The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.
Brett Curry and Banks Miller
Christina L. Boyd and Adam G. Rutkowski
Trial court judges are often referred to as the workhorses of the judicial system. This is unsurprising given that millions of civil and criminal cases are filed and resolved in U.S. state and federal trial courts each year. Very few of these cases ever reach appellate courts, meaning that trial courts are often the first and only court with which people directly interact. At the same time, trial courts can make local and national policy, both in individual cases and in the aggregate. This important role of trial courts and their actors has not gone unnoticed by scholars across social science disciplines. One can consider trial courts in a broad sense by tracking the historical developments that led to the trial courts in the United States. As caseloads have increased, trial courts—particularly those with specialized jurisdictions—have been created out of necessity. State trial courts feature variation in their judicial selection methods, including elections and appointments. At the federal level, increased polarization has led to contentious partisan confirmation battles for federal trial court judges. Trials are a rare occurrence, with plea agreements and settlements being the most frequent methods of resolving cases. To understand trial court actor behavior, it is important to remember that state and federal trial courts sit at the bottom of their judicial hierarchies. The preferences of their hierarchical superiors, along with the presence of high trial court caseloads and the rarity of trials, rein in judges’ discretion and the potential effects of their personal characteristics and attitudes. Because of these judge constraints, actors such as prosecutors, defense attorneys, and juries play a significant role in trial court outcomes. As the literature reveals, the “repeat players” in trial courts hold significant advantages over less experienced litigants and attorneys that affect their likelihood of gaining favorable outcomes, among other things. Race and gender of these actors can have significant effects on behavior in certain types of cases. There are many hurdles that remain for scholars seeking to study trial courts. For example, state trial courts, in particular, continue to be difficult to study empirically. This is due largely to a lack of data availability. Relatedly, scholars must continue to strive to find ways to study trial court outcomes and events that do not lead to published opinions—for example settlements, plea bargains, prosecutorial declinations, and many decided motions. Each of these involves important decisions and outcomes that affect parties and may be affected by judges and lawyers.