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July 17, 2012

"Prosecutor Elections, Mistakes, and Appeals"

A helpful reader alerted me to this interesting-looking new paper on SSRN by Bryan C. McCannon which shares the title of this post. Here is the abstract:

Public prosecutors exercise a significant amount of discretion in the criminal justice system. In the U.S. the dominant form of accountability is that prosecutors must be re-elected by the voters. Recent empirical work illustrates that election concerns open up the potential for distortion in the decisionmaking of prosecutors. Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for re-election. This effect is magnified when the incumbent is challenged. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system?

A panel data set of appellate decisions in western New York is analyzed. It is shown that if the initial felony conviction takes place in the six months prior to a re-election and is appealed, then the probability the appellate court upholds the lower court’s decision decreases by 5.1-7.1 percentage points. Thus, the popular election of prosecutors results in inaccurate sentences and wrongful convictions.

July 17, 2012 at 08:29 AM | Permalink

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Comments

"Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for re-election. This effect is magnified when the incumbent is challenged. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system?"

Isn't it odd that, while plea bargaining is routinely criticized as the expression of prosecutors' railroading defendants, the opposite procedure -- taking cases to trial -- gets criticized as "hawkish behavior."

If plea bargaining is bad, and taking cases to trial is also bad, someone needs to explain how criminal cases are supposed to be resolved.

Posted by: Bill Otis | Jul 17, 2012 8:47:35 AM

It's not that plea bargaining is bad or taking cases to trial is bad, it's that they are used for purposes other than what was intended. Plea bargains were meant to lighten the load on the judicial system by allowing defendants who wanted to plead guilty to do so quickly, avoid a trial, and receive a lighter sentence in return, but they are used to both influence defendants who might not want to plead guilty to do so in the face of a lengthy and severe trial and to prevent them from appealing the decision in the future.

Likewise, not offering a plea bargain deliberately should be reserved for situations where the charges are numerous or severe enough to warrant it, but the prosecutors mentioned are subjecting defendants to a lengthy trial and harsher consequences for political reasons.

Posted by: NickS | Jul 17, 2012 9:17:36 AM

NickS --

"[Plea bargains] are used to both influence defendants who might not want to plead guilty to do so in the face of a lengthy and severe trial and to prevent them from appealing the decision in the future."

When there is a complicated or long-running crime, a "complicated and severe trial" is the natural consequence. It's not a plot. And if you want to appeal the verdict, then of course you will not be offered a plea bargain. The whole point of bargains is to end the litigation, not to kick off yet more litigation in the court of appeals.

"Likewise, not offering a plea bargain deliberately should be reserved for situations where the charges are numerous or severe enough to warrant it, but the prosecutors mentioned are subjecting defendants to a lengthy trial and harsher consequences for political reasons."

What language in the Constitution requires prosecutors to offer a plea bargain, ever? And any defendant who wants to avoid a lengthy trial can do so by pleading straight up.

Posted by: Bill Otis | Jul 17, 2012 10:47:39 AM

Bill Otis,

I would say that neither not offering a plea nor taking a case to trial are problems in and of themselves. A problem manifests in this situation when a prosecutor refuses to drop weak cases, whether that is out of political calculation looking at their upcoming re-election or some other reason, whatever the cause not making an honest evaluation of the case in front of them is a serious matter.

And except in the most egregious of such cases (think Nifong in North Carolina) the prosecutor suffers absolutely no negative consequences for such decisions.

Now, I tend not to think that changing the manner of prosecutorial appointment would make much difference here, and am instead fully with SC in his call for an end to the grant of immunity that has attached itself to the office.

Posted by: Soronel Haetir | Jul 17, 2012 11:52:26 AM

Soronel --

"I would say that neither not offering a plea nor taking a case to trial are problems in and of themselves. A problem manifests in this situation when a prosecutor refuses to drop weak cases..."

It depends on why the case is weak. If it's weak because the defendant's gang just assasinated one of the your chief witnesses, the prosecutor should be all the more determined to, not only go to trial, but wax the defendant at sentencing.

If it's weak because there was never a crime at all, and the prosecutor just made the whole thing up to please some political constituency (which was the case with Nifong when he fabricated a rape case against white students to pander to a particularly sick constituency in the party whose nomination he was seeking (a party whose name will not be mentioned)), then, you bet, we have a major problem.

Overall, however, I had to laugh at the original article's consternation that more cases were being brought to trial, when the board just finished an outraged discussion about how prosecutors are routinely denying defendants their right to go to trial.

Posted by: Bill Otis | Jul 17, 2012 12:28:42 PM

Interesting initial study, but for the follow-up questions:

1) Does a similar phenomen occur in prosecutors and defense offices when a person is up for a potential promotion. For example, in my state, the public defender system requires a certain amount of time and a certain number of trial before an attorney can move up to the higher grades. As one of these attorneys approaches the time when they are eligible for the pay increase, do they tend to try an extra case or two to meet the quota of cases? Likewise, when the chief prosecutor is appointed, do the top assistants try to get some additional big cases to trial when the chief is about to retire?

2) Is the phenomenom of extra trials unique to this one appellate district in New York or do a similar number of extra trials occur in other places?

3) Is the increased errors limited to cases actually tried by the elected prosecutor (perhaps reflecting a distraction from the case) or are the errors throughout the office (reflecting a directive to refuse to plea bargain cases)?

4) Are the plea offers materially different (reflecting the prosecutor pushing cases to trial) or are defense attorneys trying to take advantage of the distraction of running for office to unsuccessfully put pressure on the prosecutor to make better offers to avoid being tied down in trial?

Posted by: TMM | Jul 17, 2012 2:20:08 PM

Those are VERY good questions TIMM and should have been asked in the original study!

Posted by: rodsmith | Jul 17, 2012 9:37:39 PM

rodsmith -

TMM is a relatively recent, and major, addition to the comments section. I don't know who he is, but every comment I've seen from him is informed and thought through.

Posted by: Bill Otis | Jul 17, 2012 10:46:42 PM

"decreases by 5.1-7.1 percentage points" That is a small, meaningless effect at the gut level. One will start to feel a drop of a third, barely. One must correct for large sample sizes which render tiny, meaningless changes statistically significant but clinically meaningless.

One should add the additional problem of the employment status of all ADA's. They are at will employees. They can be dismissed for no cause, or even for a bad cause, in bad faith. So someone needs six more months to get vested in his pension plan, there will be no standing up for truth or justice. They will drop good cases, and proceed with bad cases if told to by the politics minded DA.

Adding tort liability based on professional standards of due care would provide support for the courageous ADA being forced to decide a case against standards.

Posted by: Supremacy Claus | Jul 18, 2012 4:00:43 AM

I have to agree with SC on this [shudder]. On its face, a 5-7% increase in appellate reversals seems like a minor effect, if not a random statistical blip.

Posted by: Anon | Jul 20, 2012 2:21:15 PM

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