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Some Things Are Just Better Left as Secrets: Non-Transparency and Prosecutorial Decision Making in the Era of Neoliberal Punitivism

Published onJun 01, 2017
Some Things Are Just Better Left as Secrets: Non-Transparency and Prosecutorial Decision Making in the Era of Neoliberal Punitivism
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Abstract

This paper focuses on prosecutorial decision-making during the late-20th and early 21st century era of punitive American criminal justice. Qualitative semi-structured in-depth interviews were conducted with 10 former prosecutors who worked in two large and diverse states to determine how they made their decisions regarding charging and plea bargaining. This study investigates how prosecutors consider legal and extra-legal factors when making decisions. The results suggest that prosecutors considered legal factors such as evidence/provability and elements of the crime, the defendant’s criminal history, and witness credibility and/or victim credibility, but also extra-legal factors such as, victim’s request, law enforcement priorities, relations with defense counsel, high profile cases, and community influence. All of these decisions were made during and reflect the punitive era of criminal justice in the USA.

Introduction

Outside a local bar, three friends get into a fight with another patron from the bar. The fight sends the patron to the hospital. Four days later, the patron dies as a result of a fatal punch to the head. The evidence against all three friends is equally strong as it is unclear from the facts of the case which of the three friends delivered the fatal blow. In addition, all three friends have a “clean” record and have never been in trouble with law enforcement prior to this incident. Two are charged with second-degree murder and, of the two, one pleads to misdemeanor battery and is given probation in exchange for testimony against the other. The other friend that is charged with second-degree murder is not offered a plea bargain and faces 15 years to life in prison, if convicted. Meanwhile, the third friend is not charged with a crime at all. It seems unfair that two friends were charged and the other was not. Additionally, of the two whom were charged, it also seems unfair that one received a harsher sentence than the other. After reading this vignette, one may ask: Why were these three similarly situated people treated differently? Who made these decisions? How and why were these decisions made? What factors influenced these decisions?

The prosecutor made these decisions. It has been said that prosecutors are the most powerful officials in the criminal justice system (Bubany & Skillern, 1976), and this is especially so since the 1970s when states and the federal government began to ramp up punitiveness in America with mandatory minimum sentencing. Prosecutors have the exclusive power to decide whether or not to charge a person with a crime, what the specific charges will be, whether or not to dismiss charges, whether or not to plea bargain, whether or not to try a juvenile as an adult, and whether or not to seek the death penalty. The American prosecutor exercises almost totally unfettered discretion when it comes to making these decisions (Albonetti, 1987; Jacoby, 1980; LaFave, 1970; McDonald, 1979). Not only do prosecutors have enormous discretion when making these decisions, but their discretion is also virtually unreviewable. Judges have ruled in federal and state court cases that the judicial branch is not responsible for reviewing prosecutors’ decisions. For instance, when John P. Hassan filed a suit against the Magistrates Court of New York (Hassan v. Magistrates Court of New York, 1959) in an attempt to get the court to compel the district attorney to institute criminal proceedings against a New York City police officer for first-degree perjury, the court stated:

As a basic incident of our form of Government, with its divided powers and responsibilities lodged in the executive, legislative and judicial branches, and as a self-imposed rule   of judicial restraint, the courts should not interfere with the discretion lodged in prosecuting officials such as a District Attorney or the Attorney-General to institute criminal proceedings. (p. 241)

The U.S. Court of Appeals for the Fifth Circuit stated similar reasoning in United States v. Cox (1965) for not interfering with the prosecutor’s decision not to prepare an indictment even though the grand jury requested that he do so:

Although as a member of the bar, the attorney for the   United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions. (p. 171)

Moreover, in Wayte v. United States (1985), the U.S. Supreme Court stated:

This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. (p. 607)

This gives prosecutors a tremendous amount of power over the fate of citizens. “When the prosecutor makes the decision to charge an individual, she pulls that person into the criminal justice system, firmly entrenches him there, and maintains control over crucial decisions that will determine his fate” (Davis, 2007, p. 22). Because prosecutors have so much power, it is important to know how they make these decisions, what factors influence their decision-making, and in what context they operate.

This study focuses on prosecutorial decision-making in the punitive era of American criminal justice. Qualitative semi-structured in-depth interviews were conducted with nine former prosecutors who worked in several district attorneys’ offices in California and one prosecutor who was the elected District Attorney (DA) in a large county in Illinois to determine how they made their decisions regarding charging, plea bargaining, trying juveniles as adults, and seeking the death penalty. In this paper, we focus on charging and plea bargaining because these were the main practices of nine of the ten respondents and are the primary duties of prosecutors in all jurisdictions in the USA.

The original impetus for this study was due to an unpaid internship that one of the authors (Shanda Angioli) undertook with the local district attorney’s office, in a large diverse California county. The hope was that this internship would create the opportunity to undertake research on prosecutors. After a circuitous path through the office, Shanda was able to meet with the elected district attorney. During the meeting, Shanda provided an explanation of the proposed research and provided copies of questions from the semi-structured interview. She assured that the study would be anonymous and that information derived from interviews would be confidential, and provided reasons as to the importance of the study, explaining the benefits that she and her deputy district attorneys could gain from the results of the study. The district attorney responded that she had reviewed the questionnaire and believed that the research would reveal internal policies to  the public. She stated that she made the policies of the office and she was concerned that some of her deputy district attorneys may answer questions incorrectly (i.e., their answers would not reflect her policies). She then said, “Some things are just better left as secrets.”

It was this refusal that caused us to change the focus of the study from current district attorneys to former district attorneys. Switching the sample from current prosecutors to former prosecutors allowed us to obtain more information because current prosecutors may be reluctant to answer questions truthfully because of the fear of retaliation from above, whereas former prosecutors essentially have nothing to lose. For example, Respondent  #3 stated, “Former prosecutors are not as scared as current prosecutors. When you’re actually doing prosecutions, you are likely more tentative about revealing things that could questionably be unethical or not proper.” Respondent #5 said, “Current prosecutors are scared because it’s a political position and so people are very political about what they say; they don’t want to say the wrong thing, which to me, is part of the problem.” It is important to note that all of these attorneys decided to leave prosecution, in some cases explicitly due to dissatisfaction with the position. Seven of the respondents currently practice criminal defense. In an important sense, these lawyers—although very knowledgeable about prosecution—are possibly biased against or extra inclined to critique it. Nevertheless, we believe that they remain a more valid choice than practicing prosecutors precisely because of their critical insights about the institution. In some cases, it was problematic behaviors and actions in the prosecution institution that influenced them to leave the position. These persons are analogous to “whistle-blowers,” and therefore appropriate for studying a closed and opaque institution. At the same time, we acknowledge that former prosecutors currently working as defense attorneys are probably more eager to critique prosecution than former prosecutors currently working in civil law or some other non-criminal area.

The next section of this paper will provide a selected review of prior research regarding prosecutorial decision-making and American punitiveness. We subsequently discuss our methods for analysis, and then describe and analyze our findings. We conclude the paper with suggested avenues for future research.

Literature review

Decision-making

Over the past few decades, there has been a significant amount of research regarding what legal and extra-legal factors influence prosecutors when making their decisions. Legal factors “typically refer to decision criteria set out in statutory law” while “extralegal factors usually include social and demographic” characteristics (Adams & Cutshall, 1987, p. 596). Legal factors can include, but are not limited to, strength of evidence, the seriousness of the offense, and the defendant’s prior criminal history. However, Littrell (1979) once noted that “unlike psychotherapists, criminal justice officials do not assess character by delving into the privacy of a defendant’s mind. They rely instead upon a defendant’s social characteristics” (p. 79). Extra-legal factors include, but are not limited to, employment status, age, socioeconomic status, gender, and race of the defendant and victim. Prior research has shown that both legal and extra-legal factors matter.

Decision to charge

Albonetti (1987) studied 6,014 felony cases processed in the Superior Court of Washington, D.C. in 1974 and found that prosecutors were less likely to charge if there was a presence of exculpatory evidence (i.e., evidence that benefits the defendant) than if there were no such evidence. Also, prosecutors were more likely to accept cases for prosecution if either physical evidence or corroborative evidence were present than if there were no such evidence (Albonetti, 1987). Jacoby et al. (1982) found that similar legal factors, such as the presence of two or more police witnesses, increased the likelihood of charging. These two studies also found that extra-legal factors matter, demonstrating that prosecutors were more likely to file criminal charges if the victim and suspect were strangers than if they were acquaintances (Albonetti, 1987; Jacoby, Mellon, Ratledge, & Turner, 1982).

Not surprisingly, victim credibility has been shown to be significant for prosecutors. Frohmann (1991) observed prosecutors for 17 months regarding sexual assault cases and found that they were less likely to file criminal charges in a sexual assault case if the victims’ accounts of the crime contained discrepancies or if the victim had an ulterior motive.

Other legal factors, such as the use of a weapon, the suspect’s prior record, statutory severity (i.e., possible penalty), and whether the suspect was arrested at the crime scene have all been found to be statistically significant with regard to prosecutors’ decisions to prosecute (Albonetti, 1987).

Other studies have found that race and gender can influence prosecutors’ decisions regarding whether or not to charge a suspect with a crime. Spohn, Gruhl, and Welch (1987) studied 33,000 felony cases in Los Angeles from 1977 to 1980 and found that prosecutors were more likely to file criminal charges against both Hispanic men and women, and Black men and women than against White men and women. It was also found that Hispanics were prosecuted more often than Blacks, who were prosecuted more often than Whites (Spohn et al., 1987). With regard to gender, Spohn et al. (1987) found that prosecutors were more likely to file criminal charges against males in each ethnic and/or racial group (White, Black, and Hispanics) than against females.

Decision to plea bargain

Legal and extra-legal factors also influence plea-bargaining. Jacoby et al. (1982) found that the seriousness of the offense, the criminality of the defendant, and the legal-evidentiary strength of a case affect prosecutors’ decisions regarding whether or not to offer a plea bargain. This supports research by McDonald, Rossman, and Cramer (1979). McDonald et al. (1979) interviewed and observed prosecutors, defense counsel, judges, and other criminal justice actors as well as applied a decision simulation technique in 33 jurisdictions. Overall, McDonald et al. (1979) found that case strength, seriousness of the defendant’s history (i.e., whether or not the defendant had a criminal record), and seriousness of the offense all influenced prosecutors’ decisions regarding whether or not to offer a plea bargain. Jacoby et al. (1982) found that as the seriousness of the offense decreases, the more likely it is that a prosecutor will offer a plea bargain. Also, as the legal-evidentiary strength of the case increases, Jacoby et al. (1982) found that prosecutors were less likely to offer a plea bargain. McDonald and colleagues’s (1979) study had similar results. With regard to case strength, McDonald et al. (1979) used the data from their interviews to determine that prosecutors were more likely to give their most generous deals in their weakest cases. When dealing with the criminality of the defendant, Jacoby et al. (1982) found that the less serious the defendant’s criminal history, the more likely prosecutors would offer a plea deal. Unlike Jacoby study (1982), McDonald and colleagues (1979) found that prosecutors did offer plea deals to defendants with more serious criminal histories. Based on the interview data, the McDonald study (1979) found that in cases where prosecutors offered plea deals to defendants with serious criminal backgrounds, the more serious the criminal, the stiffer the terms of the plea bargains.

The media has also been found to influence prosecutors’ decisions regarding whether or not to plea bargain. Pritchard (1986) performed a content analysis of 744 news stories in Milwaukee’s daily newspapers regarding every non-vehicular homicide case presented to the district attorney’s office for possible prosecution from January 1, 1981 to June 30, 1982. Pritchard (1986) found that the average length of stories about cases was the strongest predictor of whether prosecutors engaged in plea negotiations. For example, the shorter the average story, the more likely the prosecutor would offer a plea bargain (Pritchard, 1986). Pritchard (1986) concluded that “the amount of space newspapers were willing to devote to the typical story about a case was a stronger predictor than any other variable in [the] study [regarding] whether the prosecutor would negotiate” (pp. 154-155).

Decision to dismiss charges

After charges have been filed against a suspect, the prosecutor can decide at any time to dismiss those charges. Research has shown that both legal and extra-legal factors have influenced prosecutors’ decisions to dismiss charges. For example, Adams and Cutshall (1987) reviewed 745 shoplifting cases in the District of Columbia from 1974 to 1975. Of the 745 cases, sixty percent (60%) received a nol-pros disposition, which is the technical term for dropping charges. Adams and Cutshall (1987) found that the number of offenses charged, number of witnesses, value of merchandise stolen, race of suspect, gender of suspect, and the suspect’s prior criminal history to have a statistically significant relationship with the nol-pros decision. More specifically, Adams and Cutshall (1987) found that “shoplifting cases involving one offense charge, no more than two witnesses, stolen merchandise valued at less than ten dollars, white offenders, female offenders, and offenders with no prior record are more likely to be ‘nol-prossed’ ” (p. 600).

Researchers have also found gender to influence prosecutors’ decisions regarding whether or not to dismiss charges against a suspect. As previously mentioned, Spohn et al. (1987) studied 33,000 felony cases in Los Angeles from 1977 to 1980 and found that prosecutors were more likely to dismiss charges prior to trial against females in each ethnic racial group (White, Black, and Hispanic) than for males. This finding supports Albonetti’s (1986) research where she found that prosecutors were more likely to dismiss charges if the defendant was a female than if the defendant was a male.

Decision to charge juveniles as adults

The decision to charge juveniles as adults—known as “prosecutorial waiver”—is “controversial because it vests considerable discretion in the prosecutor, whose primary duty is to secure convictions and who is traditionally more concerned with retribution than with rehabilitation” (Fritsch & Hemmens, 1995, p. 18). As in other areas, research has shown that both legal and extra-legal factors have been found to influence prosecutors’ decisions to charge a juvenile as an adult. For example, Bishop, Frazier, and Henretta (1989) interviewed prosecutors in Florida and found that the age of  the defendant was an important factor in deciding whether or not to transfer a juvenile to adult court, even when controlling for seriousness of the offense and the juvenile’s prior record. The older the offender, the more likely he would be transferred to adult court (Bishop et al., 1989). The interviews indicated that the offense itself was also a factor that influenced prosecutors’ waiver decisions. All of the prosecutors interviewed stated that they placed a heavy emphasis on the seriousness of offense when considering whether or not to transfer a juvenile to adult court (Bishop et al., 1989). In addition, some prosecutors interviewed claimed that the presence of an adult co-defendant also made transfer more likely because it made the juvenile offender seem more criminally sophisticated (Bishop et al., 1989).

In addition to interviewing prosecutors, Bishop and colleagues (1989) also studied 583 cases derived from prosecutors’ files and court clerk records in two Florida counties from 1981 to 1984 to determine what factors influenced prosecutors’ decisions to transfer a juvenile to adult court. They found that gender, race, and age were all factors that affected prosecutors’ waiver decisions. The results of their study showed that the majority of juvenile offenders that were transferred were male, white, and were either sixteen or seventeen when they committed the offense (Bishop et al., 1989). Although prior record is often stated as a reason for waiving juveniles to adult court, Bishop et al. (1989) found that twenty-three percent (23%) of first time juvenile offenders (i.e., no prior record) were transferred to adult court.

Bishop et al. (1989) also found that the type of offense influenced prosecutors’ waiver decisions. Of those transferred to adult court, they found that most of the juveniles (55%) had committed a property offense whereas only 29% of them had committed a violent felony, and fewer than twenty percent had been charged with felonies against persons. These findings probably reflect the fact that property crimes are more common than violent crimes, but they raise the question of why that large percentage of juveniles committing property crimes were charged as adults. Prosecutors in the Bishop study (1989) said that seriousness of offense was a factor that influenced their waver decisions, but it is not clear how seriousness factored in to all those property crime waiver decisions. It is possible that extra-legal factors mattered for these prosecutors, even if unconsciously.

Podkopacz and Feld (1996) studied cases where prosecutors filed motions to transfer juveniles to adult court in Hennepin County, Minnesota from 1986 to 1992. They found that the type of crime, the suspect’s race, the use of a weapon during the commission of the crime, and the age of the suspect influenced prosecutors’ decisions regarding whether or not to transfer the juvenile to adult court.

Singer (1993) studied 103 juvenile offender arrests in Buffalo, New York between 1981 and 1985 and found that juveniles who came from single-parent homes were more likely to be referred to the grand jury for transfer to adult court in non-homicide cases than juveniles from two-parent homes.

Decision to seek the death penalty

Prosecutors’ decisions around the death penalty have been studied extensively. “There would be no death penalty without prosecutors, because only prosecutors may decide whether or not to seek the death penalty in a particular case” (Davis, 2007, p. 78). Although one might think that prosecutors seek the death penalty for most every offender that qualifies for it, that is not the case (Davis, 2007). In order for a case to qualify for the death penalty, the facts of the homicide must include a special circumstance beyond simple first degree murder (e.g., multiple victims, the victim was a law enforcement officer, another felony co-occurred with the homicide, etc.). Yet there are no laws that require that cases that qualify for the death penalty be charged as a capital case. As a result, prosecutors exercise the ultimate form of sovereignty when they exercise their discretion to decide which murder cases are suitable for capital punishment and which are not (Songer & Unah, 2006).

Legal factors certainly influence prosecutors’ decisions regarding whether or not to seek the death penalty. Yarvis (2000) examined 115 homicide cases in California between 1980 and 1991. Of the 115 cases, 52 were eligible for the death penalty. Yarvis (2000) sought to answer the question: once the death penalty criteria have been met (i.e., when there was at least one special circumstance present), what compels prosecutors to determine whether or not to seek the death penalty, and what are the bases for such decision-making? Of the 52 death eligible cases, Yarvis (2000) compared the 39 defendants who met the special circumstance criteria and were charged with the death penalty to the 13 defendants who met the criteria but were not charged as such. Yarvis (2000) found that prosecutors were more likely to seek death when more than one special circumstance was present. Yarvis (2000) also found that robbery and sexual assault usually provoked prosecutors to file a special circumstance charge. When determining  if  aggravating and/or  mitigating factors played a role in prosecutor decision-making  in capital cases, Yarvis (2000) found that prosecutors focused selectively on aggravating factors and placed much less emphasis on mitigating ones, and that the presence of mitigating factors did not deter prosecutors from charging a special circumstance.

Extra-legal factors have also been found to influence prosecutors’ decisions regarding whether or not to seek the death penalty. For example, the role of race has long been shown to matter in prosecutorial decision-making on the death penalty. Paternoster’s (1984)  research suggests that the race  of the victim is influential. Paternoster (1984) analyzed data from 300 homicides involving an aggravating felony that occurred in South Carolina between 1977 and 1981. Prosecutors sought the death penalty in 107 of the 300 capital murders, and Paternoster (1984) found that when several legally relevant factors were taken into account, the race of the victim was significantly related to the decision to seek the death penalty. In a highly publicized study, Baldus, Woodworth, and Pulaski (1990) examined over 2,000 murder cases that occurred in Georgia between 1973 and 1979 and found the race of the victim to have an influence on prosecutors’ decisions regarding whether or not to seek death. They found that prosecutors were more likely to seek death if the victim was White than if the victim was Black, regardless of the race of the defendant (Baldus et al., 1990). They also found that prosecutors sought the death penalty for 70% of Black defendants with White victims while they only sought the death penalty for 15% of Black defendants with Black victims (Baldus et al., 1990). In addition, Baldus and colleagues (1990) also found that prosecutors sought death for 32% of White defendants with White victims while they only sought death for 19% of White defendants with Black victims. The findings of the Baldus study (1990) suggest that prosecutors value the lives of White victims more than they value the lives of Black victims. These findings have been replicated repeatedly (e.g., U.S. General Accounting Office, 1990; Free, 2002; Songer & Unah, 2006).

Neoliberal punitivism

The above-mentioned research describes the legal and extra-legal factors that influence prosecutors’ decision-making. Regardless of whether their decisions were influenced by legal or extra-legal factors, other research suggests that these decisions were driven by America’s desire to punish offenders. Many scholars have described and theorized the late 20th century punitive turn in American criminal justice, most notably Jonathan Simon’s (2007) influential Governing through Crime.null What Simon calls ‘governing through crime,’ we will refer to as ‘neoliberal punitivism,’ a reactionary  ideology that emerged out of a backlash against the legacy of civil rights era Supreme Court criminal justice doctrines and fear generated by the rise of crime rates beginning in the 1960s and accelerating into the 1980s.null Neoliberal punitivism valorizes executive authority, derides judicial decision making as “activism,” and devalues due process and the rights of criminal defendants. This ideology sees criminals in simplistic and individualistic terms, constructing them as monsters or “super predators.” It views victims as innocents, whose purity and goodness must be avenged, resulting in harsh and humiliating punishments, including the re-emergence of practices such as the chain gang (Allen & Abril, 1997). The rise of neoliberal punitivism has been facilitated by what Simon (2007) refers to as “the prosecutorial complex,” a model in which: 1) prosecutors are constructed as champions for victims, 2) victims seek recognition through retribution, and 3) prosecutors have a monopoly on service to victims and power to isolate and punish defendants (p. 37).

Aviram (2015) describes the punitive turn as “received wisdom in the field for all but a few” (p. 26). However, partly due to concerns over public expenditure on prisons during the 2007 financial crisis, the era of neoliberal punitiveness may be waning. Many examples could be cited, but a prominent example with large effects was the passage of Proposition 47 in California  in 2014, which overnight transformed many non-violent drug and property crimes from felonies to misdemeanors. Whether the era of mass incarceration has passed is certainly under debate, but the hegemonic necessity for politicians to be tough on crime, the war on drugs, and the massive warehouse prison are at least under critique at the moment, including from conservative commentators (see rightoncrime.com). Whenever the exact starting (or ending) point of this era may be, nine of the ten former prosecutors in this study worked for some period between the years 1983 and 2009, the peak years of neoliberal punitivism.null

Methods

Prosecutorial decision-making in the neoliberal punitive era was investigated using qualitative semi-structured in-depth interviews with ten former prosecutors with experience in DA offices in various counties throughout California and Illinois.

Qualitative data collection

While quantitative research tends to employ descriptive and/or inferential statistical methods to identify relationships between independent and dependent variables, qualitative methods tend to focus on answering the why questions. In other words, they seek to investigate the why and how of decision making (as in this current study), rather than the what, where, and when. McCoy (1995) defined qualitative research as:

Qualitative research is concerned with nonstatistical methods of inquiry and analysis of social phenomena. It draws on an inductive process in which themes and categories emerge through analysis of data collected by such techniques as interviews, observations, videotapes, and case studies. Samples are usually small and often purposively selected. Qualitative research uses detailed descriptions from the perspective of the research participants themselves as a means of examining specific issues and problems under study. (p. 2009)

Semi-structured interviews

Interviews allow the researcher to learn first-hand from the participants’ own words and past experiences, and so, therefore, the researcher is able to gain a better understanding of why and how things happened. As Rubin and Rubin (2005) state it, “qualitative interviews have operated for us like night-vision goggles, permitting us to see that which is not ordinarily on view and examine that which is often looked at but seldom seen” (p. vii). “Qualitative interviews are conversations in which a researcher gently guides a conversational partner in an extended discussion” (Rubin & Rubin, 2005, p. 4). Qualitative interviews are similar to ordinary conversations in that they typically follow the same format as ordinary conversations. In ordinary conversations, each person takes a turn speaking and “questions and answers follow each other in a logical fashion as people take turns talking” (Rubin & Rubin, 2005, p. 12). In qualitative interviews, although the researcher is ultimately in charge of the interview and determines what topics to discuss, there are typically very few pre-set questions and the “researchers listen to each answer and determine the next question based on what was said” (Rubin & Rubin, 2005, p. 12).

In semi-structured interviews, the researcher begins the interviews with an outline of questions, but the sequence of questions flow naturally depending on the answers that the interviewee provides (Goodman, 2001; Merton, Fiske, & Kendall, 1990). In other words, semi-structured interviews allow the researcher flexibility with regard to the order that the questions are asked as well as flexibility to develop questions during the interview in response to what the research participant says. These questions are typically asked of each interviewee in a systematic and consistent order, but the interviewers are allowed freedom to digress; that is, the interviewers are permitted (in fact expected) to probe far beyond the answers to their prepared and standardized questions. (Berg, 1995). This approach makes sense for interviewing former prosecutors from widely varying backgrounds.

These interviews included questions about respondents’ demographics (e.g., age, ethnicity, political affiliations, gender, and religious preferences), descriptive information regarding their position as a prosecutor (e.g., how many years the respondents worked as a prosecutor, which county they worked in, the division of the  district attorney’s  office  that  they  worked in, and what crimes they dealt with), their views on crime (e.g., questions regarding their stance on crime and stance regarding the death penalty), and their decision-making power (e.g., if the respondents ever filed charges against a suspect and if respondents ever offered plea bargains to defendants). If respondents had made decisions about charging juveniles as adults or the death penalty, we then probed them for more information about that.

A prime example of qualitative research on legal decision-making can   be found in the extensive work by the Capital Jury Project (CJP), which examines jurors’ decision-making through extensive interviewing. The CJP focuses primarily on arbitrariness in capital cases (Steiner, Bowers, & Sarat, 1999), and CPJ data have shown that a host of factors influence how juries make capital decisions, including: knowledge of sentencing options (Bowers & Steiner, 1999; Eisenberg, Garvey, & Wells, 2001); (mis)understandings of jury instructions (Eisenberg & Wells, 1993); defendant’s (lack of) remorse (Eisenberg, Garvey, & Wells, 1998); premature decision making (Bowers, Sandys, & Steiner, 1998); perceptions of personal sentencing responsibility (Hoffman, 1995), and folk knowledge about punishment (Steiner et al., 1999). This comprehensive program of study obviously reaches much farther into the process of legal decision-making than our modest analysis of ten prosecutors, but we reference it here because we see it as a model for qualitative work on prosecutors. Despite the problem of access, we believe that a Capital Prosecutors Project is well warranted.

Subjects for this study were located by searching the internet for “former prosecutors” or “former district attorneys.” Most results were websites for law firms where the firms were advertising that a former prosecutor works for their firm. We contacted potential respondents, explained the study, asked if they would be willing to participate, and set up interviews. There was no specific race, gender, or age group targeted for this study. Rather, the sample included both men and women from a wide range of ethnicities and ages. We recognize that ten subjects is a very small sample. Unfortunately, the process of identifying former prosecutors, obtaining their consent to an extensive interview, and then undertaking the interview is highly labor intensive for two researchers. Some former prosecutors were too busy to participate. As we discussed above, some of the subjects who agreed to participate probably have strong critical views about prosecution. In short, the sample has flaws. Nevertheless, we believe that the depth of the interviews and richness of the data helps ameliorate these flaws.

IRB approval was granted by our home university, each interviewee agreed to informed consent, and each interview took place at the respondent’s place of business, except when respondents’ locations were of great distance; those interviews were conducted via a recorded telephone call. The interviews were in-depth and took place for several hours each, sometimes up to 3.5 hours.

Characteristics of respondents and areas of practice

Ten former prosecutors were interviewed, ranging in age from 32 to 67; nine of the ten were male, seven were White, one was African-American, one was Asian, and one was Hispanic. Respondents’ areas of practice while working as prosecutors ranged from working as a line attorney in a misdemeanor trial unit to being the elected District Attorney for one of the largest counties in the country, including most positions in between. Years working as a prosecutor ranged from 3 to 15 years. Nine of the ten worked during the years 1983-2009, although one of those nine retired from prosecution in 1983. One of the prosecutors worked from 1971-1974. Seven of the ten currently work in criminal defense, and the other three in various civil law areas.

Data analysis

Analysis of in depth interviews is a process in which “you prepare transcripts; find, refine, and elaborate concepts, themes, and events; and then code the interviews to be able to retrieve what the interviewees have said about the identified concepts, themes, and events” (Rubin & Rubin, 2005, p. 201). Upon completion of each interview, one of us transcribed them, summarized them, created a typology of categories of decision-making based on the literature, and selected quotes to reflect that typology. The other author then analyzed the findings from a theoretical standpoint, connecting the data to ideas about prosecutorial decision-making and neoliberal punitivism, as we discuss in detail below.

Strengths and limitations of the research design

Qualitative in-depth interviews are subject to the critique that they are unscientific and not generalizable, but there is a long tradition in the social sciences of valuing the strong internal validity and depth of small scale qualitative studies. Our goal here is not to prove causation nor make any broad claims about prosecution in the USA, but rather to make a record of the hows and whys of some prosecutorial decision-making during the period of America’s peak use of criminal justice as a form of governance.

Importance of the study

It is important to know how prosecutors make their decisions because under the current regime of total opacity, executive use of state power is unchecked. The public needs to understand who can invoke this state power and under what conditions this power is exercised. “Only when the public knows the reasoning behind prosecutorial decisions ... can it understand the prosecutorial function and evaluate the desirability of existing policies and practices” (Bubany & Skillern, 1976, p. 498). This study hopes to provide insight into these policies and practices, especially as they did during the time when prosecutor practices were so involved with mass incarceration.

Legal and extra-legal factors

In our exploration of how prosecutors decide to charge and plea-bargain, we, not surprisingly, found that legal factors certainly mattered. All respondents reported that the available evidence and provability of the case, the defendant’s criminal history, and the credibility of witnesses and victims affected their decision making. In a sense, even counting the defendant’s criminal background as a legal factor is debatable because even if a person has a record of committing many crimes, it should up be to the judge’s discretion to decide whether to punish the person more severely (after conviction) as a deterrent to prevent the person from committing the same crime (or other crimes) in the future, not the prosecutor’s job to decide whether or not to file charges because of the person’s past offenses. Victim or witness credibility is also arguably extra-legal because it has nothing do with the defendant’s culpability, but because it is so similar to the concept of evidence/provability, we will consider it a legal factor. So, to be clear, all of our respondents said that legal factors were prominent in their decision making. However, rather than focus on what is obvious—that evidence matters to prosecutors—we focus instead on extra-legal factors because this illuminates deep problems with prosecution in the USA.

Decision to charge

The decision to charge is “the most important prosecutorial power and the strongest example of the influence and reach of prosecutorial discretion” (Davis, 2007, p. 22). When discussing what factors influence prosecutors’ decision to charge, respondent #5 said, “Everything you think might come into play probably does; the question is, how much?” In addition to the evidence, defendants’ criminal history, the credibility of witnesses and victims, and a number of factors that should not matter came into play.

Victims’ requests

Comments about victims’ wants and needs were inconsistent. Some respondents said that victims’ wants and needs were considered but it did not influence their decisions so long as they could prove the case. Respondent #6 stated that the victims’ wants and needs are important but if the victims are not willing to cooperate, he would still file charges if there was evidence to prove the case:

Obviously the attitudes and views of the victims are important in two senses. Number one, they are victims and they should be heard. Prosecutors have to make their decisions based on what they think is the right thing to do for the community, for the people, who we represent. So it’s not, the victim wants to do X so we do X. And, that includes domestic violence. In many cases, if the victim is unwilling to testify, we will not go forward but there are evidence-based prosecutions, especially if there has been violence and the victim does not want to proceed, but we have other evidence and we feel it’s sufficient, we will go forward.

When discussing how domestic violence victims often do not want to prosecute, respondent #1 said he tried to convince the victims to go forward with the prosecution:

We’re going to try to force them to cooperate. Now sometimes they won’t. We look at these horrible, god-awful pictures of what they looked like on day one and they say, absolutely yes I want to prosecute, I’m tired of this, I am fed up with this. And by the time a month or so goes by, they say, well he loves me and he promised me he wouldn’t do it again. We try to force them to do the right thing.

Other respondents did not force recanting victims or uncooperative victims to go forward with the prosecution, but rather wanted the victims to recant or not cooperate because it made the case easier to prove to the jury. Respondent #3 said:

You often had situations, especially in domestic violence, where the victims did not want to prosecute The cases were better when the victim was not cooperating because the jurors didn’t believe the woman if she was on board ... It’s really a sad comment on our society that my cases are better when she’s not cooperative. It was better because we’ve got this police report and it’s reciting everything  that she said at that time and we’ve got these pictures, and now she’s on the stand saying, “Oh, I ran into a door.” The jury believes she was abused because they think there’s no way the injuries from the pictures are because of what she just said on the stand. They think that she is just being a victim and is just trying to protect him because she loves him. So yes, we proceeded in cases where the victim wasn’t cooperative if the evidence was good and she had given a good statement at the outset or we’ve got some injuries that are pretty convincing and are obviously not from walking into a door.

It is important to note the contradiction between respondent #1 and respondent #3. Respondent #1 stated that he tries to force victims to cooperate and to do the right thing, but respondent #3 actually prefers when victims do not cooperate because she is more likely to win those cases. The fact that both respondents #1 and #3 took such different approaches to filing charges illustrates the tremendous amount of discretion that prosecutors have, and variation in legal outcomes.

Relations with police

Seven respondents discussed the pressure that law enforcement officers put on prosecutors to file charges. One respondent claimed that the police influenced his decisions to charge, two respondents stated that the police did not influence their decision-making but influenced other prosecutors’ decisions, and four respondents said that the police did not have an influence on their decisions to charge.

Respondent #2 admitted to being influenced by law enforcement when making his charging decisions. He said, “Of course law enforcement influences my charging decision. They do that.” He then went on to say:

Well, there used to be an old urban legend that on the end of reports or on the end of a ticket, law enforcement would put a dot with a circle around it and that meant that that person was an asshole and so they were requesting the prosecution to treat them accordingly. As a result, the offers would be a little tighter. But, the defense attorneys got a hold of that and so that was the end of that. But it gives you an example of the kind of culture. I’ve had detectives come up to me and say, “You know, I charged this but you need to know this, this, and this. I don’t think we should really push hard on this. I think you should cut him a break.” I’ve also had cases where detectives have said, “We know he’s bad news, we know he’s involved in gangs, and we can’t catch him. The only thing I’ve got is a lousy possession of a modified bat We just need him on probation so we can do probation searches.” ... I said, “Alright, I will do it for you guys.” And I did it and subsequently later, he was involved in a serious assault with a deadly weapon with a bat    It was helpful that the police had that probation on him because it ended up sending him to prison for a longer term than we could have otherwise. So, yes you do work closely with law enforcement. You absolutely have to because they are your chief witnesses.

When asked if law enforcement officials ever went to specific prosecutors that they knew were likely to charge what they want, respondent #5 said:

It’s a possibility, yes. I wouldn’t say that they all do that. A lot of the times they are assigned … But sometimes in a homicide case or a bigger case where the detective is bringing over this one case today, he may say, “Okay I’m bringing this over and we busted our ass to put this together to figure out who did it and I need this case to be charged because this guy killed somebody.” You may get it and you may say, “Well, there are problems with this case, there are problems proving this case. Even though you think he did it, even though you may think you know he did it, we can’t charge it if we can’t prove it.” And so in that context, detectives ... may definitely forum shop … I mean, in fact, the charging deputy who is in charge of the X office right now, between you and I, is under some heat because he’s been rejecting cases and so the local police agencies are pissed off.

Although police and prosecutors often work closely with one another, they are not supposed to influence the other in their decision-making. This can lead to injustice because the police work in the community and often know the suspects and have an opinion regarding the suspects’ character. If a police officer is biased against one person, he may urge prosecutors to file charges against that person but then urge prosecutors to be more lenient for a person that he may like. It is important to note that not only can injustices occur when the police influence prosecutors’ decision-making, but also other negative results can occur such as wasting resources and taxpayers’ money.

Other respondents did not allow the police to influence their decisions. Respondent #7 made it very clear that he did not allow law enforcement officers to influence his charging decisions:

If the law enforcement came in with a police report and told me they wanted it filed, I didn’t care what they said. It was my decision. Sometimes the police would say, “I recommend this charge,” and I would charge them with something different. I could charge something less or something more severe. I hate police. I find that police are lazy. They arrest people and don’t want to come to court for prelims, and I would always say, “Look, this is really simple. If you don’t want to come to court for it, don’t arrest people for it.” I would never let the police influence my decisions. I actually liked the police before I became a prosecutor. Being a prosecutor soured the police in my eyes. They were lazy. They would lie. They basically would do whatever they could to get the conviction.

While we cannot verify the veracity of this former prosecutor’s claim, if true, it suggests that the concern in some sectors of American society about police misconduct are based in reality. Respondent #9 made a similar claim:

I don’t want to say that the police fabricate their reports but here’s what I’ll say. The police are like kids taking the test for the millionth time so they know what elements have to be in the police report. If they arrest you, they don’t want to arrest you and have the case get rejected as a bad arrest. So once you’re arrested, they’re back there writing their report and they need to say that you knew X, Y, and Z and  so they’re going to put that down; they’ve already made up their mind that you did it. So I would say that it’s creative writing at times.

These two quotes reveal the prosecutorial perception that police officers engage in dishonest practices; however, these dishonest practices sometimes do not deter prosecutors from charging suspects with crimes anyway.

Relationship with defense counsel

Respondent #9 stated that the relationship between the prosecutor and defense counsel influenced his charging decisions. He reported that he was  a prosecutor for nine years and so he knows many of the current prosecutors in his county and he is a friend to many of them. He currently works as a criminal defense attorney and because he has good relationships with many prosecutors, he is able to negotiate with prosecutors prior to them filing charges:

Prosecutors are absolutely willing to cut deals with defense attorneys that they know. That’s why my office is right across the street from the district attorney’s office. I go over there right away. I have no problem with telling the filing deputy,  “I have a client, you’re going to be getting the paperwork soon, and I would like to talk to you before you make your decision.” Otherwise, like I said, they’re basing their decision just on what the police are saying and not necessarily what other evidence says.

This is an example of the influence of personal relationships on legal outcomes, suggesting that some people receive special treatment and others do not. And while this finding may not surprise casual observers of the criminal justice system, it is clearly an example of arbitrariness—non-legally relevant factors causing legal outcomes.

High profile cases

Four out of ten respondents mentioned the media and/or high profile cases when discussing the factors that influenced their charging decisions. Respondent #5 said:

Absolutely the media has an effect. Absolutely. I mean, the district attorney is an elected position so whenever the media gets involved, everybody changes, I mean, everybody changes. It makes it so that, for example, the prosecution can’t do what the defense wants because they can’t explain  it to the media. Even though it may be the right thing to do, they’re stuck because, like, take for example, [celebrity]. [Celebrity] got thrown back into custody because of the media. If she was going to be handled like anybody else, she would have been released because the sheriff had made that determination. But, because of who she is, they said, “You’re going in.” So, it has an effect because the district attorney is an elected job and so if you don’t do what the public wants, the public will find another district attorney. And, that happens routinely in counties.

Although respondent #7 did not let the media influence his decisions, he was not so convinced that other prosecutors followed in his footsteps. He said, “I never let the media influence my decisions, but I don’t think everybody is like me and that’s probably why I left.”

Other respondents reported being more cautious when making their decisions when the media was involved. Respondent #6 stated:

Certainly not consciously did I make decisions because of the media. If we had a high profile case, I think we were more careful about every step that we took just to make sure that we were not influenced by that. But, I think I can fairly say that in the 12 years that I was there, I never made a decision because the media had a particular view of the case. That’s just not right. It doesn’t mean that the media’s view may not be the right view, but you make your decision as a prosecutor on the basis of what the evidence shows. And certainly in the situation like that where it’s a high profile or heater case; that would be something that would come to me. Somebody in the trial court, if it were a huge media high profile case, would certainly want to check with me before major decisions were made.

Community influence

Some respondents discussed the political challenges that prosecutors face when the community gets involved in the criminal process. Respondent #1 discussed how ignoring community sentiment could hurt a prosecutor’s chance for re-election:

Remember when I mentioned the [celebrity] incident earlier? Again, I didn’t see the police report and so I don’t know all the facts of the case, but another reason that prosecutors may not have filed charges against [an NFL player] is because he is a very popular defendant. In other words, the community really likes him. District attorneys don’t want to try popular defendants because it could hurt them in the reelection. Many district attorneys lose their jobs because they try popular defendants.

Respondent #4 discussed the tough political situation when half of the community wants the prosecutor to do one thing and the other half of the community wants the prosecutor to do another thing:

In downtown urban areas, it’s actually very difficult to convict criminals because half the population thinks the police are all liars so they just don’t want to believe any policeman … You’ll have one large group of people in these downtown urban areas who are fed up with crime and want the police to do something about it. Then, there will be a whole other group of people in those urban areas who hate anything the police do. So those two communities of people in a city who have diametrically opposed views and have a way of cancelling each other out so that the crime is allowed to continue … So, for the district attorney faced with that situation … he’s going to have twelve jurors who have to unanimously convict this person, so he’s got a difficult situation because the police and a large part of the community want him to charge him and he also knows these jurors are not going to convict him.

Respondent #5 discussed how what county or city a prosecutor is located in will dictate whether charges will be filed and what those charges will be:

The standards change depending upon where you are. The community standards of what they will hold somebody accountable for and the level of proof they require change, and it’s exceptionally dramatic here in X County; you probably don’t see anything like it except in Y County where depending upon where you are, the demographics of that community are so dramatically different that conduct could get charged that wouldn’t get charged in another area. And, the price of a case is up in certain parts of the county and down in others. For example, if a guy gets caught out here  (in City U) and he has an ounce of cocaine, out here they may charge him with possession for sale, out here they may try and jack up bail, they may want him to admit a felony and go to prison, they may want him to admit a felony and go to jail for up to a year, whereas in City Z, they may just say this might be personal use and we’ll put him in diversion. It just depends on the mores of that particular community.

Respondent #5 then discussed how these communities whose standards are focused on being punitive contribute to the overcrowding of prisons.

X County ... is probably one of the most liberal counties that there is. If you go up to W County or if you go up to V County, I mean, there are a lot of very rural counties who are sending a lot of people to prison for de minimis conduct. That’s really where the burden is being forced on the Department of Corrections. Those smaller counties are really abusing their authority in my opinion because they think that in  their community, this is terrible, and dammit, if they were in X County, they would clean the place up. They have no idea what an overburdened system really looks like, and so they really take advantage and they send people away, and then the State has to pick up the burden of their incarceration decisions. In my opinion, that’s where it’s really a problem ... and the system is breaking because of them.

Harshness of policies

Respondents also discussed how their office’s harsh policies influenced their decision-making. For example, respondent #4 explained his office’s harsh policy regarding charging suspects involved in drug crimes:

During the time that I worked as a prosecutor, our office was very strict on drugs. We had a policy to charge all drug offenses no matter what the amount of possession. Never would a district attorney in my office not charge somebody, even for a roach. If they had the slightest bit of marijuana, it would be in municipal court and would be a misdemeanor, and they would be charged for sure.

Respondent #4’s office follows Jacoby’s (1979) Legal Sufficiency Model. In the Legal Sufficiency Model, the prosecutor believes that if any case is legally sufficient, charges should be filed (Jacoby, 1979). Offices that operate under the Legal Sufficiency Model are those in which the prosecutors give little attention to screening cases prior to deciding whether or not to file criminal charges (Jacoby, 1979). Prosecutors in respondent #4’s office did not spend much time screening drug cases, but rather, chose to file charges if the prosecutors believed they could establish a prima facie case.

Some respondents admitted to allowing office policies to influence their decision to charge even when they did not agree with the charges being filed, while other prosecutors stated that they did not file charges if they did not believe in them, regardless of the policies of the office. Respondent #2 explained why he charged cases when his superiors wanted him to even though he did not think that charges were warranted:

There have been other cases where I wanted to go with a misdemeanor but my boss told me, “The policy of the office is that we try those crimes as felonies. Try it as a felony.” In that situation, you realize that you are a deputy district attorney. He is in an elected position and he has to worry about the community. And the reason why he is elected is because he represents the conscience of the community about what is a crime and what isn’t; that’s the function of the district attorney. And so when he says, “jump,” I say, “how high?” And you put your personal feelings aside, and a lot of times, you have to be able to put your feelings aside to be a good prosecutor.

Respondent #2’s statement is also an example of Jacoby’s (1979) Legal Sufficiency Model. Prosecutors in respondent #2’s office automatically charged certain crimes as felonies if the elements of a felony were met regardless of other circumstances.

Respondent #7 discussed how he did not let the policy of the office influence his decision to charge:

My ethics and the office’s ethics did not align. There was a case that they wanted me to prosecute that I didn’t want to, so I didn’t. It was a potential three strikes case … What had happened was his previous two strikes arose out of one ... event … It had gone through several series of appeals, and finally, the last appeal upheld his two strikes. When he found out, he was angry and so in his cell, he picked up a stool and threw it. It happened to hit the door’s window and cracked  it, which costs $1500. Any damage over $400 is a felony. So they wanted to use that as his third strike. He had beaten a charge; they were actually trying to get three strikes on him in the original but since he had beaten that charge, in the meeting they actually said to me, “We didn’t get him on the rape, so we’re going to get him on this.” And, I didn’t believe in that so I didn’t try the case. You’ve got to understand, X County is a very aggressive District Attorney’s Office, very aggressive. They charge a lot. In my interview, I basically told them, if I don’t feel comfortable with a case, I’m not going to prosecute it.

Even though respondent #7 did not adhere to his office’s policies, his statement above suggests that his office also followed Jacoby’s (1979) Legal Sufficiency Model in that prosecutors were willing to charge vandalism cases as felonies if they were over $400 even though other factors may have contributed to the crime that could warrant a lesser charge.

Race

It is a truism of the criminal justice system in America that minorities are punished more harshly than Whites. However (not surprisingly), none of these respondents reported their own racism. For example, respondent #2 said that he never considered a suspect’s race when making his charging decision, “Most of the time, I didn’t know the race of the suspect before   I filed charges. I didn’t even know what the suspect looked like until I saw the suspect at the arraignment, which obviously occurs after charges have been filed.”

This does not mean that latent racism did not influence these prosecutors. For  example, race may have influenced  these respondents’ decisions  to charge, but not overtly. In other words, race may have influenced their decisions subconsciously. Racism is very common in the criminal justice system and these respondents’ worked in a predominately White profession, watched mainstream media (which perpetuates negative stereotypes of minorities), experienced dealing with many minority defendants that have committed crimes, and possibly saw how police officers handle cases differently based on the races of the suspects. All of these experiences can contribute to latent racism. As a federal judge stated in United States v. Clary (1994), “… the root of unconscious racism can be found in the latent psyches of white Americans that were inundated for centuries with myths and fallacies of their superiority over the black race. So deeply embedded are these ideas, that their acceptance and socialization from generation to generation have become a mere routine” (p. 779). Therefore, although racism may have influenced the respondents’ decisions, it is simply not possible to know through this study as the respondents themselves may not be aware of the impact that race had on their charging decisions.

Decision to plea bargain

Plea bargaining is a widely used practice in the criminal justice system. For example, studies have shown that defendants plead guilty in approximately 95% of all criminal cases in the United States (Cohen & Reaves, 2006). Although plea bargaining may appear inherently unjust because it results in decreased punishment for guilty offenders, it is essential for the criminal justice system to function. If plea bargaining did not exist, prosecutors would be forced to take every case to trial. “Many believe that the entire [criminal justice] system would come to a crashing halt if the practice [of plea bargaining] were abolished” (Davis, 2007, p. 43).

Although prosecutors often use plea bargaining, they do not offer plea deals in every case. In fact, there is not a law that requires a prosecutor to offer a plea in every case. Therefore, prosecutors have the power to decide whether or not to offer plea deals and also the power to decide what those offers should be (Davis, 2007). Not many district attorneys’ offices provide guidelines to help prosecutors when making these decisions (Davis, 2007).

Discretion and the plea bargaining decision

The respondents’ offices varied regarding how much discretion they allowed their deputies to have when making plea bargaining decisions. Some respondents’ offices gave their deputies full discretion to make plea bargaining decisions while other offices gave their deputies little to no discretion when making a plea bargain offer. Respondent #4’s office gave their deputies complete discretion when making their plea bargaining decisions:

When I was a prosecutor, as a trial attorney, we had complete latitude. The only thing we had to do was be prepared to justify it to our supervisor who was the toughest, hard as nails prosecutor in the state. So you  had to be prepared to justify it to him. But, we were given latitude to make those decisions. For decisions about plea bargaining, there were really no standards at all. We could just decide. Now, there was always one limiting factor and that was, would the judge agree to it? There were very few judges who would not. But, we did have one judge, he was a great judge really, and he was a former defense attorney, and he would make his own independent judgment about whether he agreed with the plea bargain before him. And, if he didn’t go for it, the case would just be tried anyway. But, mostly we had unfettered decisions; we would just look at it and we’d negotiate it pretty much in terms of incarceration, probation, everything.

Respondent #2 expressed his frustration about how district attorneys in other counties did not have as much discretion as those in his office did when making their plea bargaining decisions:

I do not like the fact that in some cases, the person actually trying the case has no say as to what the offer is. For example, in X County, these junior district attorneys get handed these cases that are crap sometimes or are totally unfair, which will punish someone, I believe, unfairly, and the trying attorney knows it. There’s nothing that he/she can do because the senior supervisors are in their Ivory Towers and are trying to be consistent, and I believe the interests of justice are ignored that way.

Deputies in respondent #7’s office did not have any discretion when making their plea bargaining decisions:

In X County, deputy district attorneys don’t have full discretion. If they want a certain deal, they have to get their supervisor’s approval. A lot of times what will happen, at least in X County, when I decided to file charges, I would file the charges and send it to clerical and they would type up the complaint. Then, it would go to the supervisor and the supervisor would make an offer, if they made an offer. Then from there, I could make other offers but I always had to go back to the supervisor if I wanted to change the offer. So, I had very limited discretion. If I wanted to change the offer,  I had to sell him on it. Now, if I wanted to change the offer  so that the defendant would receive a harsher sentence, well, technically I had to get approval. But, it’s a completely different game when you’re asking for harsher penalties than when you’re asking for lesser penalties. If you want a harsher penalty, they were like, go for it.

When plea bargains are offered

Some respondents discussed at what point in time a plea bargain was made during the case. All of the respondents who discussed this said that plea bargains were offered at any time throughout the case. However, respondent #2 claimed that the best offers were offered early, well before the trial:

If you’re working in theory of judicial economy, what you do is, you give your defendant his very best offer in the prepreliminary stage. So let’s say you have someone who did a crime and his maximum exposure ... is 16 months-3 years. Well if it goes to jury trial, he’s going to get his 3 years. So if I offer this guy three years, he going to look at me and say, “Well I’m just going to go to trial.” ... So I’ll say, ... “If he wants to plead today before the preliminary hearing and plead for 16 months, we’ll call it a day.” But I tell him, “If things get worse, if the evidence at the preliminary hearing is strong, then the offer will go up a bit.” ... Now, district attorneys have to be very careful with this. They cannot say, “After the preliminary hearing, it’s going to go up to two years.” You can’t say that because you’re punishing the defendant for actually exercising his constitutional rights. That’s malicious prosecution and you could get disbarred But if I do the preliminary hearing and my witnesses come and my witnesses are great and my evidence is good, well that 16 months was last time … After the preliminary hearing, I will offer him two years. It is still better than the three years that he’ll get if he goes to trial.

Respondent 2’s comments reveal the fine line prosecutors walk when wielding their enormous power over the fate of American citizens. While  cognizant of defendants’ rights, they are driven by the prerogatives of the adversarial system in a highly punitive context.

Frequency of plea bargaining

Frequency of plea bargaining varied due to efficiency and a sense of justice for victims and defendants. Respondent #10 said he plea bargained “99 percent of the time.” Respondent #2 explained that the reason that he plea bargained regularly was because if he did not, the judicial system would not be able to operate:

In X County, the average district attorney had to deal with 1,000 cases or more a year. If I took every single one of those to trial, let’s say I took two a week, which is not possible, but let’s say it is, I could only cover 100 cases. For judicial economy purposes, the judicial system as we know it would crumble and stop if I did not plea bargain cases.

Unlike respondent #2, respondent #6 explained that his office plea bargained often, but they did not plea bargain to get rid of cases for judicial economy purposes:

It’s important to note that unlike maybe some other jurisdictions, during my twelve years, I was not aware of any case where just because of the volume of cases that we had, we concluded that we had to get rid of X number of cases. Obviously with the number of cases that we had, if all the defense attorneys wanted to try every case, the system could not handle it but what I’m saying is, just the approach of the defense attorneys, public defenders especially, who are looking to get rid of cases that shouldn’t take a lot of time where a result that is mutually acceptable to both sides can be worked out, will initiate that.

Respondent #7 stated that he hardly ever plea bargained:

There wasn’t a lot of plea bargaining in X County. We tried almost every case … They shut down the civil courts in X County so they could do their criminal calendar because there are too many … A lot of times, prosecutors would go to trial because if they plea bargained, the judges could change the sentence. You’ve got to understand that judges have a limited amount of discretion. They can’t change the actual charge, but when you’re talking felonies and your average run of the mill felony carries a sentence of sixteen months for the low term, two years for the mid term, and three years for the high term. So your plea bargain is, I want the mid term, so plead to this and you’re going to plead to two years. Well the judge can, without changing the charge, say, “No, I’m going to give him sixteen months.” … X County, the last year I was there, tried more cases to jury trial  than Y County did, and X County has 40 less judges than Y County … You were going to trial a lot because they didn’t make plea bargains.

When probed about why his office did not plea bargain, respondent #7 said:

I think it boils down to politics and money. You know, they are all trying to get their budget increased. The more convictions you have, the more cases you take to trial, at least in X County, and in X County to be fair, they were short 20 judges that they should have had due to the population increase. Their philosophy was, we’re going to take all these things to trial and show them that we need the judges so that we get them. But, I think when you do that, you’re messing with people’s liberty, and that’s a line I chose not to walk.

This is an example of how prosecutors abuse their discretion to get what they want. X County wanted more judges so they decided to try every case. This is obviously unfair to defendants in X County, who are pawns in a political game played by the District Attorney.

Relationship with defense counsel

Respondent #5 discussed how the relationship between the defense counsel and prosecutor can influence a prosecutor’s plea bargaining decision. Respondent #5 is currently a criminal defense attorney, and has maintained the friendships with the prosecutors he used to work with. He explained how those friendships have influenced prosecutors to give his clients a better offer than they would have given defendants with an unknown defense attorney:

Oh, it’s huge. Huge. I mean, I can’t de-emphasize that. Let me put it this way, some of these guys, because I was there 10 years, are really good family friends; my kids are friends with their kids, we vacation together, we’re friends. As a defense attorney, I don’t know if I get better deals because I know the prosecutors, but human nature would suggest that the deals are not worse. Anytime you can have personal credibility in a negotiation setting, it makes things easier. But, there is a certain line that cannot be crossed. I can’t ask them to do anything, and I wouldn’t ask them to do anything that is inappropriate, that could get them in trouble, to dismiss somebody who is guilty, unless I can project to them a compelling reason why.

Media

Two respondents discussed how the media influenced prosecutors’ decision to plea bargain. Respondent #9 said:

Clearly the media influences prosecutors’ plea bargaining decision. Look at all the cases in Los Angeles with all the celebrities. In those cases, the district attorney usually screws up because they are trying to appease the media or the public without the facts of the case so it definitely affects decisions. On a case where there is media interest, the district attorney tries to do it right and tries to look at it carefully, but they also tend to, in my opinion, don’t give it away because then everybody will say, “You’re doing that because they are celebrities” and so sometimes those people don’t get a plea bargain at all. You know, all district attorneys are, a lot of them are political animals, a lot of them want to be judges or the district attorney, an elected official and get their name in the paper a lot.

Respondent #2 discussed when a prosecutor would be more inclined not   to offer a plea bargain. He mentioned three types of cases that a prosecutor would not offer a plea bargain—murder cases, three-strike cases, and cases involving the media:

Almost all cases you’re going to plea bargain. The cases  that you wouldn’t would be murder. You might not offer a plea bargain to a three striker if they are all violent felonies and the third is a violent felony as well. Or if the crime was horrendous and well publicized, a DA would think twice before giving a plea bargain. Publicity absolutely has an effect on district attorneys. Your boss generally lets you go about and do your business. If it is a well publicized case, you know, a big enough case that your boss hears about it, he’s going to have a seat in your office and ask you what you’re doing, what your feelings are about the case, what your offer is going to be, etc. He will make you state your case as to why that is your offer. He might lean on you to do one thing or lean on you to do something else.

The respondents’ quotes suggest that prosecutors are worried that if they offer plea bargains in highly publicized cases, that they will appear “soft” on crime and thus will upset the public as a result. Therefore, they are often likely not to offer plea bargains in such cases. This is another example of how neoliberal punitivism influences prosecutors. Elections provide structural incentives for prosecutors to bring more cases to trial and seek harsher punishments, which in turn feeds the crisis of mass incarceration. 

Other prosecutorial decisions

We asked all respondents about how they decided to try juveniles as adults and how they decided to seek the death penalty. Not surprisingly, responses to these questions were far more limited than questions about basic prosecutorial functions of charging and plea bargaining. Indeed, only the respondent who was the elected district attorney had much to say on these topics. Most of his response focused on evidence and provability, but one comment about charging juveniles is worth mentioning because it reveals an awareness of bias:

You run into some iffy things there. Don’t get me wrong, sometimes if it is a concerned family and a responsible family, that could have an impact on their life, it certainly would be a consideration when I make my charging decision. African-American leaders are very sensitive to this, and I think rightly so. A lot of times in our suburbs with the juveniles, we don’t even see them because the police department will look at Johnny and think, oh Johnny comes from a good family and yeah he got into a little trouble but we’re not really going to push this thing. The poor kid down in the inner city does exactly the same thing and the police look at him and say, “Come on in buddy.”

Although this quote is about police conduct and not that of prosecutors, it    is still important to note because of the influence that the police have on prosecutors’ decisions. For example, respondent #2 reported that he relies on law enforcement officers to be his chief witnesses. This quote is a clear example of labeling of minority children and treating them differently than White children. The fact that respondent #2 is aware of the racial bias between police officers and minority children suggests race may indirectly influence his decisions to charge juveniles as adults.

Non-transparency, harshness, and limits to prosecutorial power

Several things stand out from our research. First, this study demonstrates empirically that prosecutors work in contexts of non-transparency. Aside from Shanda’s experience with the DA in her county which gave this paper its title, several respondents referred obliquely to invisible power and respondent #7 explicitly discussed a culture of secret power:

I know in one county, there is a judge who ruled to allow discovery that all the good defense attorneys usually want. That didn’t sit well with the district attorney’s office so now that district attorney’s office will not let that judge hear any of their cases. They pretty much banished that judge. District attorneys have a tremendous influence over judges. I don’t think you’ll ever be able to get anyone that will actually say that other than me.

That the most powerful figure in American criminal justice—the prosecutor—operates behind an opaque wall of secrecy is anti-democratic and reflects the still-resonant hegemony of America’s neoliberal project of unchecked state punitiveness that has been ongoing for several decades, even if it is, in some senses, perhaps abating.

One major objective, then, is for this study to be understood as a record of prosecution during the peak of this program of harsh punishment and mass incarceration. For example, recall a quip made by Respondent #3 when discussing statutory rules influencing plea bargaining: “If you have possession of methamphetamines, it’s a mandatory ninety days.” A sentence of ninety days in jail for simple possession of a controlled substance—even if actual time served is considerably less—is exactly the kind of overkill sanction associated with the war on drugs and the concomitant era of mass incarceration. In 2016 in California, this crime would be a misdemeanor.

Another example of harsh punishment is the norm in district attorneys’ offices described by respondent #7 where “bargaining down” requires approval, but not “bargaining up”:

Now, if I wanted to change the offer so that the defendant would receive a harsher sentence, well, technically I had to get approval. But, it’s a completely different game when you’re asking for harsher penalties than when you’re asking for lesser penalties. If you want a harsher penalty, they were like, go for it.

Beyond the evidence of opaqueness and punitiveness in these data are the many non-legal factors respondents reported influencing their decisions. In the above section, we discussed how requests from victims, pressure from law enforcement, relationships with defense counsel, the high profile of cases, and the influence of the community all influenced how these tremendously powerful government agents made consequential decisions about the fates of many American citizens. We argue that these practices are largely invisible and implicitly condoned by American society because of the elevated position the prosecutor has enjoyed during neoliberal punitivism.

Moreover, the cultural scene of prosecution entails a zero-sum approach to litigation, where “winning is all that matters” and invisible quotas exist. When talking about his views regarding winning and losing cases, respondent #2 said:

As for prosecutors’ records regarding the number of cases,  I don’t know if it was super important. CHP officers are not supposed to get rated on how many tickets they give, but if you’re giving fewer tickets than everybody else, you’re in trouble. Same thing with district attorneys. If you’re doing jury trials and you’re not winning your fair share, then it reflects badly on you and on the office because the bottom line is, your job is a litigator and you have to preserve the community and protect the community, and if you can’t win a jury trial, and guilty people are walking, you won’t stay long in any office. They’re going to let you go. You know, being a deputy district attorney is a step to becoming a judge and it is a step for political appointment. So if those are your goals, then you better be winning your cases.

America’s adversarial system emphasizes success in a zero-sum game rather than any sense of justice.

Another theme here is that there are limits to prosecutorial discretion. Although deputies have a tremendous amount of discretion, the elected district attorneys have the power to regulate deputies’ discretion and a norm of automatic opposition to the defense pervades. As respondent #5 puts it:

Prosecutors have their guidelines, which are often very inflexible. In fact, I was in court about a month ago on a case where I was trying to get, I represented the woman in a domestic violence case and the district attorney’s office had not filed charges … Even though they didn’t charge her, she still had an arrest record … There is a remedy where you can file a motion with the court to basically destroy your arrest record, but it’s very difficult to get … I filed the motion and the judge called us to the side bar and he asked the district attorney, who was a colleague of mine when I worked there, “Jonathan, why are you opposing this?” My response was, … “Because they always do.” The judge replied, “I’m not asking you.” Jonathan was like, “Uh, but,” and the judge was like, “No” and just shooed him away and he granted my motion. They just oppose everything because that’s what they do. And, there’s no flexibility at all.

When prosecutors have limited flexibility (i.e., discretion), as in the example provided by respondent #5, it can sometimes lead to unjust results. Another example comes from respondent #8:

Okay, so I had been in the office for six months and I’m still waiting for my first evaluation by my first line supervisor who was the overall supervisor for all the people doing trials. I get kicked out to the courtroom and it’s a bench trial. I’m in front of a judge … It’s a DUI, it was an accident and the cops came on the scene. There were four people in the car and … they determined it was a particular person, one of the four, that was driving. The person had a prior so we put the case into the system … We charged the guy with a DUI with one prior. As I was hearing the testimony, I was sensing that we got the wrong person … We went back to the office and as we were doing research, we found that there was another person in the car that had two prior DUI’s and that we sensed based on what we were hearing and what we discovered, that the person that was really driving was the guy that had the two priors … From our perspective, I came to believe with some certainty that we got the wrong guy … So I went to my supervisor and I said, “Listen, I’ve researched this and I really believe we’ve got the wrong guy. I would suggest, if you give me the authority, to go to Judge Edwards on behalf of the People and dismiss the case as to the defendant that we charged, and re-file it against this other person.” My supervisor said, “No. The policy of our office is, once it’s kicked out to trial, bench trial or jury trial, it’s in the hands of the judge or it’s in the hands of the jury. So, let them decide.”

Although respondent #8’s supervisor eventually allowed him to have more discretion and he decided to dismiss the charges and file against the other person, respondent #8 was reprimanded for it. We note that although these examples demonstrate bad consequences due to limits on discretion, it is also the case that prosecutors in major free democracies elsewhere in the world—notably Japan—have considerably more discretion and power than American prosecutors (Johnson, 2002). Even during punitive neoliberalism, the unchecked power of American prosecutors pales in comparison to prosecution in Japan. We mention this in the spirit of fair treatment to prosecutors in the USA; their power is strong and concentrated, but not totally unchecked.

Conclusion

It has been said that prosecutors are the most powerful officials in the criminal justice system (Bubany & Skillern, 1976). They have the exclusive power to decide whether or not to charge a person with a crime, what the specific charges will be, whether or not to dismiss charges, whether or not to plea bargain, whether or not to try a juvenile as an adult, and whether or not to seek the death penalty. The American prosecutor exercises largely unfettered discretion when it comes to making these decisions (Albonetti, 1987; Jacoby, 1980; LaFave, 1970; McDonald, 1979) and their discretion is also virtually unreviewable.

The findings of this study suggest that there is not consistency in how prosecutors make decisions and that, while prosecutors certainly consider legal factors, they also rely on extra-legal factors to make decisions. There are few rules governing what factors prosecutors must consider (or not consider) or how much weight should be given to each factor when making their decisions. Because there are few regulations, prosecutors are allowed to use their discretion, and sometimes rely on factors that have nothing to do with facts or law, such as their relationship with defense counsel or the judge. The fact that such arbitrariness is tolerated in the USA arguably reflects the hegemony of the neoliberal program of punitive governance that has presided since the 1980s. Of course, because we did not compare these prosecutors  to prosecutors from a previous era in the USA, or to a different country, we cannot make a causal argument. We can say, though, that our subjects were working during a period of extremely high stakes, in terms of punishment, and that their discretion had profound material consequences for probably thousands of individuals. And, as we show above, many of them explicitly and implicitly reference aspects of neoliberal punitivism in their interviews.

Moreover, regional differences in criminal justice practices in the USA are extreme and highly localized. Even under a general national trend toward harshness, there are pockets of exceptionally aggressive prosecution  in some places and pockets of lenient, more restorative prosecution in other places—sometimes in the same state. Studying the charging practices of prosecutors in a systematic manner is extremely difficult; we unsuccessfully attempted to do so in a previous study (Kaplan, Ganschow, Angioli, & Tabin, 2009). But we would speculate that differences in decision-making and charging are vast among the DA offices in; for example, Orange and San Francisco Counties in California.

One very clear indication of radical regional variation is the empirical evidence on death penalty activity in the USA. Liebman and Clarke (2011) have shown that between 1976 and 1995, “16% of the nation’s counties (510 out of 3,143) accounted for 90% of its death verdicts” (p. 265), and that these disparities generally hold up when only considering capital states, and also when including the years since 1995 (see p. 264-266). The death penalty in America exists only in a very few locations. Without undertaking a literature review on the topic, we suspect that many other examples of variation in criminal justice practices could be found. Indeed, across the ten subjects of this study, there was significant difference in prosecutor office policies and individual prosecutors’ decision making practices. As we have suggested above, this creates different legal outcomes for similarly situated defendants—the definition of arbitrariness. We recognize, though, that regional differences also reflect the local values of the communities in which prosecutors operate, which is to be expected. While we find the arbitrariness of difference troubling, we can see at the same time that it is, in a sense, democratic. Whether this is a communitarian ethic at work or simply a consequence of crass electoral politics is hard to know.

Implications for future research

Although this study provides some insight as to how prosecutors make their decisions and also identifies factors that influence those decisions, further research is needed. This study is obviously limited by its small number of interviewees and limited coverage of a few counties in two states. A sustained program of study on prosecutors in terms of transparency and accountability is seriously wanting in the USA. We see this research as generative—our hope is that it can function as a small indicator about the practices of prosecutors working during the era of punitiveness, and spur others to investigate the practices of the most powerful figures in America’s criminal justice system.

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Contributor

Shanda Angioli is a clinical forensic psychologist. She received her M.S. in Criminal Justice and Criminology from  San  Diego  State  University in 2014 and her Psy.D. in Clinical Forensic Psychology from the California School of Forensic Studies at Alliant International University, San Diego in 2015. Prior to pursuing a degree in psychology, Dr. Angioli worked as a paralegal in civil litigation. Her areas of research include prosecutorial decision-making and measuring sexual interests in those arrested for sexual crimes against children. As a psychologist, she has conducted psychological and neuropsychological evaluations of defendants in state and federal criminal cases on a wide variety of psycho-legal issues including questions of competency, questions of insanity, risk assessments, mitigating factors, and psychosexual evaluations. Dr. Angioli has also provided treatment to sex offenders on parole.

Paul Kaplan is an Associate Professor of Criminal Justice in the School of Public Affairs at San Diego State University, and the former President of the Western Society of Criminology (2013-2014). He received his PhD in Criminology, Law and Society from the University of California, Irvine in 2007. Prior to entering academics, Dr. Kaplan worked as a mitigation investigator on capital cases. His primary research areas are capital punishment and cultural criminology, but he also works on projects involving socio-legal theory and comparative law. His work has appeared in journals such as the Law & Society Review, Theoretical Criminology, and Law & Social Inquiry. His book, Murder Stories: Ideological Narratives in Capital Punishment was published in 2012. He is the co-creator of the Art / Crime Archive: www.artcrimearchive. net. Dr. Kaplan is the corresponding author and can be contacted at San Diego State University, 5500 Campanile Drive, San Diego, CA 92182-4505. 619594-2350. [email protected]

Acknowledgement

The authors would like to thank the anonymous reviewers of Journal of Qualitative Criminology and Criminal Justice and Emily August for their comments on this paper.

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