"It is difficult to get a man to understand something, when his salary depends upon his not understanding it." (1)
Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing "prosecutorial norm" in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and professional energies to criminal prosecution, and 3) tries to somehow do or affect some vague notion of "justice." Such norms, however, are regularly challenged and flouted when the prosecutorial function is outsourced. Although the outsourcing of nearly every function of the criminal adjudicative process has attracted great attention among scholars and policymakers, a greater critical lens must be focused on prosecutors.
The hazards of prosecutorial outsourcing have largely been neglected because existing prosecutorial scholarship focuses on the United States Attorney or district attorneys' offices in large, metropolitan areas. Not all prosecutorial offices are created equal, however. Cities, towns, and other small political subdivisions throughout the country frequently hire prosecutors on a part-time basis through a competitive bidding process, releasing requests for proposals (RFPs) in an effort to procure bids. This practice, however, may be observed not only in small or rural municipalities, but also in cities located near larger population centers. Examples of such municipalities include Ferguson, Missouri, and Kyle, Texas. Such local governments often work with budgets that are not expansive enough to hire a full-time city attorney or prosecutor. Beyond demonstrating the qualifications, the applicant attorneys or firms vying for a prosecution contract may have to serve as good prosecutors, applications from such applicants must also demonstrate cost effectiveness by detailing what budget and compensation is required during the term of service specified by the RFP.
Although engaging in a competitive bidding process may seem like a smart way to handle the problem of governmental waste and financial inefficiencies, it introduces a host of challenges and negative externalities. This Article sheds light on the problems caused by introducing an overtly economic calculation (how cheaply and how profitably the prosecutorial function may be fulfilled) into the criminal adjudicative process. This practice not only flouts American Bar Association and National District Attorney Association prosecutorial standards, but also undermines the prosecutorial norms described above in ways that are likely to destabilize confidence--and the social cohesion born of such confidence--in local criminal justice systems. This practice has the risk, however, of expanding beyond the reach of non-metropolitan jurisdictions to larger counties, cities, and local governments as budgets continue to shrink across the board and devolution and privatization continue to be advanced as cure-alls to economic woes.
TABLE OF CONTENTS INTRODUCTION 163 I. THE AMERICAN PROSECUTOR'S EVOLVING ROLES 169 A. From Private Actor to Public Servant 169 B. Prosecutorial Norms 171 C. Governance of Prosecutors Under ABA and NDAA Standards and ABA Model Rules 178 II. OUTSOURCING OF PROSECUTORIAL SERVICES 181 A. Spatial Inequality, Dwindling Tax Bases, and Devolution 182 B. Defining "Outsourcing" and "Privatization" 185 C. The Competitive Bidding/RFP Process 187 D. Samples of Prosecutorial Outsourcing RFPs Throughout the United States 189 1. Green River, Wyoming 189 2. Lakeville, Minnesota 190 3. River Falls, Wisconsin 190 4. Ephraim City, Utah 191 5. Kyle, Texas 192 6. Hortonville, Wisconsin 194 III. PROSECUTORIAL BIDDING AND OUTSOURCING IS DISTINCTLY PROBLEMATIC 195 A. The Dangers of Bidding: Self-Dealing and Self-interest 197 B. The Dangers of Bidding: Multiple Principals and Divided Loyalties 200 C. The Dangers of Bidding: Blame Shifting and Lack of Accountability 203 D. Illusory Problems of Outsourced Prosecution 205 E. Comparisons with Other RFP Processes 207 1. Bidding for Prosecutorial Services versus Private Prisons 207 2. Bidding for Prosecutorial Services vs. Indigent Defensc 210 CONCLUSION 212 INTRODUCTION
The shooting death of Michael Brown, an unarmed 18-year-old African American man, at the hands of Darren Wilson, a white Ferguson, Missouri police officer, prompted not only riots and protests in Ferguson and beyond, but also wide-spread debates and soul searching as to the nature of American criminal justice, especially focusing on issues such as law enforcement militarization, limits on the use of deadly force, and interactions between police and people of color. (2)
A little less than a month after Michael Brown's death, the Civil Rights Division of the Department of Justice initiated its own investigation of the Ferguson Police Department pursuant to the Violent Crime Control and Law Enforcement Act of 1994, the Safe Streets Act, and Title VI of the Civil Rights Act of 1964. (3) The Department of Justice's investigation, in a subsequent report released on March 4, 2015, catalogued and scrutinized a wide array of problematic law enforcement practices perpetrated by the Ferguson Police Department against the public. (4) One of the practices highlighted in the report was the Ferguson Police Department's stubborn focus on generating revenue for the city: "City and police leadership pressure officers to write citations, independent of any public safety need, and rely on citation productivity to fund the City budget." (5)
In stark contrast to the intense public scrutiny of the profit-motivated Ferguson police officers, the role of city prosecutor Stephanie Karr in Ferguson's criminal justice system was largely ignored. The Civil Rights Division investigation, however, revealed that she engaged in a pattern of "recommending higher fines [on high volume offenses] and recommending probation only infrequently,"(6) as well as encouraging police officers to cite individuals with every charge possible per incident in an effort to obtain the "correct volume of cases" on the Ferguson municipal court docket. (7) Karr started in the part-time position of City Prosecutor in April 2011. (8) At the time of this appointment, she was already serving as Ferguson's city attorney, providing representation on civil matters. (9) Ms. Karr was hired on as the city's prosecutor by way of contract after a competitive bidding process: Missouri state law mandates that such positions, not only at the state level, but at the local level as well, be filled through a competitive bidding process in which a low-bidder--an attorney or a firm who has submitted the bid with the lowest cost--is automatically awarded the contract. (10) Given this statute, Ferguson has historically "contract[ed] for legal services, so it [issued] a [new] request for proposals on June 1[, 2016]." (11)
For other counties, cities, towns, and local governments of similar size, hiring a full-time prosecutor or district attorney is often cost-prohibitive, if not impossible, given scarce financial resources. (12) In cities like Ferguson, which are generally too small to justify hiring a full-time district attorney, a prosecutor may be appointed to the post, often by a mayor or a city council. Candidates for such outsourced prosecution positions are often required to go through a competitive bidding process in which cost-savings, fine generation, and outbidding competitors are prioritized over other evaluative concerns, submitting a bid in response to a request for proposal (RFP) issued by the jurisdiction in question. (13)
The prosecutors hired pursuant to this method of outsourcing the prosecutorial function have little in common with the popular cultural conception of district attorneys and other criminal prosecutors in the United States. In the popular imagination, a prosecutor is a practitioner who has been elected to the position, who leads an office in an attempt to seek justice on behalf of either "the People" or "the State." Pop culture is rife with such examples, ranging from the ADAs of Law and Order to the bumbling yet consistently honest Hamilton Burger of Perry Mason, who (with his extraordinarily bad record at trial) described his work as requiring him merely to "do justice, and justice is served when a guilty man is convicted and when an innocent man is not." (14)
Outsourcing prosecution through RFPs also creates serious tensions with the professional standards that bind prosecutors. For example, the American Bar Association has promulgated prosecution function standards "to be used as a guide to professional conduct and performance." (15) Under these standards the "duty of the prosecutor is to seek justice, not merely to convict." (16) It is also incumbent upon the prosecutor to "seek to reform and improve the administration of criminal justice." (17) The Model Rules of Professional Conduct, which have been adopted in whole or part by all 50 states, (18) also bear upon the ethical obligations that are incumbent upon prosecutors. (19) The National District Attorneys Association has similarly promulgated its own ethical standards for prosecutors, which are more detailed than those from the ABA. (20)
While it helps to examine the issues raised as a result of relying on outsourced prosecutors through the lenses of formulaic rules--seen by many who practice law as the only requirements necessary to consider when reflecting on their own comportment--this Article endeavors to hold our nation's...