream costs of charging decisions — on budgets and on communities — is the precondition for democratic accountability for prosecutorial conduct.
Prosecutors should be incentivized to choose the most effective path to public safety, not the path that looks best politically while exporting its costs to state taxpayers and the communities least equipped to absorb them. The criminal legal system cannot achieve genuine fairness while the people making its most consequential decisions bear none of its most significant costs.
Sources
Rita Williams, Passing the Buck: How Rural Prosecutors Burden Counties with Jail Time and the State with Prison Sentences, Clutch Justice (June 18, 2025), https://clutchjustice.com/2025/06/18/passing-the-buck-how-rural-prosecutors-burden-counties-with-jail-time-and-the-state-with-prison-sentences/.
Williams, R. (2025, June 18). Passing the buck: How rural prosecutors burden counties with jail time and the state with prison sentences. Clutch Justice. https://clutchjustice.com/2025/06/18/passing-the-buck-how-rural-prosecutors-burden-counties-with-jail-time-and-the-state-with-prison-sentences/
Williams, Rita. “Passing the Buck: How Rural Prosecutors Burden Counties with Jail Time and the State with Prison Sentences.” Clutch Justice, 18 June 2025, clutchjustice.com/2025/06/18/passing-the-buck-how-rural-prosecutors-burden-counties-with-jail-time-and-the-state-with-prison-sentences/.
Williams, Rita. “Passing the Buck: How Rural Prosecutors Burden Counties with Jail Time and the State with Prison Sentences.” Clutch Justice, June 18, 2025. https://clutchjustice.com/2025/06/18/passing-the-buck-how-rural-prosecutors-burden-counties-with-jail-time-and-the-state-with-prison-sentences/.
