Prosecutorial Discretion,Drug Case Selection,and Inequality in Federal Court

Abstract

In this article, I explore variations in prosecutors’ discretionary case selection practices by drawing on findings from a comparative field research project of drug prosecutions conducted in four federal districts. Using data from a series of in-depth interviews with legal actors in each district, I develop a typology of the kinds of drug cases brought in my sample districts, explore the logics underpinning their selection, and examine the potential impact of selection practices on racial inequality in drug caseloads. Findings elucidate the local variations in logics and practices that are nonetheless shaped by broader ideologies and structured incentives that encourage certain types of prosecutions. Prosecutorial discretion at the case selection stage also plays an important role in how cases are adjudicated, which is often closely linked to the logic underpinning the choice to file.     

Examining Prosecutorial Discretion in Federal Criminal Cases: Legal and Extra-Legal Determinants of Declination and Charge Change Decisions

Abstract

From 2000 to 2010, the federal criminal caseload increased roughly 50% with a large portion of this increase attributed to the rise in immigration prosecutions. These changes coupled with recent Supreme Court decisions rendering the guidelines advisory have renewed calls for research examining prosecutorial discretion, particularly with respect to the influence of legal and extralegal factors on charging and bargaining decisions. This study utilizes data (2002–2010) from the Federal Justice Statistics Program database housed within the National Archive of Criminal Justice Data (NACJD). More specifically, the current research examines prosecutorial decisions to decline to charge federal arrestees and to make any changes to the charge from the arresting offense. Results from the multilevel, multivariate models reveal that both extra-legal and legal factors were influential of these decisions. Disaggregated models also revealed considerable variation across different offense types. Finally, districts with higher caseloads had lower odds of a prosecutorial declination and charge change.     

A higher bar: Institutional impediments to hate crime prosecution

Why are hate crime cases so rarely prosecuted? Most states and the federal government have hate crime laws on their books, yet available data indicate few prosecutions in most jurisdictions. Drawing on case files and interviews with police and prosecutors in one jurisdiction, three institutional impediments to hate crime prosecution are identified: evidentiary inflation, by which law enforcement uses a higher burden of proof than what is required by statute; loose coupling between police departments and prosecutors' offices; and cultural distance between law enforcement and victims. Findings also reveal that advocacy groups and media can successfully increase the visibility of cases and draw the attention of prosecutors. The findings align with aspects of legal endogeneity theory and enhance our understanding of the role of organizations in constructing the meaning of law. The results also help explain why some laws are rarely enforced, even when they have support from key personnel in an organization.     

Prosecutors' Discretionary Use of the Grand Jury to Initiate or to Reinitiate Prosecution

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors' use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors' practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors' case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors' special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors' power to reinitiate.     

Comparing Justice and Labor Department lawyers: ten years of occupational safety and health litigation

Federal regulatory programs are strongly influenced by the outcome of litigation seeking to challenge or to enforce those programs. Competition exists between the Department of Justice and numerous federal agencies for control of that litigation. This article proposes several measures for comparing litigation conducted by the Justice Department with that done by the agency whose program is being-litigated. It then uses case data to compare the Justice Department's and the Labor Department's handling of litigation under the Occupational Safety and Health Act from 1972 through 1980. The findings show relatively little difference attributable to the identity of the litigator in the types or numbers of cases brought, the appeal rates, or the success rates. This suggests that further research, including other measures of difference, are needed to discern whether who controls the litigation matters as much as theory predicts it might and the lawyers involved believe it does.     

Qui tam claims: threat to voluntary compliance programs in health care organizations

The Department of Justice (DOJ) reports that after violent crime, health care fraud is the department's top priority. The number of health care fraud investigations pending at the DOJ increased from 270 cases in 1992 to more than 4,000 in 1997. The DOJ's primary weapon in prosecuting health care fraud is the federal False Claims Act (FCA) of 1863 (31 U.S.C. secs. 3729-3733). Almost unique among federal antifraud provisions, the FCA may also be used by "private prosecutors" to file lawsuits on behalf of the federal government charging organizations with submitting false claims to the government. The FCA rewards such whistle-blowers with a share of any resulting recoveries as a bounty and protects them from discharge for filing false claims lawsuits against their employers. It also requires defendants to pay the costs and attorneys fees of successful claimants. Although the private "bounty hunter" features of the FCA data back to the Civil War, these so-called qui tam claims were nearly dormant until 1986, when Congress amended the FCA to revive their use. Following the 1986 amendments, and paralleling the rapid increase in federal reimbursements for health care costs, private qui tam claims have far expanded beyond their traditional purview of defense contracts into the field of health care. By 1997, health care providers were the targets of 54 percent of the 530 private qui tam lawsuits field that year.     

Empirically enhanced reflections on 20 years of rape research

Using PsychInfo review of rape and sexual assault publications, the period of greatest fertility coincided with the establishment (1975) and demise (1987) of the National Center for the Prevention and Control of Rape. To document what has been learned and when, the era in which new rape concepts entered the literature is summarized and important developments highlighted. Then, new investigations that are urgently needed are elaborated. The author expresses concern that current federal investment is insufficient to sustain and expand a science workforce adequate to the tasks ahead. Since 1995, more than 1 billion US dollars have been awarded to prosecutors, law enforcement, and community agencies to assist victims of violence. In contrast, between 1996 and 2003, only 14 of 178 (7%) of investigator-initiated grants funded by the Department of Justice and the Centers for Disease Control and Prevention for violence against women had titles pairing the word sexual with assault, violence, abuse, or rape.     

Prosecuting 'Gross' Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service

This article examines prosecutions of health care professionals for gross negligence manslaughter following fatal errors committed in the course of their work. Unease has long surrounded the use of 'gross negligence' as a form of criminal liability, and particularly as it applies to health care professions operating in high-risk settings. The recent dramatic rise of such prosecutions calls for a closer understanding of the processes by which important prosecutorial decisions are made. In particular, this calls for an investigation into the exercise of discretion by prosecutors in interpreting the loosely defined and contested concept of gross negligence. This article analyses data obtained from a statistical analysis of 'medical manslaughter' cases and also from interviews with crown prosecutors. Discussion of the main findings leads to the conclusion that the offence of gross negligence manslaughter is incapable of any objective and fair measurement and ought to be abolished.     

Plea bargaining: Its pervasiveness on the judicial system

The proposed standards of the American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals are expressed in an ideal perspective, compared with the reality of plea bargaining use by prosecutors. Fifty-five prosecutors were randomly selected from four countries in two states, and a standardized questionnaire was administered to the subjects. The majority of the sample indicated an essential need for plea bargaining to administratively ensure justice in the criminal courts. The American Bar Association maintains that administrative efficaciousness is a minute consideration in justifying plea bargaining as a legal institution. Standards proposed by the federal Task Force on Courts contend that plea bargaining is an unnecessary adjunct to the formal legal process. Either of the proposed standards would, if adopted, definitely activate participant roles in a formally operated legal environment.     

Precursor Crimes to Terrorism and the Local Prosecutor's Role in Disruption

Much of the discussion of terrorism prosecution focuses on the federal judicial system or the use of military tribunals. The passage of state anti‐terrorism legislation in response to September 11, 2001, raises the issue of what role local prosecutors might play in responding to terrorism. Of particular interest is the role that local prosecutors have in identifying offenders who have committed crimes that may be precursors to terrorism and how they gather and share information. Using data from a survey of the 112 largest prosecutors’ offices in the country and information gained from case studies, this study explores the local prosecutor's role in responding to terrorism, how they are involved in the identification and prosecution of precursor crimes, and the overlap between federal and state prosecution.     

POLICING CORPORATE COLLUSION*

This is a documentary study of the origin and investigation of all criminal prosecutions of collusive trade agreements filed by the Antitrust Division, US. Department of Justice from 1946 through 1970. The methodology seeks to reconstruct these cases from previously classified investigative files of the division. Observations include the sources of organizational intelligence, investigative methods, and encounters among antitrust victims, offenders, and officials. Most cases originate with complainants and informants outside the agency, but most evidence is obtained with the cooperation of offenders, who usually receive immunity or leniency in return. The conclusions suggest that public exposure of trade conspiracies serves as a deterrent despite weak penalties.     

Cross-national investigation and prosecution of intellectual property crimes: the example of “Operation Buccaneer”

“Operation Buccaneer” was the name given to a law enforcement operation against “DrinkOrDie,” a highly organised but globally dispersed Internet-based software piracy group. The concerted enforcement action, led by the US Customs Service and Department of Justice, extended to several European countries and Australia. This paper contrasts the legal consequences that flowed, with numerous suspects pleading guilty in the United States, some contested prosecutions in the United Kingdom, and a sole Australian suspect facing extradition to the United States to face charges. Operation Buccaneer illustrates the cross-national reach of both Internet-based intellectual property crime and the law enforcement response, as well as some of the complexities that arise in applying jurisdictional concepts such as the “double criminality” requirement for extradition in this evolving prosecutorial landscape.     

Evaluating small town policing: Methodological issues

This research provides helpful information for those who evaluate police performance. While researchers commonly espouse the merit of using more than one form of research police evaluation often involves citizen surveys exclusively. Demographic factors and the “halo effect” can influence police evaluations, particularly in rural communities which are especially vulnerable to political agendas and personal relationships that can skew survey data. Our research finds that while citizens generally evaluate police favorably, a high percentage of “don't know” responses suggest that citizens are not prepared to evaluate all aspects of police services. Furthermore, police evaluator observation reveals that police services were inadequate, both within the organization of the department and the patrol practices. Finally, some questions, not traditionally included in police evaluation surveys reveal high levels of fear among citizens. These inconsistencies question the exclusive use of citizen surveys and may indicate indirect evidence of a “halo effect”. A conscientious effort to combine quantitative and qualitative measures may better capture relevant information concerning the quality of police services. Authors' Note: Loreen Wolfer, Ph.D., and Thomas E. Baker, M.S., M.ED., are Assistant Professors in the Department of Sociology/Criminal Justice, University of Scranton, Scranton, PA 18510. This research was supported by a federal grant, number, ORI# FBI ID # PA 040-2500, U.S. Department of Justice (Office of Community-Oriented Policing Services (COPS). Points of view or opinions expressed here do not necessarily represent the official position of U.S. Department of Justice, National Institute of Justice or the COPS office     

The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion

Contemporary studies of prosecutorial decision making at the state level are infrequent, and even fewer studies examine the discretionary decisions of federal prosecutors. In addition, virtually no scholarly literature examines the growing overlap between federal and state criminal jurisdiction. This paper advances both theoretical and empirical understandings of the organizational and political contexts in which prosecutorial discretion takes place by exploring the nexus between federal and state criminal jurisdictions. Drawing on interview research in a large urban area with several active federal/state cooperative prosecution programs, we suggest that these cooperative relations open new avenues of discretion for local and federal prosecutors; limit the authority of other court actors, including state judges; and erode the distinctions between federal and local criminal jurisdiction.     

(Dis)order in the Court: Examining Neighborhood Disorder Prosecutions in Miami-Dade County

Abstract

This study examines race, space, perceptions of disorder, and nuisance crime prosecution in Miami-Dade County, Florida. Research has examined nuisance policing, yet little attention has been devoted to nuisance crime prosecutions, especially at the neighborhood level. Aggregating data on defendants arrested for nuisance offenses from 2012 to 2015 up to the neighborhood level, we estimate count models for pretrial detention, case acceptance, conviction, and sentencing outcomes in neighborhoods. We find two patterns of nuisance crime prosecution. Drug disorder prosecutions are concentrated in economically disadvantaged neighborhoods with large Black defendant populations, suggesting a more suppressive treatment of these “marginalized” spaces. In contrast, greater enforcement of homelessness and alcohol nuisance crimes in White non-Hispanic neighborhoods suggests disorder prosecutions are also used to impose order and containment in more economically “prime” spaces. These countervailing patterns highlight the spatial contingency of nuisance enforcement, whereby prosecutors differentially enforce nuisance crimes in prime and marginalized spaces.     

An Analysis of CRIPA Findings Letters Issued to Jails for Constitutional Violations by the Department of Justice

This study analyzes Findings Letters in jail Civil Rights of Institutionalized Persons Act (CRIPA) cases for the years 1993 through 2013 to improve our understanding of the prevalence, content and correlates of constitutional violations investigated by the Department of Justice. CRIPA authorizes the U.S. Department of Justice to investigate and file suit against local jail facilities for the unconstitutional conditions of individuals in their care. Investigating the allegations and providing local officials a Findings Letter are the first steps in a CRIPA action and determine what remedial action must be taken to avoid a federal lawsuit. The analysis revealed a high incidence of certain constitutional violations, longitudinal trends, and facility characteristics associated with CRIPA action.     

Reflections on the Exercise of Prosecutorial Discretion 50 Years After Publication of The Challenge of Crime in a Free Society

In The Challenge of Crime in a Free Society, the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 acknowledged the influential role that prosecutors play but lamented the fact that their highly discretionary charging and plea bargaining decisions were often made haphazardly and inconsistently. The Commission called for more transparency and accountability in charging and plea bargaining processes. I examine the exercise of prosecutorial discretion in the 50 years since the publication of the Commission's report, with a focus on the results of research and changes in policy and practice. Although the charging and plea bargaining processes have not been subject to the type of scholarly scrutiny directed at judges’ sentencing decisions, the research that has been published in the past several decades has become more theoretically grounded, methodologically sophisticated, and transdisciplinary. In terms of policy, decisions handed down by the Supreme Court since the 1960s have provided some minimal regulation of charging and plea bargaining, and the reforms embraced by state and federal prosecutors have affected the exercise of prosecutorial discretion.     

美国企业犯罪的审前转处协议研究

美国针对企业犯罪建立了特殊的审前转处程序,办案检察官可以与涉罪企业签署暂缓起诉协议和不起诉协议,如果企业能够在考察期限内完成协议下的义务,则不会被审判和定罪。在美国经济危机时期,该制度较好地为企业的生存和社会公共利益的维护提供了保障。该制度以美国司法部内部的政策性文件为依据,赋予了办案检察官较大的自由裁量权,法院基本无权干预。美国理论界的争论主要围绕三对冲突关系:社会公共利益维护与企业“大到不用判刑”特权的冲突、检察官的转处裁量权与程序正义的冲突、司法部内部行为与立法/司法管辖权的冲突。在我国面临企业犯罪处理困境的当下,该制度及其相关理论能够为我国“司法行政部门帮扶企业”政策的践行提供经验借鉴。     

DISTRICT ATTORNEYS AND CORPORATE CRIME: SURVEYING THE PROSECUTORIAL GATEKEEPERS

A mail survey of California district attorneys regarding corporate crime focused on the recent experiences of the prosecutors with such crimes and on factors that limit the likelihood of their prosecuting corporate offenders. A significant majority of the district attorneys had prosecuted a variety of corporate crimes, and a sizable minority anticipated devoting more resources to corporate crime prosecutions in the future. There was a strong consensus among the district attorneys that the primary obstacle to corporate crime prosecutions is not political but practical and inheres in the level of resources available to them. Prosecutors in small districts were more constrained by the potential impact that a corporate prosecution might have on the local economy than their counterparts in large districts. This finding suggests that community context may influence social control responses to corporate lawbreakers.     

What do prosecutors maximize? An analysis of the federalization of drug crimes

Recent legislation has expanded the jurisdiction of the federalgovernment over crimes that were traditionally prohibited onlyby state law. We model the decision-making process of stateand federal prosecutors, and the determinants of prosecutors'decisions to allocate drug cases to the state versus the federalsystems. Using 1991 surveys of state and federal inmates incarceratedfor drug crimes, we find that individuals who hire private attorneysand who are high-human-capital and successful in the legitimatesector are more likely to end up in the federal system. Thisis consistent with the model in which prosecutors maximize boththe payoffs from eliminating crime and their private human capital.