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March 25, 2011

Should prosecutors be offered bonuses for conducting trials and getting convictions?

The question in the title of this post is prompted by this fascinating article from the Denver Post headlined "DA Chambers offers bonuses for prosecutors who hit conviction targets."  Here are the details:

Eighteenth Judicial District Attorney Carol Chambers has created an unusual incentive for her felony prosecutors, paying them bonuses if they achieve a predetermined standard for conviction rates at trial.  The threshold for an assistant district attorney to earn the average $1,100 reward: Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction.  Plea bargains or mistrials don't count.

Chambers, whose office handles prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, said she set up the standard to encourage her team to meet minimum requirements in line with statistics in comparable jurisdictions.  The bonus pool, which comes from an office surplus, and the use of standards to determine who gets part of it are similar to incentive compensation used in private industries.

"It is hard to find performance standards by which to measure trial attorneys," Chambers wrote in response to questions submitted by e-mail.  "This is the standard I think best meets the need to have a performance standard that attorneys know and can be aware of and that does not in any way encourage any outcome in any specific case."

But other Colorado district attorneys say they neither typically award bonuses nor tie performance evaluations to a conviction goal.  And public defenders said they worry that a prosecutor just shy of the mark might be tempted to drive a harder bargain to force a case to trial to gain the bonus rather than in the interest of justice.

Chambers used the criteria for the first time in 2010 and defended it in a Dec. 7 e-mail to her staff.  "To reply to some of the emails I have received: this is a trial office. I don't think that comes as a surprise to anyone," Chambers wrote. "If you are doing the job, you are going to necessarily go to trial.  We plea bargain most of our cases so that we can try the others."  She said in the interview that attorneys assigned to more complicated or lengthy cases were exempt from the requirement and that the e-mails show she granted four exceptions for people who pitched in in other ways.

Her 18th Judicial District staff members won felony convictions in 69 percent of their trials last year, according to data from the State Court Administrator's Office. That's a few points behind Jefferson and Boulder counties, and on par with Denver and Adams counties, though none have taken similar steps.

Denver District Attorney Mitch Morrissey said he's seen plenty of cases where hard work didn't pay off in the jury box and added that he'd be concerned about unintended consequences of a rule like Chambers'.  "I would worry that if something is tied to a conviction rate, a deputy wouldn't try a hard case that required a trial.  We want people trying cases that need to be tried," Morrissey said.  "If they don't win, they don't win."

Several officials from other jurisdictions said that a deputy district attorney's job is far too complicated to boil down to a conviction rate.  Boulder County District Attorney Stan Garnett looks at attorneys' ethical standards, how they juggle their dockets and move cases along, their relationships with local law enforcement, and whether they take cases to trial.  But he hasn't set a quota.

"I want my department in trial as much as possible, but I want them focused on doing the right thing on their cases," Garnett said.  "I don't want them distracted by some kind of bonus or award." Garnett pointed to the same American Bar Association directive for prosecutors as State Public Defender Doug Wilson did.  In essence: Seek justice, not merely conviction.

"If you're to seek justice and yet your pay is based on the number of cases you take to trial or your conviction rate, then it clouds your discretion," Wilson said. "They have an incentive not to make a reasonable disposition if they need one more trial or another conviction in order to get a bonus."

Chambers said she carefully set the standard low enough so that prosecutors aren't cherry-picking easy cases from their 150 to 175 cases a year and high enough to demonstrate that they have certain trial skills and good judgment. In Chambers' view, most, if not all, of her assistants are likely to have at least five cases a year where justice can't be achieved through a plea agreement and that end up at trial.  "If a prosecutor does not have five cases ... that are just to take to trial, then that prosecutor has an ethical obligation not to try those cases and do justice," Chambers wrote. "I would expect that prosecutor to ask for an exemption ... and I would grant it."

March 25, 2011 at 08:54 AM | Permalink

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What happens when evidence comes out that would normally induce a prosecutor to restructure the case, perhaps dismiss the state's charge? Remember, the goal of a prosecutor is to ensure JUSTICE is served, even if that justice favors the defendant's position. A bonus situation would give a huge financial incentive for a prosecutor to ignore new evidence that comes into his/her purview. This is very troubling, frankly.

Posted by: Eric Knight | Mar 25, 2011 9:43:31 AM

I see no problem with offering bonuses for taking a case to trial rather than entering a plea bargain. As some defense lawyers here have complained, correctly in my view, bargains are taking over the system. Under Santobello, they are permissible, and under budget constraints necessary, but they are unsatisfactory, as almost all compromises are. They are also not the method designated by the Framers for resolving felony charges. The system needs to swing the balance back more toward trials, and this is one way to do it.

Offering bonuses for convictions is another matter. In addtion to creating possibly perverse incentives, it just doesn't make any sense internally: The best people in the office are assigned to hardest cases, and the hardest cases are those that, by definition, pose the greatest likelihood of acquittal or mistrial. Thus, the bonus system as described in the article would probably wind up rewarding the prosecutors with lesser talent and energy.

Posted by: Bill Otis | Mar 25, 2011 10:09:14 AM

"Participate in at least five trials during the year, with 70 percent of them ending in a felony conviction."

What's 70 percent of five trials? And if you're DA is 6 for 9 at Xmas, you ain't getting a deal. Of course if she's 7 for ten, you'll get a misdemeanor, or at least an adjournment.

Posted by: Matt | Mar 25, 2011 10:19:58 AM

Look, it is only troubling if you assume that there are prosecutors out there who would put their bonus above their ethical obligations. There are such prosecutors you say and I agree, surely there are some like that. But not having such an incentive system does not solve the problem. We would still have prosecutors who would not ethically do their job without the bonus system and yet they are still handling cases. In other words different mechanisms need to be in place to control for errant prosecutors.

I would note to Eric Knight that a case so bad that the prosecutor is thinking of dismissing is not the one they are going to take to trial if a guilty verdict is required for the bonus. Of course I will acknowledge that there are incentives (with or without the bonus frankly) to try a tough charge that is coupled with a solid count.

This incentive system is actually designed to get prosecutors to do their job which is to try cases. This is a skill for most that must be practiced so that when the tough case comes along the guilty defendant knows his chances are not improved because of a lazy, out of practice prosecutor. Additionally, the right to a jury trial is the defendant's constitutional right to be secure in the notion that the State cannot take away liberty without proof beyond a reasonable doubt before a jury. More jury trials are a good thing for defendants unless you believe that a defendant has a right to a plea bargain (they do not) or should get less time than the legislature requires for the offense in exchange for a guilty plea. Notions of justice are nifty except what is happening is that many defendants are using the cost of trial to the state and trauma to the victim in testifying to get less time. Is that justice?

Posted by: David | Mar 25, 2011 10:21:56 AM

Great! Now yet another incentive to cheat.

Posted by: defense attorney | Mar 25, 2011 10:43:18 AM

Clearly unethical.

Posted by: lawyer | Mar 25, 2011 11:02:06 AM

I have litigated this issue in the context of a due process violation for a DA whose salary is paid with a grant obtained to prosecute habitual felons. In NC the decision to prosecute someone under the three strike law is discretionary. (I think that is wrong but that's another issue) My argument is that if prosecutors indict more people as habitual felons because they need a few more prosecutions that quarter to satisfy some grant administrator, it violates due process and it is a conflict of interest because it gives a prosecutor a stake in a case.

The court of appeals ruled against me not on the merits of the argument but said I couldn't prove that my particular client's case was prosecuted under the habitual felon law because of the existence of the grant funds which paid the prosecutors salary.

This is no different than a contingency fee for a defense lawyer in a criminal case. Blatantly unethical.

bruce

Posted by: bruce cunningham | Mar 25, 2011 12:05:10 PM

It's unethical.

Posted by: Another NYC lawyer | Mar 25, 2011 1:28:26 PM

I have a difficult time understanding the rational used to pay government employees for doing the job they were hired to do. Prosecutors receive a salary to prosecute.

The conflict of interest is a separate issue. I see no justification for this.

Posted by: beth | Mar 25, 2011 1:55:32 PM

Why not? Financial firms paid out bonuses to their employees for screwing people with those people's own money, and the GOP lauded it as a prime example of free enterprise. Why shouldn't the state adopt the same successful business model?

Posted by: Res ipsa | Mar 25, 2011 2:29:43 PM

Bruce hits the nail on the head. If you want to make your money on contigency, go practice torts. Criminal law is categorically different, because the objective is justice, not compensation. Furthermore, conviction rates are a poor measure of performance of either side of the criminal bar. An excellent prosecutor may bring cases that are legally defensible but in some way innovative (and thus risky), while an excellent defense attorney may accept cases where the likelihood of conviction is nearly certain but the range of sentencing possibilities requires skillful navigation. I wish we'd stop reporting conviction rates, frankly, because they tell us very little about anything.

We all choose our areas of practice. You shouldn't choose criminal practice if you want contigency pay. I hope the Colorado bar authorities lean hard on this D.A. to drop her bad idea.

Posted by: Matthew | Mar 25, 2011 2:34:47 PM

Unethical per se!

But, I would love to argue the fact to the jury. Also, I would call the prosecutor as a witness to discuss his/her bonus!

Posted by: Stanley Feldman | Mar 25, 2011 5:38:29 PM

I am a prosecutor, and I think a major flaw in criminal prosecution work (and probably government work in general) is that pay is not tied to performance. There is very little incentive to do a good job.

The problem is defining "good job." I would be in favor of bonuses to government attorneys if there was a little more effort put into defining "good job."

Posted by: Rockfish | Mar 25, 2011 8:49:26 PM

Trials generate massive costs, most going to lawyer salaries.

Trials come from the disputation method of answering difficult question in Scholasticism, a church based philosophy.

Trials have no scientific validation as a method to find a correct answer.

Trials have been rigged to generate lawyer employment, mostly. The judge, the most experienced person in the courtroom is not allowed to conduct a personal investigation. All jurors with knowledge are excluded. After the first secret vote fails to reach unanimity, all subsequent votes represent the opinion of the bully, and the rest of the jury who just want to go home. The Rules of Evidence promote anti-scientific garbage. The lawyers generate competing fairy tales, and the judge does nothing about it. Although lie detector tests are nor permitted as unreliable, the jury is supposed to be the finder of facts. Mostly, they measure likability of witnesses, which is an advantage to charming sociopaths.

The trial is anti-scientific, religious based, Medieval garbage. Its sole achievement is to generate the rent for lawyers, a huge bunko scheme.

Posted by: Supremacy Claus | Mar 25, 2011 11:50:27 PM

Being a person who was falsely accused and wrongly convicted, I find this bonus plan to be not surprising. In Dallas County (Texas) D.A.Craig Watson, while campaigning last fall for re-election bragged about his office's 99.4% conviction rate. I am one of the victims of that rate. I was shocked as I sat at the defendent table and watched the courtroom drama unfold with lie after lie. That trial was not about truth, it was about winning and show. I will likely spend the rest of my life getting my name cleared in a system that is not about justice, but clearly powered by money and politics.

Posted by: Audrey | Mar 26, 2011 9:35:38 AM

Mark Bennett of Texas observes, accurately, that this system offers incentives for prosecutors to make unreasonably high offers on cases that should be pled, and unreasonably low offers on tough cases to prosecute. Viewed that way, I don't see how it can be proper. Incidentally, he links to the prosecutor's website, where she notes that she won the Am.Jur. award in ethics in law school.

Posted by: Greg Jones | Mar 26, 2011 10:18:00 AM

Audrey brings up another problem with the lawyer incompetent rent seeking bunko scheme. The shocking and appalling rate of false positives of this garbage Medieval procedure. After spending a $million on a death penalty case there is one exoneration for every 5 convictions. In a quarter of those false positives, the lawyer incompetent obtained a false confession.

Every participant in this inherently dangerous activity should be subject to tort liability, with exemplary damages for acts of bad faith. The trial should really be subject to strict liability standards. The biggest culprit is the judge. Three lawsuits and he should be removed for incompetence.

Imagine repairing a car, or having an operation where 20% of the time there was nothing wrong. The activity would be shut down as a threat to public safety.

As the abolitionists argue, the rate of innocence on death row should pause all executions. Well, the rate of false positives should stop all planned trials until the factors of incompetence, faith based doctrines, and bogus Rules of evidence can be mercilessly removed. Because lawyers make money off trials, that won't happen. Because lawyers make money off delays in the death penalty, the pretexts will be infinite in number, and that will happen.

Posted by: Supremacy Claus | Mar 26, 2011 10:26:45 AM

I'm a fairly new attorney (post-conviction) and former death penalty mitigation specialist. Why doesn't this violate the defendant's right to be presumed innocent? How is this any different than expressing opinion to the public about the guilt of a defendant? Even if you don't think it rises to the level a constitutional violation, it is a very slippery slope, in my opinion.
Heather Rattelade
North Carolina

Posted by: hlrattelade | Mar 26, 2011 11:35:21 AM

I think it would be a bit unethical..

Posted by: Pikavippi Ilman Luottotietoja | Mar 26, 2011 12:41:19 PM

Bill Otis : "unsatisfactory, as almost all compromises are." I guess he has never been married - or had a relationship with anyone. Another example of his inflexible extreme views.

Posted by: Steve Prof | Mar 26, 2011 2:58:27 PM

This reward program is a get out of jail free card for just about all defendants. It represents an improper motive in every case. The prosecution's pay and credibility will become topic one and two of every trial from here, unless the boss decides to pay the defense attorney to not bring it up, the same reward as the prosecution if the prosecution wins.

Posted by: Supremacy Claus | Mar 26, 2011 8:31:16 PM

If Daubert ever applied to law and rule making, the trial could not survive such a test. It is a garbage method, like astrology, rummaging through chicken entrails. Those might have better accuracy, if the reader has common sense and gets to know the parties a little.

Posted by: Supremacy Claus | Mar 27, 2011 12:59:14 PM

Is the DA going to reduce the required success rate below 70% now that defense attorneys know to argue to the jury that it isn't just the prosecution's witnesses who may be personally interested in the outcome? And will she reduce the number of required trials per year to account for the time that her assistant DAs will now have to spend defending the constitutionality of her bonus system on appeal? As a former prosecutor, I know there are plenty of less pernicious ways to encourage prosecutors to perform the job that they signed up for. Frankly, I would not want to work in an office where such incentives were thought to be necessary.

Posted by: DD | Mar 27, 2011 11:05:27 PM

It is worth mentioning that the Carol Chambers story comes in a larger context. Chambers has been the focus of ethics investigations and controversy for her entire term, but not effective opposition was mounted when she came up for re-election.

She also has more death penalty prosecutions that the rest of the state combined (including the latest addition to Colorado's small death row), made waves when she had her staff put judges on stopwatches to see who was swifter in managing cases, has made much more use of habitual offender statutes in the state than other prosecutors, and so on.

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Posted by: Big pony | Apr 11, 2011 6:15:48 AM

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