by David M. Reutter

Prosecutors are empowered with unparalleled and nearly unchecked discretion in making charging and plea-bargaining decisions. Their decisions have been called a “black box” for their inscrutability. A recent study casts some light onto the how and why of those decisions.

The role of prosecutorial discretion has been the subject of debate, but there has been little empirical study on the matter. CLN has previously explored the topic, highlighting how prosecutors often use their discretion in an abusive manner to impose trial penalties and to coerce the innocent into pleading guilty. [See: CLN, June 2018, p.30.]

The study, “Inside the Black Box of Prosecutor Discretion,” details the prior research on prosecutor decision-making, its approach for recruiting prosecutors to participate in the study, the findings of the study, and a discussion on those findings. It begins by noting the “fairness and justice critiques of prosecutors are plentiful,” and yet, “there has not been a focus in the scholarship on the variability of prosecutor charging or concerns about severity of charging by prosecutors.”

The three authors of this study—Megan S. Wright, Assistant Professor at Pennsylvania State College of Law; Shima Baradaran Baughman, Associate Dean and Law Professor at Utah College of Law; and Christopher Robertson, Professor at Boston University School of Law—bring critical and necessary insight to this topic.

While the Constitution limits variability on prosecutorial charging only where race, religion, or another arbitrary classification is raised, the American Bar Association (“ABA”) and National District Attorneys Association (“NDAA”) have issued changing standards that focus on “unwarranted disparate treatment of similarly situated persons“ and “uniformity … [to protect] the victim or accused from receiving substantially different treatment” from one office to another. But those standards have no teeth because disciplinary action related to prosecutorial charging decisions rarely occur.

Robust studies on prosecutor variability in charging do not exist, but some studies have found that with more centralized charging practices, there is less variability between prosecutors. Aside from guidelines by the ABA and NDAA, “[t]here is no national admonition to limit prosecutor charging when there is no discretion to do so.”

There is evidence of explicit guidelines to bring the most serious charge. For example, the U.S. Attorney Manual states that “a Federal prosecutor should initially charge the most serious, readily provable offense or offenses consistent with the defendant’s conduct.” On the other side of that coin, a 2003 memo from former U.S. Attorney General John Ashcroft says that “charges should not be filed simply to exert leverage to induce a plea.” However, the study found that some prosecutors do just that.

Research also indicates that junior prosecutors are more likely to bring the most severe charges. Ronald F. Wright and Kay L. Levine found in a 2014 study that young prosecutors may consider themselves “superheroes, ready to try any case on the docket,” while more seasoned prosecutors think of themselves as “arbitrators, negotiators, ‘BS meters,’ and advocates.”

Universal factors do not exist when it comes to charging decisions. Aside from the state statutes themselves, prosecutors may only be limited by internal standards of their individual office. Prior research indicates that prosecutors have some common factors and considerations when making a charging decision. Those include “the seriousness of the offense, the defendant’s prior criminal record, the victim’s interest in prosecution, the strength of the evidence, the likelihood of conviction, and the availability of alternative dispositions.” They may also include “the citizen’s education, vocational skills, employment record, family ties and responsibilities, community ties, and the socioeconomic status of the offender.”

A common reason for declining to lodge charges may be based on “practical considerations such as the triviality of the offense and/or the victim’s lack of interest in prosecution,” explained Angela J. Davis in a 2001 Iowa Law Review article titled, “The American Prosecutor: Independence, Power, and the Threat of Tyranny.”

The data for the study under review came from a survey to state and local prosecutors in 2017. The authors emailed 4,484 prosecutors, who were selected from one or two states in each of the nine U.S. Census Bureau regions. Of them, 542 prosecutors completed the survey. Most of the respondents were white men, with an average age of 46 years and 12.5 years as a prosecutor. The average office size was 35 prosecutors, and the most respondents came from the Mountain, Midwest, and South Atlantic regions.

The survey contained 23 questions with some follow up probes. Each prosecutor was provided two fictional police reports on a relatively minor crime. “In the vignette, a man in a train station was arrested for, in the words of one arresting officer, ‘yelling obscenities, stopping patrons for money, and brandishing a knife,’” the study’s authors wrote. “The man was emotionally distressed from a recent break up with his girlfriend and needed money for a train ride, but when no one gave him any money, he became more upset. One witness reported that the man, while holding a knife, had grabbed a woman’s arm after she refused to give him money, but did not hurt or threaten her. Although people at the train station were scared, no one was physically hurt. The man submitted to an arrest without incident.”

The respondents were provided sample statutes and sentencing guidelines from which to recommend various charges or no charges at all. They were asked “what monetary penalty or term of confinement they would recommend, if any, and the reasoning for their recommendation.” The open-ended questions were answered in a text box. Five closed-ended questions covered how they determine charges and plea bargaining decisions in their office, and another eleven questions asked about their office, jurisdiction, and demographics characteristics.

The results showed that 18 respondents declined to bring charges, but almost 80% of them brought multiple charges. The mean number of charges brought was 3.15, and the maximum number of charges recommended was 11 of the 16 possible charges.

There was one felony charge the respondents could select, and 16% opted to bring a felony charge. There was variation by region in who sought a felony charge. “Notably, the South Atlantic region prosecutors were the most likely to recommend a felony charge, followed by the Mountain region prosecutors,” the authors found.

While the vast majority of respondents recommended multiple charges, almost 60% recommended no monetary penalty. “All West South Central prosecutors recommended a monetary penalty.” Of those who sought a monetary penalty, “the recommended amount tended to be less than $500,” with a mean penalty of $247.21. One respondent sought a $5,000 monetary penalty.

The respondents were even less likely to recommend confinement, with over 70% recommending no confinement term. Of those who recommended confinement, “the recommendation tended to be less than 30 days in jail.”

The study authors found wide variance in how the respondents resolved the same case. While 18 respondents declined to bring charges, “the modal respondent imposed two charges, and some sought seven or more.” Similarly, while many respondents declined to seek a monetary penalty, the “modal respondent sought a monetary penalty of $500 or less,” and some demanded as much as $5,000. Likewise, many resolved the case without jail time, while others demanded a month and one sought two years.

The study then turns to the reasons the respondents gave for their recommendation. While many respondents described the crime as relatively minor, they still felt there was a necessity for punishment. Those who sought only “a monetary penalty focused on wanting to deter future bad conduct, but noted that jail was not warranted given that there was no public threat and that incarceration would be harmful to the offender.”

A midcareer South Atlantic prosecutor who recommended probation and a fine between $300-500 wrote, “I want something that takes it seriously that a person is possibly drunk and wielding a weapon but also an opportunity to take responsibility without facing the worst sentence.”

A Pacific prosecutor with 20 years of experience sought a $2,500 fine and wrote, “There needs to be some accountability, but no one was injured and I think the negative impact of a felony or jail sentence is disproportionate to the harm imposed by the defendant’s actions in this case. I think a large fine and suspended sentence are appropriate.”

Some respondents sought a fine to fund police work. Others said that exposing the defendant to incarceration “could actually do damage by exposing him to high risk individuals or jeopardizing his career through the period of incarceration.” Still others declined to prosecute, stating it would waste resources to prosecute a “pretty minor” crime. Some considered the defendant was having a bad day and noted that he was 28-years-old with no prior record.

Thefinancial state of the defendant was also considered. Some respondents felt a monetary penalty would harm the defendant because he obviously has no money because he couldn’t even afford a train ticket. Others noted that his poverty could result in failure to pay, which could lead to greater legal consequences than the act called for. One prosecutor felt a fine would be “onerous,” but did not consider the financial costs for the 10 days in jail, which was recommended, could be greater than the financial penalty if the defendant was employed.

The mental health and emotional needs of the defendant were considered by 222 respondents; 147 mentioned mental health when citing a reason for not seeking a financial or incarceration penalty. Counseling or treatment was cited by 147 respondents, and 29 others mentioned anger management. Some who sought no punishment wanted to connect the offender to services necessary for rehabilitation.

Of the 222 who mentioned mental health, “12 recommended a term of confinement, 10 recommended a monetary penalty, and six recommended both.” Despite evidence of mental health issues, some respondents thought confinement was appropriate because of the need for accountability.

One Midwest prosecutor recommended a 65-day term of confinement in a psychiatric facility, five years of probation, and a $500 fine. “He needs evaluation and treatment, but needs to learn the consequences of actions, he caused public fear to several people and was willing to touch another and brandish a knife,” he reasoned.

Some respondents found no evidence of mental health issues. One such Mountain region prosecutors sought 180 days in jail. Some who considered mental health varied on the types of punishment they recommended and in their perception of the defendant’s danger to the community.

While the majority felt jail was not appropriate, other respondents felt it was necessary to teach a lesson. They tended to recommend fewer than 30 days, with most opting for fewer than 10 days. Weekend detention was listed by a few respondents.

Plea negotiation was mentioned by 71 respondents when explaining their charging decisions and punishment recommendations. One West North Central region prosecutor said he would recommend a felony plea at the expense of dismissing the misdemeanors, so he could build a record to enhance the criminal history score if there was a future incident. Some respondents were willing to offer a plea to a lesser charge if the defendant could stay out of trouble for a period of time. Others considered the lack of a criminal history in offering deals. Several wanted to make plea offers based on the victim’s input.

Some respondents noted the plea process was best with flexibility via lesser charges or dismissal of charges. “When I screen for charges, I usually charge the maximum charges I can and then in resolving the case a lot of it will depend [on] input from the victim and also the defendant’s willingness to accept responsibility in regards to his actions and whether or not they have taken any steps beforehand to address the issue,” wrote a junior Mountain region prosecutor who recommended a suspended sentence and $500 fine.

While some felt that more serious charges provided flexibility later, some felt multiple charges was a waste of time. “I would charge all if not several of the offenses in order to have charges to dismiss in the negotiation of the plea,” said a midcareer South Atlantic prosecutor who recommended two years’ probation and a $1,000 fine. “I also tend to overcharge, because I can’t add charges later, but I can always dismiss charges any time.” Others felt more serious charges should be brought only if the defendant was uncooperative during plea negotiations.

“Overall, many prosecutors reported filing charges against defendant without the desire to have defendant serve that time, but to use charges as a negotiation tool or to build a criminal history,” wrote the study’s authors.

As to the general decision-making process, the study revealed that “prosecutors typically acted alone in charging and prosecuting the cases that came before them,” More specifically, “the vast majority of prosecutors (72%) made charging and plea bargaining decisions alone, and the majority (57%) even prosecuted the cases without any input from another prosecutor.”

Just over half of the respondents said they had internal guidelines that they were able to follow in the process of making charging decisions. While internal guidelines exist for most prosecutors, they rarely were mandatory, and the majority of offices did not provide specific guidance on severity or uniformity in charging. The respondents noted that guidelines were distinct for separate crimes and that they could depart from them, as long as they followed state statutes.

As to the information important to respondents’ decision making, about 75% selected: “severity of personal injuries, use of weapons, severity of property damage, suspect’s behavior, number of victims, presence of weapons, suspect’s prior convictions, age of victims, presence of illegal drugs, and use of illegal drugs.”

In the closing section of the study, the authors said that future research should look systematically at variation in prosecutors’ views on plea bargaining strategies. Further exploration into the causes in variability of sentencing is also needed. They concluded by noting the vastly different charges and sanctions proposed by the respondents, indicating that this study was a starting point for research into the black box of prosecutorial discretion.  

Source: UC Davis Law Review, the report can also be found online at papers.ssrn.com/sol3/papers.cfm?abstract_id=3893820

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