(This is Part 8 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4, Part 5, Part 6, and Part 7 (admissions and prosecutors).)
As my earlier posts have made clear, that the NRC report does not really focus on prosecutors is disappointing, given the apparently outsized role they have played in driving up prison populations. As a result, the report’s policy recommendations do not target the real causes of prison growth. Given how generally understudied and under-regulated prosecutors are, this represents a truly lost opportunity.
Compounding this error is the fact that when the report does talk about prosecutors, it does so poorly. In this post, I want to examine the report’s analysis of the political incentives of prosecutors. The motivations it highlights are likely not the core ones driving prosecutor behavior, and it worth considering both why those factors aren’t so important and what some important ones could be.
The bulk of the report’s discussion of prosecutors is the following:
Incentives for supporting certain kinds of crime-related initiatives also tend to be misaligned across different levels of government. For example, it is relatively easy for local government officials to advocate increased sentence lengths and higher incarceration rates that state government officials are typically responsible for funding (including the building and running of state penitentiaries). Yet, despite taking hard-line positions on crime control, local governments often hire too few police officers (since cities and counties are responsible for paying nearly all local police budgets)….
In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences (Gordon and Huber, 2007; Huber and Gordon, 2004). In contrast, prosecutors and judges in many European countries are career civil servants who have evolved a distinctive occupational culture with a less punitive orientation, partly as a result of differences in legal training and career paths between the United States and European countries ….
As I noted in my earlier post, the first paragraph gives far too little attention to the quite-significant moral hazard problem that arises when a county official can spend unlimited state dollars; I won’t belabor that point here. It’s the second paragraph I want to turn to now.
The report argues that as local officials, prosecutors and judges are sensitive to local demands to be tough on crime. The only papers the report cites are those by Gordon and Huber, which look at judicial behavior
Comments
Great posting! Thanks for the info!
Posted by: PolyCouple | Sep 8, 2014 12:55:26 AM
Having spent several years in Germany studying German prosecutors and having recently published a book about them [The German Prosecution Service: Guardians of the Law], I don’t think we should dismiss outright some features of bureaucratic systems. The main positive lesson that I drew from German prosecutors is their reliance on group decision-making. Time and time again, as I travelled to different prosecution offices, prosecutors would frequently consult their colleagues in their charging and disposition decisions. Most importantly, with the exception of the drug prosecutors, most prosecutors do not consider a conviction or a long sentence to be a victory that will lead to a promotion.
Posted by: Shawn Boyne | Jun 8, 2014 11:11:57 AM
John, I’m really enjoying this series of posts. Thank you very much.
How much power do you ascribe to ideology (as opposed to incentives)? Could it be that, over the years, prosecutors themselves have become more gung ho about their work and this is motivating them to be more punitive?
Posted by: Hadar Aviram | Jun 4, 2014 12:46:20 PM