“You’re Paying Me for My Discretion” vs. “We’re Soldiers in this Army”

Do we want prosecutors who feel themselves empowered to do justice as they see it on a case-by-case basis, or do we prefer prosecutors who think of themselves as bureaucrats or cogs in a machine, rigidly adhering to the mandates of a head prosecutor?  That’s the question that was foremost in my mind as I read Kay Levine and Ron Wright’s thought-provoking new article, “Prosecution in 3-D,” 102 J. Crim. L. & Criminology 1119 (2012).  The article analyzes information collected in interviews with dozens of prosecutors in three different offices, including the quotations in the title of this post, which seem to nicely distill competing viewpoints on the line prosecutor’s discretion.

Critics often lament the scope of prosecutorial charging and plea-bargaining discretion, which can be difficult to reconcile with rule-of-law ideals.  However, Levine and Wright’s research makes clear that prosecutorial discretion is not a monolithic phenomenon, but may function quite differently in different offices.  They focus particularly on the significance of two variables relating to office structure.  They summarize as follows:  

Two particular features of office structure drew our attention: the flat or pyramidal shape of the organization’s workforce and the preference for hiring experienced attorneys or recent graduates into entry-level positions. These features of the office’s social architecture correlate with distinctive professional identities of the prosecutors who work there. For example, attorneys who work in pyramidal offices and who are hired without experience (as in Metro County) tend to accept bureaucratic and group values. A strong team spirit marks their professional identities. On the other hand, attorneys in an office such as Midway County, characterized by a flatter structure and more experienced hires, display professional identities that are decidedly more independent; they feel no particular obligation to match their own outputs to the decisions of their peers or to the policies of their superiors. These are autonomous, rule-defying prosecutors. Surprisingly, an attorney’s team-member-versus-autonomous-actor identity correlates more strongly with his office’s social architecture than with his gender or race.  (1123)

Levine and Wright do not take a position on which type of office structure is superior, but they do highlight what may be the most important trade-off:

The public expects the professionals who work in American criminal justice to pursue two contradictory aims: to treat in the same way every person who commits the same crime and to treat each suspect and each defendant as an individual. These paradoxical expectations—treat every person the same, except for those who should be treated differently—also shape our views about prosecutorial discretion. Not surprisingly, then, one theme that arose during our interviews was the need for consistency among different prosecutors who work in the same office.

While interviewees in all of our research locations raised this point, some attorneys gave a higher priority to consistency than others, and this variation seemed to correlate with their office environments. Line prosecutors in Metro, an office whose structures promote a strong team spirit, explained that they encourage each other to produce consistent outcomes in the cases they each handle. Conversely, prosecutors in our flat office stocked with veterans (Midway) placed value on individualized outcomes rather than on consistency. (1170-71)

The trade-off implicates questions of accountability, which lie at the heart of concerns about prosecutorial discretion.

I think that what makes people most uncomfortable with prosecutorial discretion is the sense that great power is being exercised by individuals who face no real accountability for their decisions.  Line prosecutors do not normally have to face the voters on a regular basis (although in smaller jurisdictions, it is true that the elected head of the office may actually have to handle cases on a day-to-day basis).  Nor, if democratic accountability is lacking, do judges seem to have much desire or ability to fill the gap.  Occasionally, judges will throw out a plea deal or otherwise attempt to hold prosecutors to account, but this seems more the exception than the rule.

But democratic and judicial possibilities do not exhaust the potential mechanisms of accountability.  Levine and Wright’s research suggests that bureaucratic accountability may function in a robust way in some offices.  Layers of supervision and peer monitoring may help to ensure that some defendants do not suffer (or benefit) unfairly from a single prosecutor’s whims or idiosyncratic priorities.  Moreover, if we imagine an elected prosecutor at the top of the bureaucratic pyramid, we may receive some further reassurance that a measure of democratic accountability is in play.

Still, the picture is troubling in a number of respects.  For one thing, as government bureaucracies go, prosecutor’s offices tend to be unusually opaque, and it is questionable whether voters really have access to the sort of information that would permit a good assessment of how well any given office was performing.  (The fact that incumbent DA’s rarely face serious electoral challenges may, in part, reflect the lack of rigorous public scrutiny.)

Moreover, the way that the accountability mechanisms work may produce a general tendency to over-harshness.  If systematic performance measures are not available, then the public’s views of an office’s performance will be shaped by sensationalistic media coverage of atypical cases.  If the office is lenient to a defendant who then goes out and commits a horrible crime, the DA will take a political hit.  On the other hand, there may be little or political cost to prosecuting cases to the hilt.  The people who find themselves in the prosecutorial crosshairs tend to be politically marginalized to begin with, and if there are ultimately wrongful convictions or overly harsh sentences, blame can easily be shifted to judges and juries.

This may bring us back around to the ideal of an experienced, professional, politically insulated prosecutor who feels empowered  to do the right thing in each case, even at the cost of a certain amount of disparity between cases based on who the prosecutor is.

As Levine and Wright continue their research — and the present article purports to be merely a first installment — it would be fascinating to learn whether different office structures do, in fact, tend to produce different levels of severity.

But how about accountability  in a world of “autonomous, rule-defying prosecutors,” as Levine and Wright put it?

Their research does suggest yet another model of accountability, one based on professional reputation.  They observe that “most prosecutors admit that they want defense attorneys to see them as fair and prepared, rather than as aggressive or game-oriented.”  (1166)  Additionally, they found that some prosecutors develop and value professional relationships with other prosecutors from outside their own offices.  (This seemed to be less true, though, in the more hierarchical office.)  The desire to maintain a good professional reputation may thus establish an effective alternative form of accountability, even for prosecutors who operate with only very weak bureaucratic controls.

Admittedly, though, this type of accountability may be too soft to mollify some of the critics of prosecutorial discretion.