Inside the Black Box of Prosecutor Discretion

Christopher Robertson - Boston University School of Law and University of Arizona James E. Rogers College of Law
Megan S. Wright - Penn State Law, Penn State College of Medicine, and Weill Cornell Medical College
Shima Baradaran Baughman - University of Utah College of Law
Vol. 55
April 2022
Page 2133

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what types of information prosecutors rely upon when making their decisions. Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.

Until now. We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms they would seek, and explain their decisions. We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.

Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness. Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration. We also find that many prosecutors lack meaningful guidelines or supervision. Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering the offender’s mental health and financial wherewithal. From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.
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