Recasting prosecutorial discretion.

• Author: Misner, Robert L.

Decision-making in the criminal justice system at the state level is entrusted to a myriad of elected and appointed officials who often act independently of one another. The great majority of the decisions made by the various officials are effectively unreviewable either through judicial or administrative processes.(1) In theory, the electorate holds decision-makers responsible for their actions. However, because of the current diffusion of responsibility, the electorate cannot easily scrutinize the actions of any one official or hold that official independently accountable for the successes or failures of the entire system. In fact, no one is currently held accountable for the successes or failures of the criminal justice system. One result of the diffusion of responsibility is that citizens do not believe that the criminal justice system is responsive to their needs.(2) Citizens do not feel safe despite the fact that the rate of imprisonment has skyrocketed nationally in the past ten years.(3)

In the past thirty years, the diffusion of responsibility has begun to abate and power has increasingly come to rest in the office of the prosecutor. Developments in the areas of charging, plea bargaining, and sentencing have made the prosecutor the preeminent actor in the system.(4) The centralization of authority in the prosecution is a development necessary for a coordinated and responsive criminal justice system in which the prosecutor will ultimately be held accountable to the voters for the successes and failures of the system.

Previous practices which gave to each sentencing judge the authority to determine sentencing policy on an ad hoc basis through indeterminate sentences, open-ended sentencing statutes, and uncontrolled parole eligibility resulted in unacceptable sentencing disparities, overcrowded prisons, and indiscernible sentencing policies, with no apparent impact upon the crime rate.(5) The individualized sentencing policies of various judges cannot be woven into a single policy of law enforcement.(6) Because courts cannot mold an effective system of law enforcement, and because legislatures are unsuited to the daily implementation of broad policy, the time has come to encourage prosecutors to fashion local policies of law enforcement to suit the current needs of their communities. But before there can be responsible policy-making by the prosecutor, the prosecutor must be made responsible for the efficient use of finite prison resources.

The current flaw in the evolving power of the prosecutor is the failure to force her to face the full cost of prosecutorial decisions. In most jurisdictions, county prosecutors use local finds to operate their offices and therefore, prosecutors must be concerned about the cost of prosecution.(7) But because prisons are operated with state funds,(8) effecting a "split-funding" of the criminal justice system, most prosecutors need not directly consider the availability of prison space or prison resources when making charging, bargaining, or sentencing decisions.

The result extends beyond the status quo of overcrowded prisons and ever-bloating prison budgets. The result is a system in which the local prosecutors effectively dictate the level of spending that the state legislature must maintain. It is the prosecutor who is most instrumental in determining the number of new prisoners who must be housed in state prisons. If the legislature refuses to write a blank check for the prison system, often the prisons must release persons who have not completed their sentences(9) to make way for new prisoners or face the threat of federal court intervention.(10) The release of prisoners through the backdoor has resulted in an increase in the number of persons who are returned to prison after release.(11) The backdoor release policy is also apparently a source of great consternation for the public.(12)

As a result, the electorate does not have one official to whom it can look for leadership. Furthermore, the prosecutor has little incentive to create prosecutorial guidelines, to become an active participant in crime prevention programs, or to find less costly means of punishment.

The thrust of this Article is to attempt to find a mechanism for tying the exercise of prosecutorial discretion to the availability of prison resources. Because of the great variations in the size, complexity, and state constitutional and statutory bases of prosecutors' authority from state to state,(13) implementing details of any proposal are unlikely to be wholly uniform. However, for many jurisdictions, particularly large urban jurisdictions, it is possible to outline a general proposal: a state agency must make a determination of the amount of prison space available for the upcoming fiscal year. Based upon past practices, demographic projections, and other relevant factors, available prison resources will be allocated to each prosecutor for use during the next year. Through charging decisions, plea bargains, and sentence recommendations, the prosecutor will set criminal law enforcement policy within the local jurisdiction in order to make the most effective use of the resources allocated to the prosecutor's office. If the prosecutor uses fewer resources than allocated, the savings would be disbursed to the county. If the prosecutor requires more resources than allocated, the county must use local funds to purchase additional prison space either from the state or another jurisdiction. It will be incumbent upon the prosecutor, with the assistance of the state allocation agency, to correct data and justify the use of resources to the electorate. The electorate must then decide whether the prosecutor's enforcement policy and use of resources have met the demands of the people. It is hoped that the responsibility centered in the prosecutor will make for a more enlightened review by the voters.

This proposal, which retains the clear historical preference for local control of crime enforcement,(14) will not necessarily lead to fewer prosecutions or smaller prison populations. The proposal returns budget choices to the state legislature while making the local prosecutor more responsible to the electorate. However, the proposal does not require the abandonment of current attempts at sentencing reform, such as sentencing guidelines. In fact, the proposal requires a high degree of certainty in sentencing - the prosecutor must be able to predict what a conviction will cost in terms of available prison resources. Sentencing reform, to date, has served to channel the discretion of judges and releasing agencies such as parole boards, but sentencing reform has not attempted to guide prosecutorial discretion. The proposal accomplishes prosecutorial control through a mix of financial accountability and voter review.

Once the mechanism for tying the exercise of prosecutorial discretion to the availability of state prison resources has been created, other changes might be forthcoming. For example, once the prosecutor has the incentive to develop precise guidelines for the operation of the office, the state legislature may deem it appropriate for local prosecutors to create the guidelines for state administrative rule-making procedures that afford an opportunity for public comment and discussion. Prosecutors may become more creative in developing programs to strike at the core roots of crime and center on issues of crime prevention if it becomes economically and politically expedient to do so. The results of these experiences might be shared from jurisdiction to jurisdiction.

This Article first presents a snapshot of crime and sentencing in the United States in order to emphasize that the economic stakes require a more responsible process for making public policy choices in these areas. The discussion then turns to a description of the offices of the local prosecutor with an emphasis on the preeminent role that the prosecutor has assumed in the criminal justice system. Criticism leveled at the office of the prosecutor has accomplished very little. The time has come to accept the fact that the due process approach of ordering prosecutorial discretion has little support, as witnessed by the breadth of discretion permitted to the prosecution by both the judicial and legislative branches of state governments. Consistency and fairness are more likely to result from economic restraints and voter review than any attempt to place judicial controls upon the exercise of prosecutorial discretion. Therefore, in the final section, this Article proposes an outline for tying the exercise of prosecutorial discretion directly to the availability of prison resources.

2. Reality and Public Perception of Crime

   The detection, prosecution, and punishment of crime is an expensive business. In 1992, more than 16,000 city, county, and state law enforcement personnel.(15) reported that 14,438,191 "crime index offenses" had been committed in their jurisdictions.(16) These agencies reported a 21% overall clearance rate - a rate that has remained constant for the last ten years.(17) Approximately 2.9 million arrests were made by these law enforcement agencies in 1992.(18)

   In March 1993, the United States Department of justice published its analysis of sentencing in state courts for 1990, noting that state courts reported 829,344 felony convictions for that year, up from 583,000 in 1986.(19) The convictions resulted in 46% of persons convicted sentenced to prison, 25% sentenced to jail usually for a year or less, and 29% sentenced to probation.(20) In 1986, drug traffickers accounted for 13% of all felony convictions in state courts. By 1990 that number had grown to 20% of all state felony convictions.(21) The percentage of drug trafficking convictions receiving a state prison sentenced increased from 37% in 1986 to 49% in 1990.(22) But increases in prison population were not solely due to increased numbers of convicted drug traffickers...