This chapter examines the phenomenon of private criminal settlements, in which the alleged criminal gives the victim of the crime some consideration in exchange for keeping the incident out of the public criminal justice system. These agreements may occur between two private individuals who have (and wish to maintain) a preexisting relationship, such as when the victim and the perpetrator are family members. They may involve a corporate client of a private police officer who decides that referring the case to the public criminal justice system is too expensive and time consuming. The witness may not even be the victim of the crime; the witness could be a third party who either accidentally discovered evidence of the crime or actively sought the information in order to extract a payment from the perpetrator. The chapter sets out the motivations that lead individuals to enter these agreements and argues that these agreements offer benefits to society that outweight their costs. It also compares these agreements to public plea bargains, comparing the arguments for and against plea bargains with the arguments for and against private criminal settlements.

Sentencing is the next critical step after arrest and conviction. This chapter turns to the types of sentences that judges hand down and, with the next chapter, sketches the important role that judges play in Mass Incarceration. It shows that during the era of Mass Incarceration, judges sent more people to prison than they had in previous eras and for longer periods.

After making an arrest, a police officer typically refers the matter to the local prosecutor’s office. Once presented with a case, that office decides whether to charge the defendant with a crime and, if so, which crime(s). Even if prosecutors initially file a charge, they can still dismiss the case later on. If prosecutors do not dismiss the case, they can seek an informal resolution (often called “diversion”), negotiate a plea bargain on behalf of the government, or take the case to trial. These decisions about which cases to prosecute, and how, are important contributors to the incarceration rate. As this chapter explains, over the era of Mass Incarceration, prosecutors’ primary contribution was to follow the lead of police and legislators. Prosecutors applied the new tools enacted by legislators leading to more severe punishments for crimes generally. And, perhaps most importantly, they uncritically accepted the new mix of arrests forwarded to them by police, flooding the courts with a higher proportion of cases that were easy to prove and punish.