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August 22, 2012

"Prosecutorial Administration"

The title of this post is the title of this new paper now available via SSRN authored by Rachel Barkow. Here is the abstract:

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases.  They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking.  Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.

This Article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction.  It focuses on three areas of criminal justice policy -- corrections, clemency, and forensics -- and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission.  It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases.  As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate.

Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors -- and thus through the lens of what would be good for prosecutors and their cases -- it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement.  Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases.

The Article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns.  After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.

August 22, 2012 at 11:33 PM | Permalink

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Comments

Next to be examined should be conflicts arising from the fact experience as a prosecutor has become the E ticket for lawyers seeking judgeships and seats in Congress -- which pretty much puts the fraternity of prosecutors past and present in the drivers seat of criminal justice matters involving in all three branches.

Is it any wonder the prisons are packed and America leads the world in incarceration?

"...its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction."

IS anyone interested in a rational, unbiased criminal justice regime?

Posted by: John K | Aug 23, 2012 10:19:09 AM

John K --

"IS anyone interested in a rational, unbiased criminal justice regime?"

Absolutely. Jerry Sandusky, his wonderfully ethical defense team, and their allied legions in the NACDL. Wanna give them a seat at the table?

Actually, you do, but when you get this done, make sure your 12 year-old is somewhere else.

Posted by: Bill Otis | Aug 23, 2012 10:54:59 AM

Jerry Sandusky will die in prison -- and appropriately so -- despite the appropriately vigorous efforts of his defense team. And since neither I nor anyone I know will lose any sleep over Sandusky dying in prison, an expression you often use leaps to mind. Straw man. Which is Sandusky's only apparent role in your defense of a rigged system of, by and for the prosecutor fraternity.

Moreover, for every Sandusky you show me I'll show you some poor schlub set upon and ruined by the DOJ for doing next to nothing...or worse, getting pulled in to one of its many ongoing entrapment ventures...sometimes on the flimsiest of contexts.

And the DOJ's power and capacity to do such things was all made possible thanks to literally thousands of vague, sweeping, prosecutor-friendly laws typically concocted/ramrodded by fraternity members in Congress and typically backstopped by fraternity members on the bench.

As for the 12-year-olds. They and and their parents should remain as vigilant about teachers, scout leaders, coaches, uncles, cousins and other family members and other acquaintances they might never suspect of being pervs as they are about any given stranger who might be the next Sandusky.

It's what responsible parents have been doing for generations now by warning their kids to be alert and to report any funny business.

BTW, Sandusky went about his vile business for decades despite the existence of a plethora of LE agencies in Pennsylvania as well as the DOJ. Just saying.

Like it or not, there are a number of ways the system could be tweaked to put citizens accused of crimes on a more level playing field with the government without jeopardizing even a single 12-year-old.

Posted by: John K | Aug 23, 2012 11:56:54 AM

John K --

It is scarcely a straw man to expose what it's plain you really want -- not a "more level playing field" (as if normal people should be reduced to a "level playing field" with Sandusky and other criminals), but a field that will result in the more frequent acquittal of the guilty, from Sandusky (whom you reluctantly but perforce renounce) to the white collar swindlers whose admittedly less vulgar activities include stealing the life savings of those they have entrapped into trusting them.

Sure, John, that's JUST what the system needs.

Posted by: Bill Otis | Aug 23, 2012 4:42:47 PM

John K stated: "Jerry Sandusky will die in prison -- and appropriately so -- despite the appropriately vigorous efforts of his defense team. And since neither I nor anyone I know will lose any sleep over Sandusky dying in prison,..."

Let me rephrase the above passage for you in a manner that is probably more accurate and honest: "Jerry Sandusky will die in prison -- and appropriately so -- despite the appropriately vigorous efforts of his defense team. And since I and everyone I know is savvy enough to never admit that we will lose sleep over Sandusky dying in prison,..."

His sentence as applied is essentially LWOP. Although I do not remember if you specifically have come out against such sentences, a lot of your ilk on this blog have done so. They are just smart enough to not do it publicly about such an egregious and high profile case.

Posted by: TarlsQtr | Aug 24, 2012 9:01:32 AM

The thing I like about people of my ilk is that we seldom join lynch mobs or witch hunts or even kick bad people when they're down.

Posted by: John K | Aug 24, 2012 12:17:57 PM

John K --

"The thing I like about people of my ilk is that we seldom join lynch mobs or witch hunts or even kick bad people when they're down."

Some observations:

1. Do you think Sandusky was "lynched" by the prosecutors? Is so, why? If not, why are you using a loaded word to describe the prosecutors' (and most other people's) reaction to him?

2. "Witch hunts" are a bad thing because they seek out something that does not exist. Determined prosecutions of the Sandusky's (and the strongarms, thugs and, yes, your beloved white collar swindlers) are a good thing, because all of those people exist in spades, and their predation on the innocent should be brought to an end, your consternation notwithstanding.

3. Has anyone "kicked" Sandusky, while he "was down" or otherwise? No, he hasn't been kicked; you're just using metaphorical language because a literal description of what has been done to Sandusky will impeach your never ending, acidic criticism of prosecutors.

What has actually been done to Sandusky is that he was arrested on probable cause and convicted on evidence proving his numerous crimes beyond a reasonable doubt. He got plenty of angry criticism, you bet, but (1) criticism isn't kicking, (2) it was warranted big time, and (3) it was coming almost entirely from the media, not the prosecutors.

4. You might consider reserving your obvious sympathy for the poor-kicked-while-down Sandusky for those who actually deserve it, starting with his victims. But this is something you just don't do: Criminals deserve sympathy, victims can go to hell, arm-in-arm with prosecutors.

Wonderful.

Posted by: Bill Otis | Aug 25, 2012 5:56:40 PM

good one bill.

the only one that got shafted by a "witch hunt" would have been his boss. Who followed the law in place at the time and got houned to DEATH!

Posted by: rodsmith | Aug 26, 2012 2:15:28 AM

rodsmith --

Nailed it.

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