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September 3, 2021

"Inside the Black Box of Prosecutor Discretion"

The title of this post is the title of this new article authored by Megan Wright, Shima Baradaran Baughman and Christopher Robertson. Here is its abstract:

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year.  More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice.  To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion.  We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder.  We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what sorts of information prosecutors rely upon, when making their decisions.  Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.

Until now.  We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms that they would seek, and explain their decisions.  We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.

Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness.  Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration.  We also find that many prosecutors lack meaningful guidelines or supervision.  Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering their mental health and financial wherewithal.  From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.

September 3, 2021 at 07:57 AM | Permalink


Actually, the “key drivers of outcomes” are the decisions made by the criminals. Those decisions are whether or not to commit the crime and whether or not to accept a prosecutor’s deal.

Posted by: TarlsQtr | Sep 4, 2021 9:19:27 AM

If committing a crime was the "key driver," it is curious how more than that regularly factors into punishment.

Some people would be quite willing to take deals given to other people. But, prosecutors don't offer them in many cases.

Also, there are various factors that lead to crime. I was thinking of something related recently regarding sociopaths. There are some people who are sociopaths and they don't act on it for a variety of reasons. They very well might not care if someone suffers, e.g., but there are reasons why they don't act.

OTOH, there are those who do act, and over history, that is often for reasons not merely in their control. I think of something like the Rape of Nanking, which involved many horrible events. Or, on a more mundane level, crime that occurs in certain specific contexts.

There will always be a criminal element until nirvana comes, but actual crime and the results are a complex matter.

Posted by: Joe | Sep 4, 2021 12:59:02 PM

TarlsQtr implicitly assumes that the accused person is guilty. When I
was falsely accused, I indeed had the choice of whether to accept the
prosecutor's deal, i.e. whether to risk spending decades in prison
or whether to plead guilty to something I didn't do. But I didn't
have the choice of whether to commit the crime; someone else did. My
court-appointed lawyer not only recommended that I plead, but told me
that if I refused he would resign as my lawyer and I'd be on my own.

That was 44 years ago, and my record is otherwise perfectly clean,
before and since, but I'm still living with the profound consequences,
never explained to me, of being a convicted felon.

The plea bargain is an abomination second only to slavery in our
nation's history. It treats guilty and innocent exactly alike, and
severely punishes people for exercising their right to a trial. It
discards the presumption of innocence, and takes guilt, not just as a
presumption, but as the axiom on which the whole system is built. The
system completely lacks both the religious/humanist virtue of humility
and the scientific virtue of falsifiability, substituting for both the
bogus virtues of finality and closure.

I call for abolition of the plea bargain, and for clearing everyone's
record and restoring all their rights after they've served their
sentence. Once you've paid your "debt to society," whether or not you
actually owed any such debt, you're no longer a debtor, and should be
treated just like anyone else.

Posted by: Keith Lynch | Sep 5, 2021 12:35:42 PM

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