The Political Responsiveness of Violent Crime Prosecution
| Author | Ethan D. Boldt,Christina L. Boyd |
| Published date | 01 December 2018 |
| DOI | 10.1177/1065912918772676 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
research-article2018
Article
Political Research Quarterly
2018, Vol. 71(4) 936 –948
The Political Responsiveness of Violent
© 2018 University of Utah
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Crime Prosecution
https://doi.org/10.1177/1065912918772676
DOI: 10.1177/1065912918772676
journals.sagepub.com/home/prq
Ethan D. Boldt1 and Christina L. Boyd1
Abstract
Is a federal prosecutor’s decision whether to pursue violent crime charges political? While prosecutors frequently
assert their decision-making independence, their selection and operational constraints suggest a very different story.
We assess whether political factors related to the prosecution priorities of the president, Congress, and the local
public affect federal prosecutors’ decisions to pursue or decline charges in violent crime matters. To empirically
examine this, we utilize data from 89 U.S. Attorneys offices from 1996 to 2011. The results provide rich new insight
into when and why federal prosecutors’ decisions to pursue or decline prosecutions are driven by the preferences
of the president, Congress, and the local public. The findings also have important broader implications for the role of
political factors in a U.S. criminal justice system believed by many to be in crisis.
Keywords
prosecutors, violent crime, president, Congress, judiciary, principal-agent
In the early days of his administration, President Trump’s
may adamantly assert their decision-making indepen-
message was clear: the government must move swiftly to
dence, as political scientists, we have good reason to
stop violent crime. In his inauguration address, Trump
believe that political factors systematically affect the
decried “the crime and gangs and the drugs that have sto-
decisions of prosecutors to charge crimes. Prosecutors in
len too many lives and robbed our country of so much
the United States are selected through a political process
unrealized potential.” He went on to promise that “[t]his
(elections or appointments; Goelzhauser 2013; Nelson
American carnage stops right here and stops right now”
2014; Nelson and Ostrander 2016; Scott 2007). They
(Trump 2017). By February 9, 2017, Trump had signed
generally operate within the purview of the executive
three new executive orders directing the Department of
branch. They receive their funding from the legislature
Justice (DOJ) to aggressively target and reduce violent
and their authority to prosecute many crimes through
crime (Zapotosky 2017). While Trump’s position on vio-
laws passed by the legislative and executive branches.
lent crime may be clear, the potential effectiveness of his
And, of course, their prosecuted cases are decided and
rhetoric in changing the DOJ’s approach to targeting vio-
reviewed by a judiciary that is itself frequently political
lent crime in the United States is less so.
(L. Epstein and Knight 1998; Hettinger, Lindquist, and
We focus on one primary avenue where this question
Martinek 2004; Hettinger, Lindquist, and Martinek 2006).
is ripe for consideration: DOJ prosecutors’ decisions
The political pressure on prosecutors to address vio-
whether to bring or decline to bring charges for federal
lent crime in America is especially pronounced. For fed-
violent crimes. Traditionally, federal and state prosecu-
eral prosecutors, President Trump’s signaling of a desired
tors in this country assert that their charging decisions are
aggressive response to violent crime echoes the efforts of
independent and free from political pressure. After a
several other modern presidential administrations (Oliver
California police officer recently fatally shot an unarmed
2003; Oliver, Marion, and Hill 2016). For example,
homeless man, the Los Angeles County District Attorney
Richard Nixon famously ran a “law and order” campaign
announced that “[d]ecisions on whether or not to file
in which he placed the safety of Americans as a central
criminal charges [in this matter] will be based solely on
the facts and the law—not on emotion, anger or external
1University of Georgia, Athens, USA
pressure” (Mather 2016). And in discussing the potential
prosecution of Hillary Clinton, Attorney General Loretta
Corresponding Author:
Christina L. Boyd, Department of Political Science, University of
Lynch noted that “[w]e will review all the facts and all the
Georgia, 180 Baldwin Hall, 355 S. Jackson Street, Athens, GA 30602,
evidence and come to an independent conclusion as how
USA.
to best handle it” (Goldman 2016). While prosecutors
Email: cLboyd@uga.edu
Boldt and Boyd
937
issue. When accepting the nomination of the Republican
U.S. Attorneys “sit at the center of the federal prosecu-
Party in 1968, Nixon pledged that he would direct a new
torial machine” (Whitford 2002, 11). In this role, they are
Attorney General to “launch a war” against “merchants
responsible for making many pivotal decisions, each of
of crime and corruption in American society” (Nixon
which is saturated with discretion. These discretionary
1968). Congress has also devoted considerable attention
decisions include, for example, whether to prosecute or
to reducing crime in America, passing major legislation
decline prosecution, what charges to bring, whether to
such as the Violent Crime Control and Law Enforcement
argue against bail, when to offer a plea bargain, and what
Act of 1994 and maintaining oversight by holding more
sentence to seek (e.g., Howard et al. 2000). This high
than a hundred hearings on violent crime since 1980
degree of prosecutorial discretion and independence has
(Baumgartner and Jones 2013). The American public also
hardly gone unnoticed, with scholars noting that U.S.
expects prosecutors to prioritize the battle against violent
Attorneys have “historically prosecuted the nation’s laws
crime. Despite falling national crime rates in recent years,
in a largely unfettered environment” (Whitford and Yates
nearly 70 percent of Americans polled believe that crime
2009, 116), that they hold “a degree of autonomy and
is actually rising (McCarthy 2015). Given these consider-
independence from the department perhaps unmatched
ations, prosecutors are incentivized to pursue violent
by any other field service in the federal government”
crime on the behalf of their political principals and con-
(Eisenstein 1978, 11), and that they operate in “splendid
stituents. Consequently, violent crime has become a cen-
isolation” (Seymour 1975).
terpiece of federal prosecution, making up roughly 20
Among their many decisions, U.S. Attorneys hold vast
percent of federal criminal case filings annually (United
discretion in deciding whether to pursue or decline pros-
States Attorneys’ Office 2015).
ecution.1 Pursued prosecutions proceed forward to a
In this study, we examine the decisions of federal
grand jury,2 an information, or criminal complaint and, in
prosecutors to charge or decline to charge criminal vio-
most cases, a plea bargain, petit jury, or bench trial3;
lent crime matters. We anticipate that federal prosecu-
declined prosecutions, or declinations, disappear. No
tors (U.S. Attorneys) are incentivized to be responsive
charges are advanced, and suspects face no further pro-
to the violent crime prosecution priorities of the presi-
ceedings or consequences.
dent, Congress, and their local public. Using charging
U.S. Attorneys are aided by a staff of career (nonap-
data made available by the DOJ from 1996 to 2011, we
pointed) Assistant U.S. Attorneys but the “sole responsi-
examine the effects of these political actors’ signals and
bility whether to initiate or decline prosecution” (Whitford
preferences on the decision whether to prosecute violent
2002, 11) rests with the U.S. Attorney in the district (see
federal crimes such as murder, assault, bank robbery,
also Seymour 1975). While a federal prosecutor is
unlawful possession of firearms and explosives, arson,
directed to “commence or recommend Federal prosecu-
kidnapping, and domestic violence. As our empirical
tion if he/she believes that the person’s conduct consti-
results reveal, these political constraints play a substan-
tutes a Federal offense and that the admissible evidence
tively strong role in explaining many prosecution deci-
will probably be sufficient to obtain and sustain a convic-
sions. The analysis also provides important broader
tion,” prosecution can be declined for a variety of nonevi-
insight into prosecutors’ agenda setting decision making
dentiary reasons including that “[n]o substantial Federal
for a U.S. criminal justice system believed by many to
interest would be served by prosecution” (U.S. Attorneys’
be in crisis for its treatment of critical issues such as
Manual §9-27.220). The “no substantial federal interest”
race, punitiveness, drugs, criminal sentencing, over-
rationale for declination is broadly defined to include fed-
crowding in prisons, and beyond (Gibson 1978; Hurwitz
eral law enforcement priorities, the nature and serious-
and Peffley 2005; Nelson 2014; Peffley and Hurwitz
ness of the offense, and the deterrent effect of prosecution,
2010; Tiede 2009).
among other factors (U.S. Attorneys’ Manual §9-27.230).
In addition, there is no formal oversight mechanism in
Federal Prosecutors and Declinations
place for individual federal prosecutorial decisions to
pursue or...
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