Institutional design and the policing of prosecutors: lessons from administrative law.

• Author: Barkow, Rachel E.

INTRODUCTION I. THE PROSECUTOR AS LEVIATHAN A. The Danger B. The Path to Unchecked Power II. THE ADMINISTRATIVE LAW MODEL A. Internal Separation B. Other Checks on Agency Power III. REDESIGNING THE PROSECUTOR'S OFFICE IV. THE POLITICS OF REFORM A. Other Mechanisms for Checking Prosecutorial Power 1. Judicial oversight 2. Limit plea bargaining or charging discretion 3. Greater legislative or public oversight 4. Prosecutorial guidelines or open processes B. The Benefits of Using Internal Separation CONCLUSION INTRODUCTION

It is hard to overstate the power of federal prosecutors. The number of federal criminal laws has exploded in recent decades, (1) and the punishments attached to those laws have increased markedly. (2) There are now approximately 200,000 federal prisoners, (3) making the federal prison system the largest in the country, eclipsing each and every state. (4)

Federal prosecutors control the terms of confinement in this vast penal system because they have the authority to make charging decisions, enter cooperation agreements, accept pleas, and recommend sentences. In the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the vast majority of cases. (5) It is only in the rare 5% of federal cases that go to trial that an independent actor reviews prosecutorial decisions. (6) In the 95% of cases that are not tried before a federal judge or jury, there are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion to bring charges, to negotiate pleas, or to set their office policies. (7) In a national government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. (8) They have the authority to take away liberty, yet they are often the final judges in their own cases. (9)

One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Standard judicial and legislative oversight has failed to correct this power grab by prosecutors. Despite the arguments of scholars for greater judicial supervision, (10) federal judges continue to rubber stamp cooperation, charging, and plea decisions. (11) Similarly, although commentators have called on Congress to rein in prosecutorial discretion with federal criminal code reform (12) and the repeal of mandatory minimum sentences, (13) members of Congress lack the incentives to enact these reforms as long as they reap political rewards for looking tough on crime. (14) Although scholars have made persuasive cases for these reforms, they are simply unrealistic in the current political climate. The solution must be sought elsewhere.

This Article looks within the prosecutor's office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors' offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. (15) The problems posed by federal prosecutors' combination of adjudicative and enforcement functions are the very same issues raised by the administrative state--and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law is not only sensible, it is more politically viable than the leading alternative proposals for curbing prosecutorial discretion.

Part I begins by describing the combined law enforcement and adjudicative powers of federal prosecutors, thereby laying the groundwork for why an institutional check on prosecutorial power is needed. Part II explains that the dangers posed by the combination of law enforcement and adjudicative power are hardly new to the federal system; rather, as Part II describes, the very same risks are posed by traditional administrative agencies. A central mission of administrative law is to design checks on agency overreaching in light of these combined powers. Part III then explores how the traditional regulatory agency model of internal separation could be effectively and feasibly applied to the prosecutor's office. Part IV considers the administrative and political viability of using institutional design to check prosecutors and explains the advantages of using functional separation within the office over other means of checking prosecutorial power that have been the subject of scholarly attention.

1. THE PROSECUTOR AS LEVIATHAN

   Numerous scholars have chronicled and critiqued the expansion of federal criminal law. (16) Federal criminal laws govern a huge sweep of conduct, (17) and the punishments are often severe. (18) In theory, federal prosecutors stand as the gatekeepers to ensure that these laws are properly applied and are used judiciously. That is, prosecutors working in United States Attorneys' Offices should ensure that no matter how broadly a criminal statute is worded, it is not applied except in those instances where a defendant is actually blameworthy. These prosecutors should also make sure that a law is not applied to a given case if the punishment dictated by the law would be excessive. (19) Federal prosecutors have an additional responsibility to ensure that federal involvement is the proper course and that a matter should not be pursued by state prosecutors instead. (20)

   Unfortunately, as Subpart A explains, there is currently little to no oversight of federal prosecutors to ensure that these considerations are taken seriously. Subpart B takes up the question of why supervisory mechanisms have not been put in place.

   1. The Danger

      Federal prosecutors are the prototypical executive official. (21) There are ninety-three United States Attorneys, who are appointed by the President with confirmation by the Senate, (22) and they work with Assistant United States Attorneys, who are hired without Senate confirmation. (23) Each of these prosecutors is charged with investigating and enforcing federal criminal laws. Because there is discretion about whether and which charges to bring in a given case, (24) this law enforcement function carries enormous power over individuals' lives. (25)

      If prosecutors exercised only this executive power, their authority would be broad, but, from a constitutional and governance perspective, unremarkable. Today, however, federal prosecutors' power goes beyond law enforcement. At the federal level, just as in the states, most criminal cases are resolved without ever going to trial. (26) Plea bargaining--whether over charges or sentences--is the norm. (27) This means that a prosecutor's decision about what charges to bring and what plea to accept amounts to a final adjudication in most criminal cases. Because numerous federal laws govern similar behavior and are written broadly, (28) prosecutors often have a choice of charges, which often, in turn, means a choice of sentence as well. (29) With the prevalence of mandatory minimum laws, a prosecutor's decision to bring or not bring charges can dictate whether a defendant receives a mandatory five-, ten-, or twenty-year term, or whether he or she is sentenced far below that floor. (30) The United States Sentencing Guidelines, like mandatory minimums, have also increased prosecutorial leverage by curbing judicial sentencing discretion. They have prompted more pleas and fewer trials. (31) Although recent Supreme Court decisions have revamped federal sentencing law to relax the effect of the United States Sentencing Guidelines, (32) in the vast majority of cases judges continue to sentence according to the Guidelines or depart only with a government motion, (33) the chief basis for a departure being that a defendant has provided substantial assistance to the government. (34) A claim of substantial assistance is also the only way for most defendants to avoid a mandatory minimum statutory term, (35) and that also requires a motion from the prosecutor. (36) In most cases, then, the prosecutor becomes the adjudicator-making the relevant factual findings, applying the law to the facts, and selecting the sentence or at least the sentencing range. (37)

      If a defendant could costlessly take his or her case to trial, the prosecutor's role in charging and accepting pleas would be less remarkable. After all, if a defendant could exercise his or her jury trial rights without penalty, then all the charging and bargaining would take place in the shadow of that trial regime, and presumably the prosecutor's freedom would be bounded by the expected outcome at trial. Put another way, the prosecutor could not demand more than what the defendant would expect to receive at trial, so the real adjudicative power would remain with a court and with a jury.

      But going to trial is far from costless for defendants. As an initial matter, defendants face stiffer sentences--often significantly stiffer sentences--if they opt to go to trial instead of pleading guilty. In Bordenkircher v. Hayes, (38) the Supreme Court held that the Constitution does not prohibit prosecutors from threatening defendants with more serious charges if they exercise their trial rights. In that case, for example, the Court upheld a prosecutor's decision to offer to recommend a five-year sentence to the judge if the defendant pleaded guilty but to bring charges subjecting the...