March 22, 2010
Interesting new paper on prosecutorial discretion in "easy" casesThanks to SSRN here, I see that Josh Bowers has a very interesting looking new paper concerning prosecutorial discretion. The piece is titled "Commonsense Discretion," ans here is its abstract:
Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities.
In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I provide help to show.
March 22, 2010 at 09:28 PM | Permalink
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"Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion."
I suspected that the author, Prof. Bowers, had zero experience as a prosecutor even while he expands at length on prosecutorial discretion. And sure enough: His resume includes a few years at a "boutique" white collar defense firm and three years in a PD's office.
Notwithstanding the apparent bias and utter lack of experience in the business he's disecting, I don't think it's too much to ask that a UVA law professor, no less, realize that the reason prosecutors have almost unfettered charging discretion is that the Constitution gives it to them. Charging is exclusively an executive branch function, and prosecutors are in the executive branch. It has nothing to do with the "conventional wisdom" about who can best evaluate Factor A or Factor B.
Posted by: Bill Otis | Mar 22, 2010 10:18:08 PM
Bill: are federal prosecutors at will employees? If a political appointee fires one, is there civil service protection for the pension and other privileges?
What were the real world criteria for federal prosecution?
In the case of Martha Stewart, there was a small infraction, expensive prosecution. However, the prosecutor did get his name in the paper. What would have been the official criteria used in that case?
Posted by: Supremacy Claus | Mar 23, 2010 6:56:41 AM
I can't speak for prosecutors as a whole, but for the brief period in which I tried misdemeanors (which would clearly fall under the "petty crime" context), I cut a huge number of breaks based upon "equitable" considerations--including, in one case, dropping a DV to a minor misdemeanor, despite that a monkey could have gotten the DV conviction (and I still believe that was the right thing to do based upon the circumstances of the case). My only hard-and-fast rule was that anyone charged with theft had to plead to theft, no exceptions--I never knocked those down to disorderly conduct.
Even with my rule, I don't think that I, as the author laments, engaged in "absolute enforcement of expansive code law." And at least of the state prosecutors I've known, they did not either.
Posted by: Res ipsa | Mar 23, 2010 10:18:52 AM
Bill, "Prosecutors are in the executive branch."
As Justice Kennedy is sensitive to, in the era of mandatory minimum sentences prosecutors are now also members of the judicial branch, in that they can quite often dictate sentence.
In states with a grid of mandatory minimums, prosecutors can tie a judge's hands about what the sentence will be, subject only to eighth amendment challenges which never prevail.
A bit of local lore is the comment by the judge to the clerk before court opened. The judge had left his copy of the mandatory minimum sentencing grid in his car. The judge leaned over and told the clerk, "excuse me, I need to run downstairs. I left the judge in my car."
Posted by: bruce cunningham | Mar 23, 2010 11:05:41 AM
Bruce. I find the claim that prosecutors are now part of the judicial branch rather dumbfounding. Under the criterion you mentioned prosecutors become members of the judicial branch by charging *anything*. If the prosecutor never charged anything there would never be a criminal case of the judicial branch to decide.
As for the article at hand, I agree with Bill that it is a load of tripe that continues the academy's rabid attack on democracy. Prosecutors are considered to be the best at equability because they are *representatives of the people*. If they are not doing a good job the the voters can kick them out. That is the only necessary check.
Posted by: Daniel | Mar 23, 2010 11:14:28 AM
The point of my comment was limited. It was only to refute the thoroughly incorrect notion that prosecutors have charging power because the "conventional wisdom" is that they are best at evaluating the various factors that go into the charging decision.
They have charging power because the executive branch has charging power. It has zero to do with conventional wisdom.
My standard was that the government should charge the offense that most accurately describes the defendant's conduct. I didn't, and don't, approve of puffing the charge thus determined in order to create bargaining power, nor of subtracting from the charge in order, for sentimental reasons or reasons of personal preference, to ignore behavior the defendant undertook.
If he was dealing X amount of meth, I was not going to reduce it in the indictment (called "swallowing the gun") to avoid a mandatory minimum. I did not establish mandatory minimums. Congress did that. I viewed it as inconsistent with my place in the system to manipulate charges up or down because I liked, or did not like, what Congress had done.
Posted by: Bill Otis | Mar 23, 2010 11:33:19 AM
Res ipsa --
As I was saying to bruce, my standard was to bring the charge that most accurately described the defendant's conduct.
Whether the same standard would apply across the board to misdemeanor cases is a different question. I spent my entire career with the feds, and I handled only felony cases. The stakes for my client -- the public -- tend to be higher in cases of that sort.
Posted by: Bill Otis | Mar 23, 2010 11:40:29 AM
Yuck. Academic retread nonsense. Law professor efforts like this -- unlike Prof. B.'s work -- are often irrelevant.
Posted by: Anon | Mar 23, 2010 12:15:52 PM
Bruce is right. So is Prof. Bowers.
For all but a smattering of citizens who encounter the federal system (upwards of 96 of every 100), prosecutors run the show as the embodiment of both executive and judicial branches.
The fate of the accused (the charges they face, the determination of guilt and subsequent punishment) is controlled by prosecutors armed to the teeth with mandatory minimums and harsh sentencing guidelines.
Judges mostly add and subtract variances.
Those rare defendants who insist on exercising trial rights typically are ground into dust (through stacking and enhancements and other institutional expressions of annoyance with the inconvenience of trials) as an additional show of brute power.
The scary upshot? In the hands of some prosecutors, MMs and unduly punitive guidelines have emerged as the most effective means of coercing confessions since rubber-hose and phonebook beatings in interrogation rooms of an earlier era.
BTW: though it probably falls under the heading of "legal reasons," a fourth discretion category could be added for cases dropped because they were thinly veiled bluffs from the start…not worth jeopardizing the old W-L record.
Posted by: John K | Mar 23, 2010 5:55:32 PM
The problem with your argument is that it is not the one that Professor Bowers is making. He's not making a de facto case against prosecutor discretion but a theoretical one.
I actually agree that some of the situations you identify are problems. But I don't think that prosecutor discretion is to blame for the creation of those problems. If that bath water is poisoned you don't solve that problem by throwing out the sick baby.
Posted by: Daniel | Mar 23, 2010 7:03:12 PM
"In states with a grid of mandatory minimums, prosecutors can tie a judge's hands about what the sentence will be, subject only to eighth amendment challenges which never prevail."
I know a bit of a mean spirited, dimwitted woman going to law school to be a prosecutor, and thinking about her having that kind of power is quite scary.
Posted by: Teresa | Mar 23, 2010 7:26:03 PM
"The scary upshot? In the hands of some prosecutors, MMs and unduly punitive guidelines have emerged as the most effective means of coercing confessions since rubber-hose and phonebook beatings in interrogation rooms of an earlier era."
Can you please cite one case in which a Defendant was coerced by a threat of a mandatory minimunm. Police wouldn't have the power to agree to reduce a charge, anyway. And, anyone that believes that a cop can reduce a charge probably needs to be in jail anyway. Society is better off with the kind of people that talk to cops staying in jail. They are just too stupid to be free.
Posted by: s.cotus | Mar 24, 2010 12:09:30 PM
I didn't note that anyone said that police have the power to reduce charges. Clearly prosecutors do.
Posted by: beth | Mar 24, 2010 12:25:25 PM
The harsher the potential sentence, the greater the defendant's incentive NOT to confess and NOT to plead. Indeed, if you're facing really bad news at sentencing, you'd do everything in your power not to be convicted at all.
Once again we see the insistence from the Excuse Factory that the real reason people plead is that they're blackjacked into it by thuggish prosecutors who've made up the evidence and intimidate the judges.
Anyone who has actually practiced knows what a load this is. The charges reflect the evidence of the defendant's behavior. Defendants plead to them because they know they'll get cooked by the facts, and because they'll probably get a lower sentence if they can argue that they've accepted responsibility (whether or not they've actually accepted it).
That's what actually goes on. But it doesn't fit the Excuse Factory meme, so all we see are outlier cases. The vast bulk of how the system operates gets treated as non-existent.
Posted by: Bill Otis | Mar 24, 2010 1:18:44 PM
s.cotus...My simile might have confused things somewhat, but we're talking about prosecutors, not cops. I only likened what some prosecutors do to beating confessions out of prisoners to illustrate the sinister effectiveness of the modern prosecutor's arsenal.
An example? How about a mortgage broker who was dragged through mud in the media and plausibly threatened with 30 years in prison. He ultimately signed an agreement and ended up doing three months home detention.
That's powerful leverage.
Never mind that the broker didn't believe he'd done anything wrong. Basically he was convicted for following doc-prep instructions given to him by employees of his purported victim (a lending company). And his lawyer had told him what the lending company officials wanted him to do was OK.
When the broker declined a plea deal initially, prosecutors threatened to hit him with a 100 counts of fraud (for using a fax to send docs) and money laundering (depositing his commission checks in his bank account).
Prosecutors rejected the broker's defense-of-counsel argument, indicating (in the media and in negotiations) they intended to prosecute the broker's attorney, too; They never subsequently did so, however.
Yet again, Bill, if you're talking about real crimes (murder, robbery, rape, etc.) you're right. But the vague, sweeping derivative crimes prosecutors love to use are another story.
Posted by: John K | Mar 24, 2010 4:00:12 PM
Thanks for the real-world tie-in John K. I've always believed that lawyers will use every tool available to win. The manipulation of federal statutes to fit a particular defendant is an all-too-common tactic of federal prosecutors--whom I believe have the same duty to "see that justice is done"--rather than merely pad their conviction records through the use of the overpowering reach of the government--as do state prosecutors. The current "lawn order" climate where everything goes--even the Constitution--to see that "those people" get convicted will swing like a pendulum the other way; if it's not too late.
Posted by: Mark # 1 | Mar 24, 2010 10:02:32 PM
The argument in the article may be theoretically sound, but I doubt it empirically.
My impression is that prosecutors routinely press for maximum sentences in serious cases, but often exercise considerably mercy in petty offense cases.
Usually, defendants seem to get fairly long streak of leniency (perhaps a counterproductive one) for a number of offenses, and then eventually, a prosecutor decides that enough is enough and throw the book of the defendant who has grown accustomed to getting leniency.
Posted by: ohwilleke | Mar 24, 2010 10:14:05 PM