Prosecution in 3-D.

• Author: Levine, Kay L.
• Position: Introduction through III. Research Design B. Shape and Hiring Preference in Our Research Sites, p. 1119-1146

1. INTRODUCTION II. THREE DIMENSIONS OF CRIMINAL PROSECUTION A. The External and Individual Dimensions of Prosecution B. The Third Dimension: The Influence of the Office 1. The Office as a Unit of Analysis in Prior Literature 2. Explicit Policies as Office Structures 3. Organizational Shape and Hiring Preference as Office Structures III. RESEARCH DESIGN A. Methodology B. Shape and Hiring Preference in our Research Sites IV. EFFECTS OF THE THIRD DIMENSION ON PROSECUTORS' PROFESSIONAL ORIENTATION A. The Development of an Autonomous or Team Spirit B. Development of Connections to the Larger Office C. Development of Relationships with the Larger Legal Profession 1. Prosecutors Elsewhere 2. Other Attorneys 3. Accounting for the Disparity V. EFFECTS OF THE THIRD DIMENSION ON OFFICE OUTPUTS A. Consistency in Case Handling B. Other Effects on Outcomes VI. CONCLUSION I. INTRODUCTION

   The criminal prosecutor works in many different professional environments: in community meetings, in consultations with the police, in misdemeanor and felony courtrooms, in sentencing commission and legislative hearings, and in budget meetings. The professional experiences of this courtroom actor extend far beyond the courthouse doors.

   Despite the multidimensional nature of the prosecutor's work, many legal scholars paint a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor's performance. Accounts in the first dimension look outward toward external institutions that shape prosecutors' case-handling decisions. These external checks come from the legislative codes that define crimes and punishments, jury and judicial review of the evidence, and the ethics enforcers within the legal profession, among others. When scholars assess prosecutorial behavior along this first dimension, they usually conclude that external institutions offer too much space for the prosecutor to roam and too little control over prosecutorial discretion.

   Sketches in the second dimension encourage us to look inward, toward the prosecutor's individual conscience. In these portrayals, the lawyers who work in the prosecutor's office over the long haul are idealistic people, willing to accept a reduced salary for the opportunity to serve the public. Personal experience and morality guide them in prioritizing among crimes and in designing prosecution strategies to promote public safety. This internal and individualized account, while true in some respects, offers little explanation for why prosecutors in some places seem to do the work differently than prosecutors in other places, and no guidance for chief prosecutors looking to improve results or the workplace environment in their offices.

   In this Article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps to produce or reinforce. Looking to institutional forces within the office itself can show us in greater detail how a prosecutor experiences her professional role and the rule-of-law implications of that role. (1) This deeper look at prosecution examines more than just the contents of explicit office policies. In addition to understanding the official policies, new prosecutors must discover the unwritten social rules, norms, and language of the profession and of their offices. Newcomers learn these expectations informally, whether through lunchtime chats or through careful observation of how veterans behave and speak. These informal instructions do more than simply define how a prosecutor acts; they define who a prosecutor is.

   Our theory of prosecution also explains how different dimensions of the role interact. The structure of a prosecutor's office helps determine or reinforce the professional identity of the attorneys who work there; that identity, we believe, has the capacity to powerfully shape the prosecutors' outputs, including choices about charges, dispositions, and relationships with police.

   By invoking the concept of office structure, we refer not to the physical edifice in which the prosecutor's office sits. (2) Instead, we have the social architecture of the workplace in mind: those alignments and routines inside the workspace that organize the staff to handle its caseload. When the chief prosecutor decides whom to hire, how much to pay them, how to divide the work, how to train newcomers, how to monitor the work, and how to respond when staff prosecutors exercise poor judgment, attorneys learn from these choices what it means to be a good prosecutor.

   In an effort to investigate this third dimension of criminal prosecution at the state level, (3) we carried out fieldwork in two metropolitan areas in the Southeast during the 2010 calendar year. We conducted 121 semistructured interviews with line prosecutors and supervisors in locations that we call the Metro County District Attorney's Office, the Midway County Solicitor General's Office, and the Ring County District Attorney's Office. In this first Article in a forthcoming series, we concentrate on a subset of forty-two interviews--those of the misdemeanor prosecutors and the drug prosecutors--because those attorneys perform comparable jobs in three different office environments and therefore illuminate the structural questions that concern us here. Our work is theory-generating, allowing us to formulate and sharpen theories about the culture of prosecutors' offices, the professional identities of those who work there, and the potential impacts of those professional identities on office outputs. (4)

   What we heard in those interviews sometimes surprised us, and at other times confirmed familiar assumptions about the prosecutor's work. 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.

   We also found that the prosecutor's basic orientation toward autonomy or the team produced ripple effects on his relationships with other lawyers and police. Attorneys with a more autonomous professional identity tended to report more interest in the work of prosecutors outside their own office; they also dealt with the police in a more self-assured way. Lastly, our data suggest that a prosecutor's professional identity might affect, or be reflected in, the outcomes she achieves in criminal cases and the consistency of those outcomes.

   The argument proceeds as follows. After briefly reviewing the standard two dimensions of prosecutorial behavior in Part II.A, we turn in Part II.B to the third dimension of prosecution--office structure. We introduce there our theory, which traces the connections between office structure, professional identity, and prosecutor outcomes. Part III describes our research methodology, as well as the three research sites for this study. In Part IV we present qualitative evidence from our research sites to support our hypothesis about the relationship between office shape and hiring preference and the professional identities of prosecutors. Part V considers the potential effects of the prosecutor's self-identity on the output of the office.

   By viewing prosecution through the lenses of social architecture and professional identity, we hope to make managers of prosecutors' offices more effective in shaping the work of their attorneys. Our analysis also gives journalists, academic commentators, and other observers a basis for evaluating prosecutors in systemic and policy terms, rather than second-guessing prosecution choices in particular cases. Ultimately, an appreciation of the effects of office structure can give the voting public deeper insight about the work clone in its name in the criminal courts.

   The effects of the third dimension are sometimes difficult to notice, particularly for legally trained observers who tend to look for explicit rules as behavioral guideposts. This Article thus provides readers with a new way of seeing the state prosecutor. It is not the only way: studies of...