Prosecution in 3-D.

• Author: Levine, Kay L.
• Position: IV. Effects of the Third Dimension on Prosecutors' Professional Orientation through Conclusion, with footnotes, p. 1146-1181

4. EFFECTS OF THE THIRD DIMENSION ON PROSECUTORS' PROFESSIONAL ORIENTATION

   The structural variations among our research sites allow us to track the correlation between organizational shape, hiring preference, and prosecutors' professional identities in two settings: misdemeanor units and drug units. The moderately pyramid-shaped, newbie-oriented Metro office has both a discrete misdemeanor unit (located at the bottom of the pyramid and staffed mostly by newbies) and a discrete drug unit (located one level up). Midway is a flat office that employs veterans to prosecute a steady diet of misdemeanors, while Ring is a gently pyramidal, veteran-oriented felony office that has a discrete drug unit. In the discussion that follows, we compare comments of Metro misdemeanor prosecutors and felony drug prosecutors with comments of Midway misdemeanor prosecutors and Ring felony drug prosecutors.

   These comments first reveal that a prosecutor's tendency to think of herself as either a member of an organization or an autonomous actor correlates with structural conditions of her office, including shape and hiring preference. A prosecutor's orientation on the question of autonomy also plays out in her relationships with teammates, supervisors, the whole office, and the larger legal profession.

   1. THE DEVELOPMENT OF AN AUTONOMOUS OR TEAM SPIRIT

      The sociology of organizations literature suggests that individuals respond in predictable ways to socialization forces on the job. The three most common responses are rebellion (rejecting all organizational norms and values), creative individualism (accepting important norms and values but rejecting the less crucial ones), and conformity (accepting organizational norms and values uncritically). (89) Our interviews with prosecutors reveal that an employee's response to socialization forces is not entirely a matter of individual choice. Instead, the office's particular combination of shape plus hiring preference correlates with the degree of autonomy that the attorneys feel on both horizontal and vertical dimensions. By horizontal autonomy, we mean the degree of independence each prosecutor feels from his colleagues when it comes to making decisions on his own cases. By vertical autonomy, we mean the degree of independence each prosecutor feels from his boss (or supervisor) when it comes to making decisions on his own cases. Prosecutors who work in hierarchical, newbie-oriented offices will be inclined toward group values and low measures of autonomy on both scales; they internalize the perspective embedded in the Weberian bureaucratic model of the office (90) and exhibit a "custodial orientation" that prizes the organization's current values. (91) In contrast, veteran attorneys in flatter offices exhibit high levels of horizontal autonomy and at least moderate levels of vertical autonomy; they conceive of themselves and each other as independent agents, more prone to individualism and resistance. (92)

      Our three offices exemplify these tendencies. In both the misdemeanor and drug unit context, Metro prosecutors see themselves as members of a single organization unified by group values under the office leadership; Ring and Midway prosecutors present as independent contractors who happen to work in the same office. Metro prosecutors are less likely than their counterparts in Ring and Midway to acknowledge or to approve of resistance to office policies and are more deferential to supervisors. In Metro, even the attorneys with more experience appear more amenable to professional value formation from the leadership.

      Turning now to specifics in our data, we begin with a thick description of Metro, the office most inclined toward hierarchy and specialization, staffed mostly by newbies. We then discuss the opposite extreme, Midway, and save Ring for last, given its middle-of-the-road position on both structural variables.

      The team imagery emanating from Metro is palpable in the comments of our interviewees. Whether junior, midlevel, or senior, (93) male or female, Caucasian or non-Caucasian, the Metro prosecutors referred to themselves as members of teams and described their work lives and their social lives (94) as bound up with one another. (95) They display very low levels of horizontal autonomy in their professional decisionmaking.

      The team identity is manifest in the physical movements of the normal workday. The desks for all Metro misdemeanor attorneys are located in cubicles (not separate offices) on a single floor in the District Attorney's Office. They spend most of each day together across the street in the courthouse, coming and going at roughly the same time, while most felony attorneys spend at least two weeks out of every three working on pretrial matters in their own offices. (96) In addition, all of the Metro misdemeanor attorneys start every workday together in one room, sorting files and going over cases and current issues. They use these morning sessions to discuss, question, confirm, and otherwise monitor each other's decisions in individual cases. A misdemeanor prosecutor explained the reason for these discussions: "It's important that teammates have faith in you. And that they can know ... you're going to be in a position to do the work the correct way and ... make the right decisions." (97)

      Beyond having faith in each other, team members hope to become interchangeable with one another as a way to create stability and consistency in busy courtrooms marked by frequent staffing changes. The Misdemeanor Team is organized on a horizontal prosecution basis, such that various attorneys will handle a single case at different stages of the proceeding. (98) In addition to frequent prosecutor reassignments, there is no established roster of judges who staff the misdemeanor courtrooms. Hence, ensuring that every prosecutor on the team will handle the case in the same way eliminates the risk of variation that might otherwise occur with judicial rotation or prosecutor rotation.

      I think we all kind of feed off one another and [want to know that] ... every other person would do [the same] in the same situation. If they were in our shoes, that they would also try this case, that they would also offer this plea deal.... [T]here's about 20 of us on the misdemeanor team--and we all, I think we could all change rooms, in trial courtrooms, and all make the same decisions basically in the long run, and try the case to the same degree and skill. (99) The interchange among the attorneys on the team, each of whom brings a distinctive personal approach to the prosecutor's work, also expands the perspectives of everyone involved, creating a "think tank" environment that "opens up a lot of thoughts ... on how we should be working as a DA." 100

      More formal mechanisms to promote consistency and discourage horizontal autonomy operate in the Metro Drug Team. First, because drug cases are handled horizontally, the team members "roundtable" every case to make sure every prosecutor knows the relevant facts and criminal history and could appear on any case if asked. (l01) As one drug prosecutor reports, "what the higher ups want is consistency ... they want each team to be consistent among each other." (102) The Drug Team also stresses the importance of consistency by concentrating the "papering" decision (that is, whether to file a case in the first place) in the hands of just three attorneys, typically the most experienced on the team. (103) Lastly, the Drug Team employs a detailed case-tracking computer program, giving the team supervisor rich information about the choices made by each line attorney. (104) These combined techniques of team "self-monitoring" (105) make adherence to group norms a salient goal for each individual on the team. (106)

      "Structured assistance" (107) for new prosecutors in Metro goes beyond just team norms and expectations. Policies and rules, promulgated by the team supervisors and the Elected, simultaneously discourage both horizontal autonomy and vertical autonomy. For example, new Metro prosecutors receive a forty-page manual, updated routinely, which sets forth guidelines for misdemeanor court behavior and "defaults" for case resolutions (that is, standard plea offers). (108) Within this diverse group of office policies, a few amount to hard-and-fast rules, while others are more tentative. Metro lawyers learn pretty quickly that there is no room for discretion when it comes to the hard-and-fast rules (e.g., DUI "refusal" cases must never be bargained down). (109) Deviation will yield a reprimand and could ultimately lead to serious discipline, including loss of one's job, although such punishment rarely becomes necessary. When it comes to the looser rules, more flexibility is allowed as long as attorneys seek approval from the team supervisor in advance or offer a persuasive explanation after the fact. (110)

      Resistance to these policies is rare. When asked about employees' reluctance to follow office policies, Metro prosecutors had a hard time remembering any examples, and most opined that no one in the office would disobey general policies or buck direct instructions. (111) They told us that supervisors make themselves available to discuss employee questions about office policies, but at the end of the day, policies stand and attorneys must follow them out of respect for the organization. (112) As explained by Prosecutor 302: "[W]hen you agree to work here, you agree to abide by the policies. And if you don't like the policies ... then you should probably seek employment elsewhere."

      Attorneys on the Misdemeanor and Drug Teams also respond favorably to their supervisors because of their newbie status. As one supervisor puts it, "[t]hey don't have enough experience" to complain or to be attached to old ways of doing things. (113) When Drug Team members start to speak up regularly and to voice contrary opinions, the supervisor tells them jokingly that it's time for...