Imagine you’re a prosecutor, and this case comes across your desk:
A man at a train station was arrested for, in the words of one arresting officer, “yelling obscenities, stopping patrons for money, and brandishing a knife.” 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.
This man is 29, with no criminal record, and a responding police officer said he looked “slightly intoxicated.” You can pursue numerous charges, including a felony. You can also seek a range of punishments for these charges, including fines and periods of confinement. What would you consider a fair outcome? And what would you initially charge, knowing that the ensuing process could involve a plea bargain?
A new study, forthcoming in the UC Davis Law Review, reveals what some real prosecutors would do. The authors recruited hundreds of state and local prosecutors from across the country to review fictional police reports, statutes, and sentencing guidelines—and then explain how they’d charge the case, what punishment they would recommend, and why they’d take that approach.
The study covers only one specific crime, and the sample of prosecutors is not representative. (Five hundred and forty-two participated, out of 4,484 initially asked.) But it is an important contribution to the study of prosecution. It reveals enormous variation in how prosecutors approach the same case, provides insight into the process—both the thinking of individual prosecutors and the rules of their offices—and enables the public to ask if these officials are being too strict or lenient.
Though a handful of the prosecutors said that they’d bring no charges, most said that they’d bring multiple charges; 16 percent said that they would charge the felony. For punishment, 40 percent said that they would recommend a monetary penalty, and about 30 percent would go for some term of confinement. The monetary penalties reached as high as $5,000, though the $250 to $500 range was most common; the confinement terms were usually 30 days or fewer, though several were higher than a year. Some recommended community service in lieu of other penalties or a suspended sentence pending mental-health or alcohol treatment.
In explaining their decisions, the prosecutors covered considerable ground. Some expressed a desire to communicate the seriousness of the offense without resorting to jail time, others wanted to avoid fines because the man might not be able to pay, and still others thought some time in jail might do the perp some good. Many also wanted to prod the man to get help or consult with the woman whom he grabbed before they made a final decision.
Prosecutors had varying views on plea bargains, too. Some said that they tended to charge high because it’s easier to back off later than to add new charges. Others would charge only what they thought was appropriate and justified by the relevant statutes and would never charge high for the purpose of plea-bargaining down later.
Interestingly, though, the fact that some charges were made with the intent of paring them back later suggests that the case might not unfold quite so differently under different prosecutors. After all, about 90 percent to 95 percent of cases in fact end in plea bargains.
Further, some of the prosecutors’ varying approaches can be explained by regional cultures—the study reports that prosecutors from the West South Central and Mountain regions are the strictest—or by factors the study does not account for, such as local crime conditions. And in the end, judges don’t have to accept prosecutors’ punishment recommendations anyway, though they tend to do so in the event of a plea.
Still, the findings raise important issues, the biggest being the sheer extent of prosecutorial discretion. While America has made major efforts to reduce the discretion of judges and parole boards—including sentencing guidelines, mandatory minimums, and “truth in sentencing” laws—prosecutors face fewer such restrictions. Many of those restrictions were put in place to ensure that the system would be tough enough on crime, and until the rise of the “progressive prosecutor,” there was little worry about prosecutors in that regard.
All these actors do need some discretion, of course, so that they may treat different cases differently, paying attention to the unique factors that each situation presents. But as this study shows, prosecutors differ dramatically in how they treat the same case.
Conservatives and liberals should want the justice system to treat similar cases consistently. This avoids the potential for bias, standardizes punishments so that consequences are predictable, and ensures that the will of the public, as expressed in the law, gets carried out. In addition, many believe that prosecutors’ ability to “overcharge” offenders can create excessive pressure on defendants to plea bargain to avoid the trial to which they have a constitutional right—though, as my colleague Rafael Mangual has explained, debate persists in the academic literature as to how big this “trial penalty” or “plea discount” really is.
More detailed charging guidelines for prosecutors who lack them would seem worth exploring, whether they’re set office-by-office or on a broader level to avoid variation. Many offices do have guidelines—sometimes even mandatory ones—suggesting that they’re feasible and can be helpful. Offices might also consider using surveys like this as a tool, asking their prosecutors to give their recommendations for the same case and reviewing the results for extreme deviations.
The question also remains whether the prosecutors in this study were, overall, too strict with the perpetrator. The authors of the paper certainly think so. Their results, they claim, tell “a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness.” But severity is in the eye of the beholder, and while the case is “mild” relative to a rape or murder, menacing a public place with a knife and grabbing a stranger in the process does terrorize those present—and raises the possibility that the individual’s next armed episode won’t end so peacefully. Prosecutors’ most common approaches to this case—recommending modest fines, short jail stays, or suspended sentences, sometimes with an eye toward a plea bargain or getting the man into treatment—will strike many as reasonable.
Finally, the authors also ran an experiment on the prosecutors in their survey, the results of which were published previously. The prosecutors were randomly given varying information about the race and social class of the suspect. The experiment revealed no bias along either dimension, a reassuring counterpoint to the narrative of rampant bias in the justice system, though of course such biases might be muted when prosecutors know that they are being studied.
This study is quite limited in some ways, but it provides a rare glimpse into the “black box” of prosecutor decision-making, reveals wide variation in how prosecutors might handle the same case, and highlights a promising way forward for future research. If we want to know how prosecutors will handle cases, we should spend more time asking them.