The Black Box

AuthorMarc L. Miller; Ronald F. Wright
PositionMarc Miller, Ralph W. Bilby Professor of Law, University of Arizona Rogers College of Law
Pages03

Marc Miller, Ralph W. Bilby Professor of Law, University of Arizona Rogers College of Law. Ronald Wright, Professor of Law and Associate Dean for Academic Affairs, Wake Forest University School of Law. We want to thank Rachel Barkow, Kathie Barnes, Stephanos Bibas, Darryl Brown, Samuel Buell, Jack Chin, Jennifer Collins, Julian Cook, Angela Davis, Brandon Garrett, Erica Hashimoto, James Jacobs, Vikramaditya Khanna, Wayne Logan, Michael O'Hear, J.J. Prescott, Daniel Richman, Kami Simmons, Kate Stith, and David Zaring for their comments on earlier versions of this Article. We also learned much from the participants in the Hoffinger Colloquium at New York University, the Empirical Legal Studies Conference, and faculty workshops at The University of Iowa College of Law, The University of Alabama School of Law, Florida State University College of Law, the Marshall-Wythe School of Law at the College of William and Mary, The University of Georgia School of Law, and Washington University School of Law. We would like to thank Stephanie Allen, Sarah Gotschall, Jeff Kuykendall, Daniel Moebs, Ishra Solieman, and Nathan Webb for technical and research assistance with this Article. We remain deeply indebted to former New Orleans District Attorney Harry Connick and his staff for their willingness to provide data and discuss the operation of that office; we also appreciate the cooperation and insights we have received from the staff and board members of the Prosecution and Racial Justice Project of the Vera Institute.

Page 127

Introduction

A society that holds, as we do, to belief in law, cannot regard with unconcern the fact that prosecuting agencies can exercise so large an influence on dispositions that involve the penal sanction, without reference to any norms but those that they may create for themselves . . . . [To] a large extent we have, in this important sense, abandoned law.

Herbert Wechsler (1962)1

Herbert Wechsler was wrong. Wechsler, the architect of the Model Penal Code, described prosecutorial discretion as the antithesis of law. Moreover, this was an idea with consequences, since he built his elegant substantive criminal code on the hope that the code could replace some of this discretion with more law. While acknowledging that some amount of discretion may be essential to the prosecutorial function, he asserted that "its existence cannot be accepted as a substitute for sufficient law."2

In the half-century since Wechsler wrote these words, scholars have magnified his concerns about prosecutorial discretion. Many scholars have expressed particular concerns about racial, gender, and other nefarious grounds for prosecution, often framing their concerns in the language of "selective prosecution."3 Another group of scholars has worried about "overcriminalization"-pointing to the increased range of choices available to prosecutors to respond to particular behavior and to the wider range of behavior subject to criminal charges as criminal codes have become bloated with new crimes.4 A third group has noted how changes in sentencing law, such as the use of sentencing guidelines and "three strikes" laws, have Page 128 increased the size and certainty of the consequences that flow from a prosecutor's charging choices.5

For those who see discretion as the opposite of law, its dominance in the prosecutor's office has ripple effects throughout the criminal justice system. The prosecutor's discretionary power overwhelms any efforts to improve the law elsewhere in the criminal process-in definitions of crimes, in limits on police power, in trials, or in judicial sentencing decisions.

Scholars' responses to a criminal justice world where what counts as law means so little have featured a call for greater external legal regulation. In particular, scholars have called for judges to review prosecutorial charging and plea-bargaining decisions, in the hope that judges can limit and legitimize the choices that prosecutors make.6 The judicial-oversight project, however, has failed, even for the subset of prosecutor decisions that are based on improper bias.7

Some scholars, recognizing this conspicuous absence of judicial oversight, have called for legislative review of prosecutorial decisions through hearings and standardized reports.8 Legislative control of prosecutors' choices also might occur through more targeted drafting of substantive criminal codes. But legislators, like judges, have never answered the calls for external regulation of the prosecutor's office, and the political Page 129 dynamics of American criminal justice make it very unlikely that they will do so in the future.9

This Article explores the power of internal regulation-efforts within the executive branch, and within individual prosecutors' offices, to control and legitimize prosecutorial discretion-to succeed where external regulation has failed. our thesis is simple but profound. We believe that the internal office policies and practices of thoughtful chief prosecutors can produce the predictable and consistent choices, respectful of statutory and doctrinal constraints, that lawyers expect from traditional legal regulation. Indeed, we believe that internal regulation can deliver even more than advocates of external regulation could hope to achieve.10

To test whether internal regulation is realistic, we must look inside the black box: the inner workings of prosecutors' offices. The very lack of external regulation makes such a view difficult, since the absence of controlling statutes or case law makes it possible for prosecutors to do their daily work without explaining their choices to the public.

An unusual alignment of the stars allows us to peer into the black box, enabling us to watch prosecutorial decisionmaking at work in the prosecutors' offices in a few major American cities. our first and most comprehensive view inside the black box comes from the New orleans District Attorney's Office.11 District Attorney Harry Connick, who ran the office from 1973 to 2002, instructed his attorneys to keep an unusually rich computerized record of their prosecutorial choices and reasoning, and he used the data for internal administrative purposes. The database recorded the history of each case as it moved through the office, and prosecutors indicated the reasons for their decisions at each turn in the road.

Additional insights about internal regulation of prosecutors come from Milwaukee, Charlotte, and San Diego, three cities participating in an innovative prosecutor-management project of the Vera Institute of Justice.12 Page 130 Each of these cities has generated summary data that allow us to reconstruct the reasoning of line prosecutors at key moments in processing criminal cases. The long-delayed arrival of the information age to prosecutors' offices allows us, at last, to understand more about the internal regulatory forces within those offices.

The first phase in our analysis of the internal regulation of prosecutorial power looked at the outcomes produced when chief prosecutors insist on a principled screening of cases.13 In this Article, we get behind the outcomes to look at the reasons for those decisions. In particular, we focus on the explanations that prosecutors give for declinations, which are the decisions by prosecutors not to prosecute alleged crimes that police officers present to the office.14 Declinations epitomize the black box: they remain hidden from all traditional legal review and test the capacity of our preferred strategy of internal regulation. What image do these declinations create of the day-to-day work of criminal prosecutors-reasoned judgments according to law or random choices according to individual predilection?

Knowing the end of the story will not ruin the telling of this fascinating tale: we find that declinations in New Orleans, Milwaukee, and elsewhere reveal an internal legal order at work. The standardized reasons that prosecutors give for their choices do not reveal much about the quality of their work in any given case, and their declarations lack the depth of reasoning that one might find in a judicial opinion. These brief statements of reasons, however, shed meaningful light on the work of prosecutors once we start to notice the patterns of reasons across many cases and in different crime categories. Page 131

The recorded reasons show the influence of substantive and procedural legal doctrines, the policy priorities of supervisors, and the evidentiary hurdles of proving criminal charges-all sources that one would expect to dominate in a system that respects the rule of law. Moreover, these patterned reasons reflect something more than individual prosecutors predicting legal outcomes and operating in the shadow of the law: they show prosecutors responding to social norms and living up to group expectations about what it means to be a prosecutor in that particular office.

This internal legal and social order in the prosecutor's office tells us something important and little noted about the interaction between law and "social norms." While many legal scholars have analyzed how social norms can override legal rules within private social...

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