Promoting Democracy in Prosecution

• Publication year: 2021

PROMOTING DEMOCRACY IN PROSECUTION

Russell M. Gold(fn*)

Abstract: Voters were meant to check prosecutors' decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters' lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways.

To reinvigorate the political check on prosecutors, this Article proposes requiring state and local prosecutors to disclose costs of all prosecuted cases and all cases not prosecuted in which an arrest was made and sufficient evidence existed. Such disclosures would sweep broadly to include prosecutors' wages, public defense costs, and incarceration costs in cases resulting in a conviction. Voters would then have concrete, monetized evidence of prosecutorial priorities. This greater information flow would allow voters, through the ballot box, to meaningfully supervise their prosecutors' exercise of delegated sovereign authority. Knowing that voters wield this information, prosecutors would then internalize this externality by taking these previously disregarded costs into account when they determine whether to charge crimes, what crimes to charge, and what sentences to recommend. Creating a mechanism that urges prosecutors to consider this broader set of costs would promote a more socially efficient outcome. Finally, this Article considers what an efficient allocation of prosecutorial resources might look like. It postulates that many constituencies would rather spend less on small-scale drug prosecutions to save cash-strapped state budgets.

INTRODUCTION..................................................................................70

I. THE EVOLUTION OF PROSECUTORIAL DISCRETION AND PROBLEMS OF DEMOCRATIC ACCOUNTABILITY.....75

A. History and Evolution of Prosecutorial Discretion................75

B. Voters' Lack of Information..................................................78

C. Problems Caused by Lack of Information..............................79

D. Other Mechanisms of Democratic Accountability Fail to Control Prosecutorial Discretion............................................87

II. MANDATORY COST DISCLOSURE AS A MEANS OF ENHANCING PROSECUTORIAL ACCOUNTABILITY............91

A. Prosecutorial Discretion Is Necessary and Beneficial............91

B. Contours of Mandatory Cost Disclosures..............................94

C. Costs of Cost Disclosures.......................................................98

D. Distinguishing Previous Proposals.........................................99

III. IMPLICATIONS OF MANDATORY COST DISCLOSURES ... 102

A. From Disclosure Reports to the Voting Booth..................... 102

B. Efficiency and Sovereignty Improvements.......................... 104

C. Envisioning Practical Results............................................... 112

CONCLUSION..................................................................................... 123

INTRODUCTION

State budgets are in crisis, and state prisons are a big reason why. As of 2009, the total number of inmates in state prisons and local jails across the nation reached nearly 2.2 million.(fn1) State inmates cost significant sums of money-figures reach as high as $62,595 per inmate per year.(fn2) One 2008 study estimated that state prisons in the United States cost more than $44 billion every year,(fn3) including $8.8 billion in California alone.(fn4) Neither the $44 billion figure nor the $8.8 billion figure includes spending to house three-quarters of a million people in local jails.(fn5) These staggering figures prompt the question: would a well-informed populace(fn6) choose to incarcerate so many at so high a cost?(fn7)

Some responsibility for these massive prison costs rests with the charging decisions of local prosecutors.(fn8) Locally elected officials and their employees make these charging decisions while wielding broad discretion meant to be exercised in the public interest. These officials must stand for election to preserve the people's check on that broad discretion. But that check no longer functions properly because voters lack the information necessary to meaningfully evaluate their prosecutors' decisions. The absence of a political check poses problems of inefficient resource allocation and divested democratic sovereignty.

Because prosecutors act on the public's behalf, their decisions should reflect their constituents' preferences. The efficiency of their decisions should be judged by the social costs and benefits to their constituencies. Thus, an efficient allocation of prosecutorial resources is one in which prosecutions are brought only when their marginal social benefit to a prosecutor's constituency is equal to or greater than their marginal social cost to that constituency. But voters' lack of information regarding how prosecutors spend public funds (and the priorities that information demonstrates) causes an inefficient allocation of prosecutorial resources.

Lack of a meaningful political check on prosecutors diminishes popular sovereignty.(fn9) Prosecutors rarely face electoral opposition.(fn10) In the rare contested election, campaigns focus on a few high-profile cases rather than address genuine prosecutorial priorities or articulate alternative visions for prosecution.(fn11) Voters' choices of candidates in such elections hardly fit the "sophisticated version of the majoritarian conception" of democracy that requires a well-informed populace with opportunity to deliberate.(fn12)

More abstractly, sovereignty also suffers because a decision not to prosecute when cause exists and resources are available embodies an essential aspect of sovereignty.(fn13) Such a decision exempts someone from the purview of otherwise applicable law-a decision at the heart of sovereignty.(fn14) In a democracy, sovereignty rests with the people. Because voters lack information about the full costs of prosecution, however, they cannot meaningfully check their prosecutors and thus lose ultimate sovereign authority over prosecutorial decisions.(fn15)

Unlike many previous articles and books that have quarreled with the breadth of prosecutorial discretion,(fn16) this Article does not propose a new mandatory constraint on which cases prosecutors can or must prosecute but instead proposes strengthening the intended political check. This Article takes issue with the banality of prosecutor elections and offers a specific proposal to improve the metrics of prosecutorial performance.(fn17) It argues that specific information should be provided to voters and challengers in prosecutor elections to fix the information deficit that prevents accountability in the office of the prosecutor.(fn18) Prosecutors should be required to disclose the full panoply of costs the public bears for each case that was or could have been prosecuted.(fn19) Such disclosures would include expenditures on prosecution, public defense, and incarceration.(fn20) Also unlike previous scholarship, this Article examines the problem of prosecutorial accountability in terms of economic efficiency, revealing externality problems that require mandatory cost disclosure legislation to achieve optimality.

When voters see the cost side of the prosecutorial efficiency calculus, they can consider whether their tax dollars are being properly spent. Knowing that voters will have the information they need to make their own judgments about prosecutorial efficiency, lead prosecutors who want to keep their jobs will be forced to consider previously overlooked costs and move toward a more socially efficient allocation of prosecutorial resources. Line prosecutors who work for lead prosecutors will do the same lest they be fired or their bosses voted out.(fn21)

To perfect democratic control over prosecutorial discretion and to efficiently allocate prosecutorial resources, state and local prosecutors should be required to disclose total government expenditures or estimated expenditures for each prosecution. Prosecutors should also be required to disclose what charges they brought in each case or, in cases in which the police made an arrest but prosecutors opted not to proceed, what charges they could have brought.(fn22)

Part I of this Article briefly explains the relevant history of locally elected prosecutors and the current state of prosecutorial discretion. It further discusses the economic-efficiency and sovereignty problems resulting from voters' lack of information about this discretion. Lastly, Part I discusses the intersection of voters' political check on prosecutors with other democratic checks in the criminal justice system.

Part II proposes a mandatory disclosure regime to increase the flow of information between prosecutors and the public they serve. It also acknowledges the costs associated with this proposal and situates the proposal in the context of previous...