I am just one of the many commentators who have bemoaned the absence of robust accountability for prosecutors in a system dominated by plea bargaining. (See, for instance, my papers here and here.) Now, Ron Wright and Marc Miller, two of my favorite authors on criminal procedure, have an interesting new paper exploring prosecutorial accountability from a global perspective.
Wright and Miller contrast the traditional American and civil-law approaches to prosecutorial accountability: the U.S focuses on external accountability, while most of the rest of the world focuses on internal accountability. Thus, in the American system, prosecutors are traditionally elected at the local level, which theoretically establishes accountability to voters. Elsewhere in the world, prosecutors are subject to bureaucratic accountability through large, centralized justice departments.
Wright and Miller argue that the traditional distinction between the U.S. and civil-law approaches is breaking down, as American prosecutorial offices are growing more bureaucratic and European offices are becoming more responsive to the public. “Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world” (3).
Wright and Miller provide a helpful overview of the traditional civil-law approach, which I find in many respects quite attractive.
Criminal codes in other nations provide prosecutors with fewer charging options and hence less discretion in which to operate. In the traditional view, “[t]he prosecutor applies law without considering public safety or other larger social objectives. In this view of prosecutorial power each prosecutor is simply building a file to determine if the evidence can meet the relevant standards of proof” (15).
Also in contrast with the American system, “The typical new arrival in the public prosecutor service intends to make an entire career as a criminal prosecutor” (16). “Once the new prosecutors in civil systems join the service, they receive training that is more systematic than prosecutors usually receive in the United States. They also operate under written guidelines that address a wide range of the routine decisions that individual prosecutors face” (16).
In the U.S., the prosecutorial function is more decentralized, with 2,300 state prosecutorial offices each operating in a largely autonomous fashion. (Trivia question: what are the four states with centrally appointed, instead of locally elected, chief prosecutors? Answer: Alaska, Connecticut, Rhode Island, and New Jersey.)
Although the vast majority of American chief prosecutors must face the voters, the electoral checks on U.S. prosecutors are actually more theoretical than real. “Incumbents hold a large advantage, reflected by greater than 95% reelection rates. . . . About 85% of prosecutor incumbents run unopposed. (21)”
In the civil-law world, pressure has been placed on the internal system by growing caseloads. Prosecutors simply cannot charge every case are in which guilt could be proven, meaning that prosecutors must exercise some discretion in dismissing or reducing charges. However, more discretion means less accountability through the system of bureaucratic control. At the same time, many nations have been experimenting with new mechanisms for drawing on external views to help guide the exercise of discretion. For instance, some European nations are now trying out the “community prosecution” model developed in the U.S. Additionally, “[m]any nations are revamping prosecutorial and judicial guidelines to stress the importance of consulting and deferring to the wishes of victims when possible” (27).
In the U.S., two forces are driving enhanced bureaucratic control:
First, the long-term growth of prosecutors’ offices makes informal monitoring by the chief prosecutor impractical and therefore makes more formal bureaucratic control more appealing. Second, the long-delayed arrival of information technology to the work of criminal prosecutors opens enormous opportunities for tighter bureaucratic control of individual prosecutors. (3)
Here are some interesting facts regarding the size of prosecutorial offices:
- The number of people employed in state prosecutor offices increased from 57,000 to 78,000 between 1992 and 2005.
- “[T]he great majority of residents in the United States now live in jurisdictions that operate large, bureaucratic prosecutors’ offices with a median staff size over 100.”
- The Los Angeles County District Attorney’s Office alone processes about two-thirds the number of felonies that are handled nationally in the federal system.
On the whole, Wright and Miller see the U.S. as lagging behind other parts of the world in establishing prosecutorial accountability (34). They are hopeful, though, that improved case data management will provide the key to enhanced accountability both internally and externally.
Entitled “The Worldwide Accountability Deficit of Prosecutors,” the paper is forthcoming in the Washington and Lee Law Review.