Prosecutorial Discretion

Problems and Solutions

A commenter on my previous post pointed me at an article¹ by Glenn Reynolds on the problem of prosecutorial discretion. It inspired this post.

The problem he describes is the result of four facts about the current system for enforcing criminal law:

1: There are so many and so complicated legal rules that almost anyone can plausibly be charged with violating at least one:

Prosecutors themselves understand just how much discretion they enjoy. As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s Office for the Southern District of New York was to name a famous person—Mother Teresa, or John Lennon—and decide how he or she could be prosecuted:

It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like “false statements” (a felony, up to five years), “obstructing the mails” (five years), or “false pretenses on the high seas” (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences.

The, result, however, was inevitable: “prison time.”²

2: The combination of plea bargaining and the ability of a prosecutor to stack charges means that it may be in the interest of an innocent defendant to confess to a minor charge in order to avoid even a small chance of being convicted on one of multiple large charges.

3: Even if a defendant refuses to plea bargain and is acquitted, the process imposes large costs on him — the legal costs of his defense, the cost of a bail bondsman if he cannot afford to post bail himself, the cost of at least temporary, possibly extended, jail time prior to trial, and the reputational cost of being charged and tried.

4: A prosecutor has almost unlimited freedom to decide whom to prosecute and faces no substantial cost for prosecuting someone who is acquitted of some or all charges.

Combine those facts and it looks as though an unscrupulous prosecutor can impose substantial costs on almost anyone he wants at little cost to himself. In theory his power is limited, in some but not all contexts, by the need to get charges through the grand jury.

The effectiveness of this approach may be seen in the longstanding aphorism that a good prosecutor can persuade a grand jury to indict a ham sandwich. (Reynolds)

Solutions

The least likely solution to the problem would be to change point 1 above, simplify criminal law to the point where there were no crimes that a random innocent person could plausibly be charged with. Even if we could do that, as long as points 2-4 hold a prosecutor could impose costs by implausible charges against someone whom the people he was responsible to — the voters for an elected prosecutor, his political superiors for an appointed one — did not mind his prosecuting.

Point 2 could be changed by abolishing plea bargaining or restricting a prosecutor to a single charge. The former is not, under current circumstances, a plausible option. About 98% of criminal cases in the US end with a plea bargain, so abolishing the practice and changing nothing else would require an enormous increase in the resources devoted to cases.

Arguably this is a result of changes in criminal procedure over the past two centuries that greatly increase the time that it takes to try a case. John Langbein, in an article comparing the parallel development of the medieval law of torture and the modern practice of pleas bargaining,³ argues that both were the result of trying to impose on the legal system an unworkably high standard of proof. In the modern case that had the effect of greatly extending the length of the trial:

In eighteenth-century England jury trial was still a summary proceeding. In the Old Bailey in the 1730s we know that the court routinely processed between twelve and twenty jury trials for felony in a single day. A single jury would be impaneled and would hear evidence in numerous unrelated cases before retiring to formulate verdicts in all. Lawyers were not employed in the conduct of ordi- nary criminal trials, either for the prosecution or the defense. The trial judge called the witnesses (whom the local justice of the peace had bound over to appear), and the proceeding transpired as a relatively unstructured "altercation" between the witnesses and the accused. In the 1790s, when the Americans were constitutionalizing English jury trial, it was still rapid and efficient. "The trial of Hardy for high treason in 1794 was the first that ever lasted more than one day, and the court seriously considered whether it had any power to adjourn … By contrast, we may note that the trial of Patricia Hearst for bank robbery in 1976 lasted forty days and that the average felony jury trial in Los Angeles in 1968 required 7.2 days of trial time."   (Langbein)

We could, however, restrict a prosecutor to a single charge. That would not solve problems 3 and 4 but it would substantially reduce the cost that a prosecutor could impose on an innocent defendant and make easier changes for solving the other two problems.

In order to solve point 3, the cost to the defendant of a failed prosecution have to be reduced, perhaps by lowering or eliminating bond requirements, or shifted to someone else.  The obvious way of shifting them is to copy the loser pays (English) rule of some tort systems, reimburse the acquitted defendant for his costs at the expense of the government or government actors responsible.

The standard of proof in a tort case is preponderance of the evidence, commonly interpreted as a probability of guilt of more than 50%, but the standard in a criminal case is supposed to be “beyond a reasonable doubt.” It makes sense to hold the party who is probably guilty liable for the costs of the party who is probably innocent, given that someone has to pay them. It makes less sense to hold the prosecution liable for the costs of a defendant who is probably guilty but not beyond a reasonable doubt.

That suggests that the criminal system, like the traditional Scottish system, should have three possible verdicts. “Guilty” means guilty by the criminal standard, beyond a reasonable doubt. “Not Proven” means guilty by the civil standard, a preponderance of the evidence, but not by the criminal standard. “Innocent” means innocent by a preponderance of the evidence. A defendant ruled innocent gets his expenses, including the cost of time in jail awaiting trial, reimbursed, a defendant ruled “not proven” does not. Putting it in the language of the current system, the innocent defendant is suing the legal system for the costs it imposed on him and prevailing by the standard of proof appropriate to a civil suit.

One could, in the interest of symmetry, add a fourth verdict, “obviously innocent,” for a defendant whose innocence has been established beyond a reasonable doubt; if the defendant is found obviously innocent the prosecutor receives the punishment that the defendant would have received if convicted — for the crime of trying to convict an obviously innocent man. While that feels emotionally satisfying it has at least one serious problem: The defendant who is obviously innocent by the end of the trial may have been probably guilty at the beginning.

That suggests a milder version of the proposal: If  by the end of the trial it is ruled that the defendant was obviously innocent even when the trial began, the prosecutor must pay the defendant’s costs. If he is ruled to have been obviously innocent at some point prior to the end of the trial and the prosecutor did not then choose to drop the charges, the prosecutor is liable for costs after that point, the state for costs before it. In the case of stacked charges, the state or prosecutor is responsible for a share of the defendant’s costs proportional to the fraction of the charges on which the defendant was acquitted.

The Reverse Problem

Discretionary enforcement can be used to prosecute the innocent. It can also be used to protect the guilty. As I put it in my Law’s Order, describing one advantage of private prosecution in 18^th century England, “if criminal prosecution was controlled by the crown, the King's friends could get away with murder."

The point was first brought home to me back in 1969 after Chicago police opened fire on an apartment occupied by sleeping members of the Black Panther party, killing two and critically wounding four others. The police claimed that the Panthers shot first, the Panthers denied it. I commented to a friend that I trusted neither; she told me that the Panthers were offering tours of the apartment. I went. When you look at a bullet hole you can see which way the bullet was going by which way the splinters point; they all pointed in. No evidence was ever produced to support the police claim, making it a fairly clear case of first degree murder.

None of the police officers was ever charged with murder. Several, along with the Cook County state attorney responsible for the raid, were charged with obstruction of justice—not, in other words, with killing people but with lying about it afterwards — and acquitted. The surviving victims, however, sued, and the city, county and federal governments eventually settled for $1.85 million.

Criminal law is prosecuted, or not, by the state; the King’s friends can, in this case did, get away with murder. Tort law is prosecuted by the victim. This suggests that one solution to the problem of selective prosecution would be private prosecution of criminal law.

That was the  normal practice in 18^th century England, as discussed in one chapter of my most recent book:

Since any Englishman could prosecute a criminal case, the fact that an offense was approved of by the authorities was no guarantee that it would not be prosecuted. The point was demonstrated when a demonstration in favor of imprisoned radical John Wilkes ended with troops firing into the crowd and killing several people. The Wilkites responded by charging several of the soldiers, the magistrate who had ordered the troops to fire and the other magistrates present with murder.

The king had the power to pardon a convicted felon but doing so in too obviously partisan a way might provoke public outrage. In one notorious case two convicted murderers were pardoned, apparently because their sister’s aristocratic lovers applied political pressure on their behalf (“the mercy of a chaste and pious prince extended cheerfully to a wilful murderer, because that murderer is the brother of a common prostitute”).⁴ The Wilkites responded by raising money to fund an appeal of murder, a private criminal case. An appeal was a complex, expensive and difficult proceeding that had gone almost entirely out of use. It had, however, one large advantage:

“If the appellee be found guilty, he shall suffer the same judgement as if he had been convicted by indictment: but with this remarkable difference; that on indictment, which is at the suit of the King, the King may pardon and remit the execution; on an appeal, which is the suit of a private subject, to make an atonement for a private wrong, the King can no more pardon it, than he can remit the damages recovered in an action of battery.” (Blackstone 1884, Bk 4 Ch 23)

The appeal failed, as did the earlier criminal prosecutions of the soldiers and magistrates, but like them demonstrated the possibility of using privately prosecuted criminal law against malefactors supported by the government. (Legal Systems Very Different from Ours).

Later in the book, I discuss a potential downside of the approach.

In the U.S. at present, it is illegal for college students who are under twenty-one to buy, possess, or consume alcoholic drinks or for others to provide alcoholic drinks to them. Would it be a good thing for a student with a grudge against his ex-girlfriend or her new boyfriend to be able to have one or both arrested, charged with (depending on the state and circumstances) a misdemeanor or felony and, if convicted, jailed for several months, conceivably several years?

A possible compromise would be to permit private criminal prosecution but only of public employees and only for crimes committed in that role — on the theory that those are the crimes a public prosecutor is most likely to decline to prosecute.

That is at least more plausible than Mencken’s proposal. In a satirical discussion of the problem of controlling misdeeds by government officials he describes two solutions. The German solution was a special court for trying errant officials. It worked because

a Prussian official was trained in ferocity from infancy, and regarded every man arraigned before him, whether a fellow official or not, guilty ipso facto; in fact, any thought of a prisoner’s possible innocence was abhorrent to him as a reflection upon the Polizei, and by inference, upon the Throne, the whole monarchical idea, and God.

That approach would never work in America, since

even if they had no other sentiment in common, which would be rarely, judge and prisoner would often be fellow Democrats or fellow Republicans, and hence jointly interested in protecting their party against scandal and its members against the loss of their jobs.

Mencken therefore proposed an alternative better suited to American conditions:

… any [American citizen], having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient―and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got.”⁵

Post Script

A commenter on this post raised the idea of simply abolishing plea bargaining, which started me thinking about what it would take to make that a practical option. At present about 98% of cases are resolved by a plea bargain; if all of them got tried instead and nothing else changed we would have about fifty times as many trials, requiring the legal system to employ vastly more judges and lawyers, draft a lot more jurors. But other things could change or be changed: the length of trials or the number of indictments.

Langbein points out that in 18^th century England a single jury could try twelve to twenty cases in a day. It is hard to imagine trying cases that fast today. But, since twenty-first century America is much richer than eighteenth century England was, it should be able to afford longer trials, even if not as long as trials currently take.

There might be reforms to the present rules that would shorten trials substantially without increasing the error rate. Even if shortening trials did raise the error rate, convicted more innocent defendants or acquitted more guilty ones, only a few percent of defendants in the present system get a trial. The error rate of a shorter trial might still be lower than the error rate produced by the present system.

What about ways of cutting the number of cases? One is to legalize victimless crimes such as drugs, gambling and prostitution, which should cut the number of cases at least some; a quick google suggests that victimless crimes represent something between ten and fifty percent of criminal charges. Penalizing either the government or the prosecutor for charging people who turn out to be innocent, as I suggested above, should also reduce the number of indictments, in particular the number of indictments of innocent defendants.

Even without those changes, abolishing plea bargaining raises the cost to the prosecution of charging someone with a crime, since unless the defendant decides to plead guilty without the incentive of a reduced sentence there will be a trial and trials absorb prosecutorial resources. If charging people becomes more expensive to the organization that does it the number charged should go down.

Would some combination of such effects make it possible to abolish plea bargaining without greatly increasing the resources spent on trying cases? I do not know.

1. Ham Sandwich Nation: Due Process When Everything Is A Crime by Glenn Harlan Reynolds.

2. Tim    Wu,      American           Lawbreaking,      Slate     (Oct.     14,        2007,    8:03      AM), http://www.slate.com/articles/news_and_politics/jurisprudence/features/2007/american_lawbreak ing/introduction.html (on file with the Columbia Law Review). [quoted in the Reynolds article]

3. Langbein, John. 1978. “Torture and Plea Bargaining.” U. Chi. L. Rev. 46 (4): 3-22.

4. The quote is from Junius, the pseudonym of the author of a series of letters to the Public Advertiser.

5. Mencken, H.L. 1924. “The Malevolent Jobholder.” American Mercury (June): 156-159.