December 20, 2008
"Rewarding Prosecutors for Performance"
The title of this post is the title of this new article appearing on SSRN from Professor Stephanos Bibas (who has another recent piece on regulating prosecutors that is also a must-read). Here is the abstract of this article:
Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. At best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance.
This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better. Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work.
First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward. Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete. Prosecutors' multiple constituencies and goals require subtler measures. A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does. This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies.
The next step is to devise incentives to encourage success on these metrics. Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed. A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success. More radical solutions could range from hourly rates to performance-based bonuses to contingency fees. While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying.
December 20, 2008 at 08:45 AM | Permalink
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At first blush, it seems to me that Professor Bibas has posed a scenario which is both unethical and a violation of a criminal defendant's right to due process.
Defense lawyers, of which I am one, are prohibited by the ethics rules to charge a fee which is contingent on success. The rationale is we should not have a financial stake in the outcome of a trial. Seems to me the same should hold true for prosecutors. Any sort of correlation between pay and performance would necessarily mean that a prosecutor obtains a financial stake in his or her cases.
Second, a defendant, in my opinion, has a due process right not to have the prosecutor in his case with a conflict of interest, or a stake in the outcome. If a case being resolved one way versus another would have a potential impact on the prosecutor's pay, the DA has an inherent conflict of interest in handling the case.
I am currently challenging on due process grounds the practice in North Carolina of DA's offices receiving grants of money to cover office overhead and salaries in the context of prosecuting habitual felon cases. Being an habitual felon is a sentencing status which is , I think unconstitutionally, within the discretion of the DA to pursue. If a DA receives a grant to prosecute someone as an habitual felon rather than not as an habitual felon, there will naturally be pressure to charge more people simply to justify the receipt of the grant.
Professor Bibas, I appreciate the concern to encourage better prosecutors to stay in the business, but I don't think this proposal can pass ethical or constitutional muster.
Posted by: | Dec 20, 2008 11:59:36 AM
We have already seen what the DA is willing to do when it comes to political gain for prosecuting people (Duke Lacrosse case is a prime example).
Posted by: Mark | Dec 20, 2008 2:51:34 PM
Now there's a story I'd like to see.
The Business of Prosecution.
Posted by: babalu | Dec 23, 2008 12:43:39 AM