Prosecutorial regulation versus prosecutorial accountability.

• Author: Bibas, Stephanos

Introduction I. INSTITUTIONAL REGULATION OF PROSECUTORS A. Legislatures' Responses B. Judges' Review of Criminal Cases C. Bar Authorities' Rules and Discipline II. EXTERNAL PRESSURE BY STAKEHOLDERS A. Informing and Empowering the General Public B. Informing Victims and letting Them Participate C. Giving Defendants Appropriate Voice III. INTERNAL GOVERNANCE MECHANISMS A. Prosecutorial Office Culture B. The Structure of Prosecutors' Offices C. Prosecutors' Interned Office Policies D. Personnel Actions: Hiring, Firing, Promotion, Training E. Information, Evaluations, and Incentives CONCLUSION Introduction

No government official in America has as much unreviewable power and discretion as the prosecutor. Legislators are checked by other legislators, the executive's veto, judicial review, and voters. Governors and the President are limited by legislation, legislative funding decisions, judicial review, and voters. Judges face appellate review by multiple layers of courts, and some face reelection. Administrative agencies are constrained by judicial review and laws such as the Administrative Procedure Act (1) and Government in the Sunshine Act. (2)

Few of these forces meaningfully constrain prosecutors. They follow no Administrative Procedure Act, nor do they operate in the sunshine of public disclosure. While in theory the separation of powers should check prosecutors, in practice it does not. (3) Legislatures keep giving prosecutors more power, not less, by expanding overlapping criminal statutes and giving prosecutors more plea-bargaining tools. (4) Judges largely avoid interfering with prosecutorial decisions. They reason that juries will ultimately check charges, even though few cases make it to jury trials in a world of guilty pleas. Governors and Presidents exercise little or no control over line prosecutors' decisions.

In theory, prosecutors are beholden to the public interest or justice. These concepts, however, are so diffuse and elastic that they do not constrain prosecutors much, certainly not in the way that an identifiable client would. As I have argued elsewhere, prosecution is a low-visibility process about which the public has poor information and little right to participate. (5) District attorneys' electoral contests are rarely measured assessments of a prosecutor's overall performance. At best, campaign issues boil down to boasts about conviction rates, a few high-profile cases, and maybe a scandal. The advantages of incumbency and name recognition are also huge. Moreover, a district attorney's subordinates are unelected and often operate with remarkably little oversight.

The resulting dangers can be enormous. While prosecutorial discretion is "at the heart of the State's criminal justice system," prosecutors' "power to be lenient [also] is the power to discriminate." (6) Prosecutors have great leeway to abuse their powers and indulge their self-interests, biases, or arbitrariness. As I have argued elsewhere, prosecutors have personal and sometimes financial incentives to lighten their own workloads. (7) They are tempted to try a few strong or high-profile cases to gain marketable experience while striking hurried plea bargains in most other cases. They may be extremely risk-averse to protect their win-loss records, which further their employment prospects and political ambitions. (8) Thus, they may press their own agendas at the expense of victims and the public. (9)

The potential for abuse of discretion calls for more effective mechanisms to oversee and regulate prosecutors' conduct. Many, if not most, other government actors enjoy less power yet are subject to far more regulation than prosecutors are. The comparison suggests that prosecutors are the outliers and that some new regulatory mechanisms are likely to be worth the cost. (10)

While many scholars discuss prosecutorial discretion as a problem, most favor external regulation of prosecutors by other institutions. One strand of this scholarship, exemplified by James Vorenberg's work, favors legislation to restrict prosecutorial discretion ex ante. (11) Another strand endorses ex post review by judges and bar authorities of individual cases of prosecutorial misconduct. (12) Unfortunately, these external, institutional controls have proven to be ineffective. Legislation is too crude, and ex post review of individual cases is too narrow, to attack the deeper, systemic problems with patterns of prosecutorial discretion.

Instead of looking to external solutions, we should reconceptualize the problem. Prosecutors are agents who imperfectly serve their principals (the public) and other stakeholders (such as victims and defendants). (13) This agency-cost problem resembles corporate employees' temptation to shirk or serve their self-interests at the expense of shareholders, customers, competitors, and other stakeholders. This lens suggests alternatives to external, institutional solutions. Some involve giving voters, victims, and defendants more direct influence and providing them with the information that they need to monitor prosecutors' decisions. Another group of solutions draws on management literature to suggest ways to transform an office's structure, incentives, and culture from the inside. In short, institutional design is more promising than rigid legal regulation. Simply commanding ethical, consistent behavior is far less effective than creating an environment that hires for, inculcates, expects, and rewards ethics and consistency.

I have previously analyzed how opacity and insularity allow prosecutors to avoid serving victims and the public faithfully. (14) This Article discusses possible solutions to that problem, exploring checks that do or could regulate prosecutors or hold them accountable. Part I begins with external rules. Many commentators have argued that legislatures, judges, or bar authorities can and should regulate prosecutors more vigorously. Neither across-the-board legislation nor case-by-case review ex post, however, is well suited to address systemic concerns about prosecutorial discretion.

The remainder of the Article reframes the issue as a principal-agent problem that requires a two-step solution. The first step is to use pressure from principals to align the interests of the top agents (head prosecutors) with principals' own interests. Thus, Part II turns to external control by stakeholders. It holds out moderately more hope for giving voters, victims, and defendants better information and greater rights to participate. While these remedies are not panaceas, they are moderately promising ways to influence head prosecutors.

The second step is for top agents to align their subagents' interests with those of the principals, much as corporate managers motivate subordinates to serve customers and shareholders. In this vein, Part III considers internal structures, cultures, and incentives that prosecutors' offices could use to regulate themselves and finds them most promising. Leadership by head prosecutors could do more to create and shape office culture, values, norms, and ideals. Hierarchical office structure can promote internal consistency and make possible more procedural and substantive oversight. Prosecutors' offices should promulgate and publish more procedural guidelines to structure their internal review of cases. Internal substantive guidelines could harmonize prosecutors' substantive results. Office structure, recruitment, hiring, training, promotion, and tenure policies could do more to shape office culture. Pay structures and incentives could induce prosecutors to pursue goals beyond their own win-loss records. Finally, prosecutors could garner and use feedback from other prosecutors, judges, defense counsel, jurors, victims, and maybe the public. This Article concludes that voters, victims, defendants, and head prosecutors should do far more to encourage good behavior, guide prosecutorial discretion, and make the entire process more transparent and consistent.

1. INSTITUTIONAL REGULATION OF PROSECUTORS

   The few scholars who have focused on prosecutorial discretion as a problem have largely favored external, institutional regulation of prosecutors' offices. As this Part argues, that strategy is unlikely to succeed. Other scholars have previously noted isolated difficulties with implementing legislative, judicial, or bar regulation of prosecutors. Hardly any, however, have drawn broader conclusions about the merits of external versus internal controls. (15) The moral of the story is that institutionalized regulations are inherently blunt weapons, too crude and too sporadic to constrain prosecutors.

   Section A critiques proposals for legislation to rein in prosecutors. Legislators collude to maximize prosecutorial bargaining freedom and are not about to rein it in. Legislative oversight hearings, how ever, are perhaps more promising. Section B turns to judicial review and finds it ineffective in shaping prosecutors' behavior. Judges are complicit in prosecutors' plea bargaining. Moreover, their case-by-case review is poorly suited to policing broader, systemic concerns such as equality across cases, prosecutors, and jurisdictions. For similar reasons, Section C contends that bar authorities do not and cannot check prosecutors effectively. Simply calling for tougher enforcement of ethics rules will not help, as ex post, case-by-case review is not adapted to harmonize and change ingrained patterns of discretion.

   1. Legislatures' Responses

      The most natural response to a problem may be to exclaim that there ought to be a law against it. In that vein, legislation sometimes tries to cabin and constrain prosecutorial discretion. Albert Alschuler and Stephen Schulhofer, for example, recommend legislation to abolish plea bargaining or specify fixed plea discounts. (16) Several jurisdictions have heeded this call, enacting laws that ban plea bargaining or limit its scope or discounts. (17) James Vorenberg...