Show Summary Details

Page of

Printed from Oxford Research Encyclopedias, Politics. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice).

date: 29 November 2021

American Prosecutors as Principals and Agentsfree

American Prosecutors as Principals and Agentsfree

  • Brett CurryBrett CurryDepartment of Political Science and International Studies, Georgia Southern University
  •  and Banks MillerBanks MillerDepartment of Political Science, Public Policy, and Political Economy, University of Texas at Dallas

Summary

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.

Subjects

  • Policy, Administration, and Bureaucracy
  • Political Behavior
  • Politics, Law, Judiciary

The Power and Responsiveness of American Prosecutors

Every modern government empowers officials to bring the criminally accused to justice on society’s behalf. By virtue of their responsibilities, those officials—prosecutors, in the American context—are “potentially the most powerful figures” in any country’s justice system (Tonry, 2012, p. 1). In wielding that power, prosecutors in the United States occupy unavoidably political positions. The vast majority of local prosecutors are elected, and, not surprisingly, there is substantial evidence of their responsiveness to public opinion (see Nelson, 2014; Wright, 2017). Typically headed by officials called district attorneys (or state attorneys or state solicitors), more than 2,000 local offices exist to prosecute state felony cases. These offices may consist of a single county or a collection of counties, and 4-year terms are the norm for district attorneys (Krumholz, 2019). United States Attorneys (USAs) supervise 93 offices that undertake prosecutions in the name of the federal government across the country. The nomination of USAs by the president and their confirmation by the Senate imbues the work they do with democratic responsiveness and political accountability; they serve at the pleasure of the president (Miller & Curry, 2018).

This responsiveness would be impossible in the absence of significant prosecutorial discretion. That discretion begins with the decision to pursue a case or to decline to prosecute it, a necessary choice in light of finite resources that is likely to be influenced by broader enforcement preferences and policy perspectives. Even once the decision to prosecute has been made, myriad choices must follow (see Miller & Curry, 2019). Discretion is also observable in sentencing, where, in the view of some, factors like plea bargaining have produced a system of “prosecutorial adjudication” (Lynch, 1998) that has elevated “the prosecutor, rather than a judge or jury” to the role of chief factfinder (Lynch, 2003, pp. 1403–1404). If anything, prosecutorial discretion has been accentuated by increases in the criminal justice system’s complexity. This growth in complexity has facilitated the ability of prosecutors to steer cases to the outcomes they prefer (Sklansky, 2016, p. 498).

In important respects, this American vision of prosecution is atypical. U.S. prosecutors are a component of the executive branch and, as such, they operate independently of the judiciary. Prosecutors in many other areas of the world have more limited discretion, operate more formally within the judiciary, and are more akin to career civil servants (Miller, 2011). “In most developed countries . . . prosecutors are resolutely nonpolitical and nonpartisan. They are expected to make decisions about individual cases on the merits, without regard to public attitudes, opinion, and emotions or to politicians’ preferences or priorities” (Tonry, 2012, p. 2).1 In the United States, however, the separation of powers effectively renders prosecutorial decisions “immune from judicial review” (Tonry, 2012, p. 5) and gives prosecutors “discretionary privilege unmatched in the world” (Albonetti, 1987, p. 292).

These twin realities—wide discretion and the importance of politics—point to something else that distinguishes American prosecutors from most of their global counterparts, whose career progression tends to be more bureaucratically ordered. Putting aside the need to perform adequately enough to maintain one’s position, prosecutorial service in the United States is typically a stepping stone to more advanced positions down the road (see Miller & Curry, 2019; Nelson, 2014; Shugerman, n.d.; Wright, 2012). Many prosecutors are drawn to the higher salaries typically associated with private practice. Some are able to leverage their connections with politicians or popularity with the public into federal or state judgeships. Still others will mount campaigns for legislative or executive positions. The existence of these career prospects incentivizes American prosecutors to operate in ways that can improve their odds of attaining coveted positions in the future (Bandyopadhyay & McCannon, 2014; Bibas, 2009; Unah, 2009).

Despite their undeniable importance, American prosecutors have historically been afforded an inadequate level of attention by the scholarly community. To a degree, that is a consequence of the fact that much of what prosecutors do is hidden from ready public view and, thus, scholarly observation (see Davis, 1969; Gordon & Huber, 2002, p. 335). This is unfortunate because prosecutors sit at the hub of the justice system. Their decisions “shape the types of cases that judges hear,” making their behavior especially consequential for judicial outputs (Nelson, 2014, p. 118). American prosecutors bridge numerous divides in the criminal justice system. According to Sklansky (2016, p. 499), who referred to prosecutors as “mediating figures,” the divides include cleavages “between adversarial and inquisitorial justice, between the police and the courts, and between law and discretion.”

This gap in scholarship has narrowed in recent years, as the prosecutorial role’s importance has become even more evident and scholars have leveraged theoretical perspectives in efforts to better understand it. No perspective has been a stronger catalyst for this reawakening than the idea of viewing prosecutors and their behavior through the lens of principal–agent theory (PAT) (see Gordon & Huber, 2009; Miller & Curry, 2019; Perry, 1998; Whitford, 2002). Many canonical aspects of principal–agent relationships, including control over assistants, responsiveness to superiors, and the inevitability of asymmetrical information, are directly applicable to the work of state and federal prosecutors. Considering prosecutorial activity from this theoretical perspective has shed light on discretion in charging and sentencing, the relevance of politics to those decisions, and the ways in which legislative and judicial developments may have affected those considerations over time. In turn, such considerations have implications for the future career prospects of American prosecutors as well.

Prosecutors as Principals and Agents

Principal–agent relationships are pervasive in modern society, and their existence has become a mainstay of investigations into governmental figures who possess discretion via delegated authority.2 According to Gordon and Huber (2009, p. 149) the key insight of PAT as a tool for studying prosecutors “is that prosecutors (both chief prosecutors and their subordinates) are embedded in the larger criminal justice system and the placement and interconnectedness with other actors fundamentally alter their behavior.”

American prosecutors are embedded in this larger system as both principals and agents.

Most state prosecutors are chosen by the voters in elections of some sort. Prosecutors selected in this way are primarily the public’s agents, because it is the voters who are directly responsible for their selection and control. Like their federal counterparts, these district attorneys head offices of varying sizes that are populated with subordinates who have agendas or aspirations of their own (see Gordon & Huber, 2009, pp. 137–139). Regardless of a prosecutor’s mode of selection, PAT is predicated on rationality—the idea that delegating authority to prosecutors will ultimately help their principals accomplish important policy goals (Perry, 1998, pp. 135–136). But a necessary result of that delegation is informational asymmetry, which Miller (2005, p. 203) described as the existence of authority “on one side and informational advantage on the other.” Though they are formally accountable to principals, the informational advantages that substantive expertise and proximity to ground-level decisions afford inject slippage into oversight efforts. The same is true of a prosecutor’s own inability to know and observe everything his or her own subordinates do.

At the federal level, USAs are most formally agents of the presidents who nominate them to serve. But they are also accountable to other important national principals, including the Attorney General and others in the Justice Department (DOJ) as well as members of Congress (see Perry, 1998; Richman, 2009; Whitford, 2002 ). USAs are simultaneously principals themselves—they oversee ambitious Assistant U.S. Attorneys (AUSAs), who, as civil servants, will not necessarily share the priorities of their politically appointed superiors. Indeed, the increasing careerism of AUSAs has exacerbated the potential for such divergent priorities and made it more challenging for USAs to supervise the line prosecutors beneath them (Lochner, 2002; Suthers, 2008, p. 112). AUSAs have even been known to refer to USAs as “tourists” because of their more transient, politically calibrated tenures (Eisinger, 2017, pp. 164–165).

Given the inevitability of informational asymmetry, principal–agent perspectives emphasize the concepts of moral hazard and adverse selection. The latter refers to the danger of choosing agents who are out of sync with the principal’s preferences or goals, while the former recognizes that it is impossible for principals to observe everything their agents do (see Miller & Curry, 2018, p. 385). In an ideal world, voters or appointing officials would have perfect information about how potential agents would behave, but they do not. The fact that prosecutors are agents with significant discretion makes their selection especially key (Brehm & Gates, 1997). But many voters are inattentive or unsophisticated, making them poorly prepared to comprehend a potential prosecutor’s true preferences. Federal principals might be more sophisticated, but they are subject to the institutional constraints that govern the appointment process. All this requires principals to rely on measures that can help them monitor prosecutorial agents, measures that are themselves imperfect.

When voters are the principal, the expectation is that they will “condition their electoral behavior on observable incumbent performance in a way that induces maximal effort or ideological fealty from the official” (Gordon & Huber, 2009, p. 139). In other words, they make inferences about the agent based on observations about the agent’s performance—the convictions obtained or the sentences that result from them. According to Gordon and Huber (2002), it is rational for voters to use conviction rates to evaluate prosecutors. This, in turn, incentivizes prosecutors to take up some cases they might otherwise not pursue. Though attention to prosecutorial performance can be constructive and has advantages from an oversight perspective, it also harbors danger for the politicization of justice. Sklansky (2017a, pp. 673–674) called this “prosecution by plebiscite” and used the 2015 race for district attorney in Montgomery County, Pennsylvania, as a case in point. It was here that incumbent Bruce Castor had cited “insufficient credible and admissible evidence” in deciding not to prosecute Bill Cosby for sexual assault in 2004; he lost his 2015 bid for reelection to Kevin Steele, who made the Cosby case a focal point of his campaign and accused the incumbent of “not looking out for the victims” of Cosby’s behavior (Olheiser, 2015).

Though arguably more sophisticated, federal principals must also monitor prosecutorial performance, and they face challenges in doing so. The George W. Bush administration was especially notorious for its “statistics happy” mentality, which included careful attention to performance metrics, such as the number of prosecutions brought and the convictions that resulted in different priority areas (Miller & Curry, 2018, 2019; Richman, 2009). According to Chesney (2007), for example, USAs reclassified many identity theft cases as “terrorism” in an effort to make their numbers in this area appear more substantial to DOJ monitors after 9/11. However, even the laser focus on performance metrics has its drawbacks. One complication is the physical distance between Washington and the U.S. Attorneys’ offices. Another is that no prosecutor, state or federal, can be fully insulated from the activities of others—prosecutors’ success at obtaining convictions depends on judges and juries, and their ability to bring charges is contingent upon law enforcement officials’ bringing adequate cases to them (Gordon & Huber, 2009, p. 143). And, in the case of the Bush administration, critics argued that top-line monitoring missed significant nuances about the quality of the cases being selected for prosecution (Office of the Inspector General, 2008, p. 286).

The influence of American prosecutors poses something of a contradiction, especially when they are viewed as principals over line prosecutors in the offices they lead while also being actors embedded within the broader matrix of courts and law enforcement. On the one hand, it is natural for the vast potential of their power to stoke unease about the ways in which it might be utilized. On the other hand, others celebrate prosecutorial power and laud chief prosecutors who attempt to spearhead progressive changes, such as reform of the cash bail system, deferring low-level marijuana prosecutions, and embracing plans to curtail mass incarceration. Yet, it is important to remember that even in their role as principals, lead prosecutors routinely find that the vicissitudes of judges, police, and even subordinate prosecutors can frustrate their administrative vision in meaningful ways (Cohen, 2019).

Prosecutorial Discretion

The exercise of discretion by American prosecutors is significant and widespread. The outsized importance of the charging decision, which Gershman (1993, p. 513) called “the broadest and least regulated power in American criminal law,” stems from the fact that all other aspects of a case depend upon it. This reality has only been accentuated by the pervasiveness of plea bargaining and the existence of mandatory minimum sentences. As one former federal prosecutor put it,

If you push and pull a whole lot, you can reach almost any conclusion you want about what you actually charge a person with. . . . And that’s the whole ballgame. You can call the same act by several names, and each one brings about a different result in prison time. (Flaherty & Biskupic, 1996)

For example, if someone is arrested with some amount of cocaine, a prosecutor might charge them with mere possession, possession with the intent to distribute, or cocaine distribution—associated sentences could represent the difference between a misdemeanor or a felony, or months in prison as opposed to years (Davis, 2005). The decision not to prosecute is an equally important element of discretion, and those decisions are not subject to judicial review (Bay, 2006, p. 552).

The localized nature of the criminal justice system in the United States makes a certain amount of discretion inevitable (Wright, 2012, pp. 211–212). Most fundamentally, there can be a good deal of variability across jurisdictions in terms of the mixture of cases prosecutors face—at the federal level, immigration issues disproportionately arise in districts on the border, whereas the concentration of white-collar prosecutions is very high in a small number of large cities (Miller & Curry, 2019, p. 4). Unique local priorities combine with the reality of unevenness in the distribution of varieties of criminal cases for local district attorneys as well (Perry, 2006).

Another element of discretion related to prosecutors’ charging decisions is whether, and when, federal prosecutors should take over state-level prosecutions when the filing of both federal and state charges could occur (Stith, 2008, p. 1423). There is evidence that prosecutors at the federal level are more likely than their state counterparts to engage in pretextual prosecutions and to charge individuals with more minor crimes who have come to their attention by way of more serious allegations that are unlikely to lead to conviction. The very notion of pretextual prosecutions is, itself, an exercise of discretion (Richman & Stuntz, 2005) and these sorts of discretionary decisions are rarely reviewable (e.g., Krauss, 2009).

Mandatory minimum sentencing laws have had important implications for the ways in which prosecutorial discretion at the charging stage spills over into sentencing. The existence of high mandatory minimums makes the charging decision dispositive of the sentence in many areas (Starr & Rehavi, 2013; Yang, 2014), and Bjerk (2005) has equated prosecutorial discretion under mandatory minimum sentencing with “making the crime fit the punishment.” Mandatory minimums existed in every state and at the federal level by the mid-1990s (Tonry, 1996), and there is evidence such laws bestow added discretion on forward-thinking prosecutors. For example, Tonry (1996, p. 147) noted that prosecutors “often avoid application of mandatory sentencing laws simply by filing charges for different, but roughly comparable, offenses that are not subject to mandatory sentences.” According to Bjerk’s (2005, p. 593) research, a failure to account for this type of prosecutorial discretion inflates the effect of mandatory minimum laws on sentencing by about 30%. Another key finding of his study is that prosecutors are nearly twice as likely to reduce felony arrests to misdemeanors when the initial arrest charge would trigger the application of a three-strikes law at sentencing—in other words, prosecutors “alter their discretionary behavior in response to three-strikes laws” (Bjerk, 2005, pp. 622–623).

Others have highlighted the role of prosecutorial discretion vis-à-vis mandatory minimums somewhat differently. As an example, Kessler and Piehl’s (1998) investigation of a California repeat-offender mandatory minimum sentencing law concluded that DAs in California exercised their discretion to increase the sentences of those who committed similar crimes not covered by the new law in the ways they crafted plea offers. Despite some important differences, the import of prosecutorial discretion is a consistent theme of these studies.

Fact-bargaining represents an additional way for prosecutors to utilize their discretion to influence sentencing. Here the prosecution and defense reach an agreement about the facts that will be submitted to the court as part of the official record, which may contain important omissions that could enhance the sentence automatically—for example, the omission of the use of a firearm in a robbery from the official record. Even when superiors, whether they be the chief prosecutor’s principals or the chief prosecutor him- or herself, in seeking to manage assistant prosecutors set parameters with the intention of constraining this discretion, they are usually unsuccessful (see Miller & Curry, 2019, p. 106; Stith, 2008). In response to the 2003 passage of the PROTECT Act, a portion of which aimed to reduce “downward departures” from sentencing guidelines, Attorney General John Ashcroft issued a memo to USAs designed to prohibit fact-bargaining. The Ashcroft memo mandated that all sentencing recommendations “be fully consistent . . . with the readily provable facts,” but, even here, determining what constitutes facts that are “readily provable” in a given instance effectively left that determination to prosecutorial discretion (see Brown & Bunnell, 2006, p. 1068).

During the early 2000s, a series of U.S. Supreme Court decisions altered the dynamic around the sentencing guidelines by transforming them from mandatory to advisory. For federal sentencing laws, the key case is U.S. v. Booker, decided in January of 2005. Scholars studying this shift from mandatory to advisory guidelines suggest that it has empowered local decision makers (the USAs) and lessened some degree of centralized control (Stith, 2008). It may also have increased USA responsiveness to the policy preferences of district court judges, given that those judges also have increased discretion in sentencing under the advisory guidelines (Yang, 2014). Miller and Curry (2019) investigated the effect of the changes wrought by Booker on the discretion exhibited by USAs in sentencing. They found evidence that the policy preferences of USAs became more important in determining sentence length in several of the issue areas they studied (Miller & Curry, 2019, pp. 120–121).

States had also created mandatory sentencing guidelines. In a series of cases starting with Apprendi v. New Jersey (2000), the Supreme Court chiseled away at the state mandatory sentencing guidelines, largely on the basis of Sixth Amendment claims of the right to a jury trial. Essentially, the Court held that any facts leading to an enhancement of a sentence beyond the statutory maximum had to be submitted to a jury and proven beyond a reasonable doubt. Some commentators expect that the decisions in the Apprendi line of cases will shift power to state prosecutors largely via charge bargaining and increased penalties for defendants who choose to go to trial (because defendants can no longer plead guilty and get a hearing from a judge on the fairness of their sentence; Bibas, 2002; Frase, 2006; Iannacchione & Ball, 2008).

Prosecutors and Politics

American prosecutors are personifications of a paradox. They are servants of the public in a democracy where ultimate accountability rests with the people, but they are also expected to be objective and to do their work “without fear or favor” (Klobuchar, 2015). They may answer to the public, but they also have a responsibility to do justice (Sklansky, 2017a, p. 512). As one former federal prosecutor put it, “The process of selection is political, but once you are there, you can’t be political” (quoted in Miller & Curry, 2019, p. 9). The idea that prosecutors “can’t be political” is a complicated assertion, because the mere idea of prioritizing the prosecution of certain types of cases at the expense of others is, at its heart, a political choice (Lochner, 2002; Perry, 1998). It is the exertion of political considerations in the handling of specific cases that observers tend to find most objectionable. Nonetheless, the centrality of politics to their selection process cannot be seriously disputed.

Because the nation’s USAs are nominated by the president and must be confirmed by the Senate, the mechanics of that process are thoroughly political. USA nominees are subject to processes that can effectively give home-state senators the ability to veto a nomination. Most notably, norms of senatorial courtesy dictate that presidents will give particular solicitude to the views of same-party senators if they represent the state associated with the appointment (Miller & Curry, 2019). Nelson and Ostrander (2016, p. 211) identified this selection process as the most important factor in determining how USAs work, and it is a process rooted in partisan and ideological criteria (Tonry, 2012). As political appointees, USAs serve at the president’s pleasure and typically leave office in conjunction with the president’s departure (Miller & Curry, 2019, pp. 8–9). One particular investigation into the unusual firings of nine USAs during the George W. Bush presidency found that, all else being equal, the Bush administration was more likely to remove a USA from a state where the president’s choice of replacement would be unconstrained and not trigger the consultations necessitated by senatorial courtesy (Miller & Curry, 2018).3

Important evidence exists to buttress the idea that chief federal prosecutors prioritize the enforcement of certain areas above others, and that they generally do so in ways consistent with traditional partisan expectations (Boldt & Boyd, 2018; Whitford & Yates, 2003). As two examples, in the past three decades Republican-appointed USAs have been significantly more likely to pursue federal narcotics cases than those USAs nominated by Democrats. In contrast, USAs under Democratic administrations have been more likely to charge defendants with white-collar crimes. A number of distinctions between Republican and Democratic USAs also extend to the sentencing stage, with Republican-appointed prosecutors advocating successfully for significantly longer prison sentences than Democrats advocate for in areas that have historically been high priorities for the GOP, such as immigration and narcotics (see Miller & Curry, 2019).

The vast majority of state prosecutors are popularly elected, with most of the contests being partisan (Krumholz, 2019; McCannon, 2013). This electoral connection has acute implications for how prosecutors function—“if elected district attorneys fail to follow public opinion, they risk losing their jobs” (Nelson, 2014, p. 121). Consequently, offices exhibit significant localism (Barkow, 2011; Wright, 2012) as district attorneys attempt to respond to voter priorities (Gordon & Huber, 2009). In formulating those responses, it has traditionally behooved prosecutors to cultivate an image of being “tough on crime” (Gordon & Huber, 2002).

Numerous studies have unearthed evidence in support of the idea that prosecutorial decision-making is conditioned by local electoral factors and differs across individual characteristics, such as partisanship. In their study of district attorneys in North Carolina, Bandyopadhyay and McCannon (2014) found that prosecutors undertook five times as many jury trials during election years than they did at other times and they became less likely to plea bargain with an election at hand. Most of the time, local prosecutors run for office unopposed, but the North Carolina study concluded the propensity toward jury trials is even more pronounced when the incumbent faces a challenger. In addition to the fact that such trials tend to portend harsher sentences than alternatives, such as plea bargaining, they generate valuable publicity and local media attention (see Tonry, 2012). McCannon (2013) extended this logic with an analysis of appellate court data from New York. He found that felony convictions obtained within 6 months of a prosecutor’s re-election are more prone to being reversed than is true of cases brought at other times. This, he suggested, demonstrates that re-election pressures distort prosecutorial decision-making by leading to the prosecution of weak or problematic cases: “The popular election of prosecutors results in inaccurate sentences, wrongful convictions, and consequently, successful appeals” (McCannon, 2013, p. 696).

Krumholz’s (2019) preliminary work on prosecutor characteristics and criminal justice outcomes in the states suggested the partisanship and race of chief prosecutors influence incarceration rates. He found that Republican district attorneys are more punitive—that they are responsible for approximately 20% more prison admissions—than their Democratic counterparts. His work also highlighted the fact that, controlling for partisanship, non-White district attorneys are associated with 10% fewer incarcerations than their White counterparts.

Ambition and Career Prospects

As noted earlier, in modern-day America, the position of prosecutor is routinely viewed as a stepping stone to higher and more prestigious stations. That is certainly true for many judges. For instance, President Barack Obama’s 2016 announcement of Merrick Garland as his nominee for the U.S. Supreme Court noted Garland’s experience as a federal prosecutor—his supervisory role in prosecuting Timothy McVeigh for the bombing of the Murrah Federal Building in Oklahoma City, his experience “going after corrupt politicians and violent criminals,” and his penchant for doing “everything by the book” (Obama, 2016; Sklansky, 2017a, pp. 649–650). That same background had helped facilitate Garland’s bipartisan confirmation to the Court of Appeals for the D.C. Circuit nearly two decades earlier.

Service as a federal prosecutor is a highly attractive attribute for presidential nominees (see Weiser, 2009). For example, as Christopher Kang, a key adviser in the Obama administration on judicial appointments, remarked about Ed Stanton, a USA stationed in Memphis, “He’s a U.S. Attorney, you couldn’t ask for anything better than that in terms of the typical judicial nominee” (quoted in Slotnick, Schiavoni, & Goldman, 2017, p. 384). In the states, judicial candidates have traditionally showcased their prosecutorial bona fides in appeals to the electorate. By 2000, about one third of all judges serving on state courts of last resort had been prosecutors (Bonneau, 2001). This is sensible in light of the public’s historical affinity for “law-and-order” platforms in judicial campaigns, and law and order are a topic on which most former prosecutors are viewed as being inherently credible.

In describing “the rise of the prosecutor politicians,” Shugerman (n.d.) fixed the large-scale phenomenon of prosecutors’ ascending to higher elected positions at the mid-20th century. This is a second, common, and more overtly political, post-career path. Shugerman’s account identified Californian Earl Warren and Thomas Dewey of New York as early manifestations of the trend, which has accelerated and continues apace into the 21st century. According to an analysis of Shugerman’s data, prosecutor politicians comprised 38% of state attorneys general, 19% of governors, and 10% of U.S. Senators who were in office at some point between 2007 and 2017 (Sawyer & Clark, 2017). Former prosecutors tend to make strong candidates for higher office because they have been vetted, enjoy strong name recognition, and are experienced in dealing with both the media and political power brokers. The rise of prosecutor politicians has probably also helped intensify selection effects, with the most ambitious aspiring politicians becoming likelier to choose prosecutorial service as it has become an increasingly orthodox route to higher office (Shugerman, n.d.). As one political consultant put it, “If I were working for either one of the House campaign committees, a list of current and former prosecutors in a district would be the first thing I’d look at when it was time to start recruiting” (Hawkings, 2015).

Notwithstanding their attractiveness as candidates for judgeships or other political positions, the future career advantages of prosecutorial experience also extend to the private sector (see Eisinger, 2017). State-level prosecutors often move to private criminal defense work and typically do so in the same locales where they have been prosecutors. Wright (2012, p. 256) observed that a major appeal of private practice is higher pay, making it common for state prosecutors to pivot to this path “when the financial demands of family life increase.” One recent trend at the federal level has been for former USAs to join or to establish lucrative white-collar defense groups (Eisinger, 2017; Miller & Curry, 2019). Other aspects of prosecutorial experience, including the development of significant trial experience (Glaeser, Kessler, & Piehl, 2000) or a reputation for obtaining long sentences (see Boylan, 2005), could be advantageous in numerous public and private legal or political careers.

The fact that prosecutorial service is a traditional springboard to other positions has important implications for behavior and, thus, outcomes in the justice system. Career-related ambition can lead individuals to use their current position to maximize subsequent opportunities (Bandyopadhyay & McCannon, 2014). In a sense, this makes them agents not just of their current political principals, but of the future principals of relevance to those positions to which they may ultimately aspire (Teodoro, 2011). To put it more explicitly, all else being equal, prosecutors who have an eye toward elected positions are likely to behave in ways that improve their reputations with the electorate. That has historically equated to the embrace of more punitive policies (see Gordon & Huber, 2002; Stuntz, 2011), although recent reconsideration of this received wisdom has seemingly changed the landscape somewhat and increased the viability of more progressive candidates in prosecutorial contests (Sklansky, 2017b).

As already noted, state prosecutors have a propensity to take more cases to trial when an election is on the horizon. Likewise, career concerns can influence a host of other prosecutorial choices, including decisions to seek the death penalty (see Unah, 2009). In the states, prosecutors generally move on to positions in the same geographic area (Carp, Stidham, & Manning, 2007, p. 185). “Career concerns will determine to which ‘public’. . . prosecutors respond. Given that prosecutors are most likely to move out of the prosecutor’s office to another local level position,” Nelson (2014, p. 124) contended that district attorneys should be responsive to local opinion, but not opinions at the state level. He found strong empirical support for that proposition—Colorado prosecutors became more likely to dismiss drug-related charges with increases in local support for a ballot measure legalizing marijuana. This responsiveness may be the product of one’s desire to win re-election or to win higher office in the region, or of a combination of both. Given the absence of elections there, any responsiveness to local constituencies at the federal level is likely to be even more firmly grounded in future career prospects. Here again, scattered findings are suggestive of relationships between local preferences and the work USAs perform. Miller and Curry (2019, pp. 122–123) found that the length of narcotics sentences decreases as the Democratic vote share in a federal district grows, whereas white-collar sentences become longer as the Democratic proportion of the vote increases. These results are consistent with the assumed ideological preferences of liberal constituencies—to punish drug offenders more leniently and white-collar offenders more harshly than conservatives punish them (Baum, 2017; Miller & Curry, 2019, pp. 108–110).

The prominence of the opportunities available to former USAs in particular merits separate consideration of the future career paths available to these prosecutors. The position of USA is a well-known point of departure for many subsequent opportunities in the public and private sectors (Eisenstein, 1978). Among the many well-known individuals who have pursued this path are Samuel Alito, James Comey, Robert Mueller, Rudy Giuliani, Eric Holder, Loretta Lynch, Jeff Sessions, and Senators Richard Blumenthal, Doug Jones, and Sheldon Whitehouse, along with many others. Federal judgeships, appointments to other federal positions in the executive branch, and movement to private practice have accounted for the lion’s share of the moves. In the past three decades, approximately 10% of USAs have become federal judges, 7% sought elective office (e.g., mayor, governor, or U.S. Representative), 7% were appointed to a federal office (e.g., Attorney General or Director of the Bureau of Alcohol, Tobacco, and Firearms), and 56% entered private practice. Work in private practice is increasingly centered on lucrative white-collar defense positions in large firms. A small number of USAs became state judges (3%) or held state-appointed offices (2%; Miller & Curry, 2019, p. 81).

Former USAs who might covet a federal judicial or executive appointment are likely to be more concerned with impressing those who hold the keys to those positions, such as the president and, to some degree, U.S. Senators. There is suggestive evidence that USAs who are most loyal to the policy priorities of their executive principal—the president—enjoy advantages when it comes to being chosen for presidentially appointed positions in the federal government. Consistent with theoretical expectations about the enforcement preferences of Republican and Democratic administrations, a USA’s odds of nomination to the federal bench under a Republican president increase as their office’s focus on prosecuting weapons cases grows—whereas an increasing focus on weapons prosecutions yields a sharp decrease in those odds under Democratic control. Republican presidents also become less likely to select USAs for federal judgeships as they prosecute more white-collar cases (Miller & Curry, 2019, pp. 137–138).

The evidence is even clearer when it comes to promotions to higher positions within the executive branch; common examples include service as U.S. Attorney General, as Deputy Attorney General, or as director of a federal agency like the FBI, ATF, or ICE. Again, consonant with the enforcement priorities that have defined the major political parties in recent decades, USAs whose offices pursue more immigration, narcotics, weapons, and terrorism cases have an elevated likelihood of being promoted to executive positions under Republican presidents. However, the same behavior in these areas decreases one’s chances of promotion under Democrats—sometimes quite dramatically, a pattern that is most apparent in immigration, narcotics, and terrorism cases (Miller & Curry, 2019, pp. 139–140).

In contrast, strategically minded USAs who seek after-office opportunities in the private sector may be motivated by a different calculus, and the pursuit of opportunities in the private sector can also have important implications for the behavior of federal prosecutors while in office (see Eisinger, 2014, 2017; Rakoff, 2014). On the one hand, they “have every incentive to show how tough they are. The bigger the takedown, the plummier the white-collar defense job that awaits.” On the other hand, this impulse is tempered by another factor: “Prosecutors also want their adversaries to imagine them as future partners. They want to be seen as formidable but not unreasonable. They want to demonstrate they are people of proportion” (Eisinger, 2017, pp. 198–199). This calculus is a common explanation for the dearth of executive white-collar prosecutions in the wake of the Great Recession (Eisinger, 2017; Rakoff, 2014).

American Prosecutors in the Future

Prosecutors are undeniably important figures in the criminal justice system and they are clearly influenced by political considerations, at least in some instances. This is understandable given the pressures they face from above and from below. The principal–agent framework is key to understanding the politics of prosecution. However, the fact that prosecutors are both principals (to the deputy prosecutors they supervise) and agents (of voters or of higher-ups in an administration), requires nuanced application of the principal–agent approach. Scholars have documented several ways in which these various influences alter outcomes. Mostly this work has focused on partisanship and demographic characteristics, such as race and gender, as well as characteristics of the district over which prosecutors preside. Newer approaches are beginning to focus on how future career prospects may influence the behavior of prosecutors and how performance as a prosecutor may influence future career prospects. In this vein, an interesting new development is the rise of so-called progressive prosecutors. Promises from this new group include more racial neutrality in the application of the law, being more forthcoming with exculpatory evidence, and undertaking more investigations of police misconduct (Sklansky, 2017b). Because the phenomenon of progressive prosecutors is new, we must await further evidence to determine whether progressive prosecutors are successful in altering criminal justice policies and whether their future career prospects are substantially different from prosecutors whose policy stances are more traditional.

Further Reading

  • Davis, A. J. (2007). Arbitrary justice: The power of the American prosecutor. New York, NY: Oxford University Press.
  • Huber, G. A., & Gordon, S. C. (2004). Accountability and coercion: Is justice blind when it runs for office? American Journal of Political Science, 48, 247–263.
  • Richman, D. C. (2003). Prosecutors and their agents, agents and their prosecutors. Columbia Law Review, 103, 749–832.

References

  • Albonetti, C. (1987). Prosecutorial discretion: The effects of uncertainty. Law & Society Review, 21, 291–314.
  • Apprendi v. New Jersey, 530 U.S. 466 (2000).
  • Bandyopadhyay, S., & McCannon, B. C. (2014). The effect of the election of prosecutors on criminal trials. Public Choice, 161, 141–156.
  • Barkow, R. E. (2011). Federalism and criminal law: What the feds can learn from the states. Michigan Law Review, 109, 519–580.
  • Baum, L. (2017). Ideology in the Supreme Court. Princeton, NJ: Princeton University Press.
  • Bay, N. C. (2006). Prosecutorial discretion in a post-Booker world. McGeorge Law Review, 37, 549–575.
  • Bibas, S. (2002). How Apprendi affects institutional allocations of power. Iowa Law Review, 87, 465–475.
  • Bibas, S. (2009). Prosecutorial regulation versus prosecutorial accountability. University of Pennsylvania Law Review, 157, 959–1016.
  • Bjerk, D. (2005). Making the penalty fit the crime: The role of prosecutorial discretion under mandatory minimum sentencing. Journal of Law and Economics, 48, 591–625.
  • Black, R. C., & Owens, R. J. (2013). A built-in advantage: The Office of the Solicitor General and the U.S. Supreme Court. Political Research Quarterly, 66, 454–466.
  • Boldt, E. D., & Boyd, C. L. (2018). The political responsiveness of violent crime prosecution. Political Research Quarterly, 71, 936–948.
  • Bonneau, C. W. (2001). The composition of state supreme courts, 2000. Judicature, 85, 26–33.
  • Boylan, R. T. (2005). What do prosecutors maximize? Evidence from the careers of U.S. Attorneys. American Law and Economics Review, 7, 379–402.
  • Brehm, J., & Gates, S. (1997). Working, shirking, and sabotage: Bureaucratic response to a democratic public. Ann Arbor: University of Michigan Press.
  • Brown, M. P., & Bunnell, S. E. (2006). Negotiating justice: Prosecutorial perspectives on federal plea bargaining in the District of Columbia. American Criminal Law Review, 43, 1063–1094.
  • Carp, R. A., Stidham, R., & Manning, K. L. (2007). The judicial process in America. Washington, DC: CQ Press.
  • Chesney, R. M. (2007). Federal prosecution of terrorism-related offenses: Conviction and sentencing data in light of the “soft-sentence” and “data-reliability” critiques. Lewis & Clark Law Review, 11, 851–901.
  • Cohen, A. (2019, June 19). Reformist prosecutors face unprecedented resistance from within. Brennan Center for Justice.
  • Davis, K. C. (1969). Discretionary justice: A preliminary inquiry. Baton Rouge, LA: Louisiana State University Press.
  • Davis, A. J. (2005). The power and discretion of the American prosecutor. Droit et cultures— Revue internationale interdisciplinaire, 49, 55–66.
  • Eisenstein, J. (1978). Counsel for the United States: U.S. Attorneys in the political and legal systems. Baltimore, MD: Johns Hopkins University Press.
  • Eisinger, J. (2014, April 30). Why only one top banker went to jail for the financial crisis. New York Times Magazine, p. 30.
  • Eisinger, J. (2017). The chickenshit club: Why the Justice Department fails to prosecute executives. New York, NY: Simon & Schuster.
  • European Commission for Democracy Through Law (Venice Commission). (2017). Compilation of Venice Commission opinions and reports concerning prosecutors. Strasbourg, Austria: Council of Europe.
  • Flaherty, M. P., & Biskupic, J. (1996, October 7). Justice by the numbers. Washington Post, at A1.
  • Frase, R. S. (2006). Blakely in Minnesota, two years out: Guidelines sentencing is alive and well. Ohio State Journal of Criminal Law, 4, 73–94.
  • Gershman, B. L. (1993). A moral standard for the prosecutor’s exercise of the charging discretion. Fordham Urban Law Journal, 20, 513–530.
  • Glaeser, E. L., Kessler, D. P., & Piehl, A. M. (2000). What do prosecutors maximize? An analysis of the federalization of drug crimes. American Law and Economics Review, 2, 259–290.
  • Gordon, S. C., & Huber, G. A. (2002). Citizen oversight and the electoral incentives of criminal prosecutors. American Journal of Political Science, 46, 334–351.
  • Gordon, S. C., & Huber, G. A. (2009). The political economy of prosecution. Annual Review of Law and Social Science, 5, 135–156.
  • Hawkings, D. (2015, June 2). Politicians prosecuting their case to come to Congress. Roll Call.
  • Iannacchione, B., & Ball, J. D. (2008). The effect of Blakely v. Washington on upward departures in a sentencing guidelines state. Journal of Contemporary Criminal Justice, 24, 419–436.
  • Iglesias, D. (2008). In justice: Inside the scandal that rocked the Bush administration. Hoboken, NJ: Wiley.
  • Kessler, D. P., & Piehl, A. M. (1998). The role of discretion in the criminal justice system. Journal of Law, Economics, and Organization, 14, 256–276.
  • Klobuchar, A. (2015). The senator next door: A memoir from the heartland. New York, NY: Henry Holt & Company.
  • Krauss, R. (2009). The theory of prosecutorial discretion in federal law: Origins and developments. Seton Hall Circuit Review, 6, 1–28.
  • Lochner, T. (2002). Strategic behavior and prosecutorial agenda setting in the United States Attorneys’ offices: The role of U.S. Attorneys and their assistants. Justice System Journal, 23, 271–294.
  • Lynch, G. E. (1998). Our administrative system of criminal justice. Fordham Law Review, 66, 2117–2151.
  • Lynch, G. E. (2003). Screening versus plea bargaining: Exactly what are we trading off? Stanford Law Review, 55, 1399–1408.
  • McCannon, B. C. (2013). Prosecutor elections, mistakes, and appeals. Journal of Empirical Legal Studies, 10, 696–714.
  • Miller, B., & Curry, B. (2018). Haphazard, systematic, or both? An empirical investigation of the United States Attorney firings in 2006. Journal of Law & Courts, 6, 379–403.
  • Miller, B., & Curry, B. (2019). U.S. Attorneys, political control, and career ambition. New York, NY: Oxford University Press.
  • Miller, G. J. (2005). The political evolution of principal–agent models. Annual Review of Politics, 8, 203–225.
  • Miller, R. N. (2011). Balancing the duty to prosecute and the obligation to do justice. Litigation Journal, Summer, 2–8.
  • Nelson, M. J. (2014). Responsive justice? Retention elections, prosecutors, and public opinion. Journal of Law & Courts, 2, 117–152.
  • Nelson, M. J., & Ostrander, I. (2016). Keeping appointments: The politics of confirming United States Attorneys. Justice System Journal, 37, 211–231.
  • Obama, B. (2016). Remarks by the President announcing Judge Merrick Garland as his nominee to the Supreme Court. Washington, DC: The White House, Office of the Press Secretary.
  • Office of the Inspector General. (2008). An investigation into the removal of nine U.S. Attorneys in 2006. Washington, DC: U.S. Department of Justice.
  • Owens, R. J., & Wohlfarth, P. C. (2014). State solicitors general, appellate expertise, and state success before the U.S. Supreme Court. Law & Society Review, 48, 657–685.
  • Perry, H. W. (1998). United States Attorneys—Whom shall they serve? Law & Contemporary Problems, 61, 129–148.
  • Perry, S. W. (2006). Prosecutors in state courts, 2005. Washington, DC: National Crime Justice Research Bureau.
  • Rakoff, J. S. (2014, January 9). The financial crisis: Why have no high-level executives been prosecuted? New York Review of Books, 61, 4–7.
  • Richman, D. C. (2009). Political control of federal prosecutions: Looking back and looking forward. Duke Law Journal, 58, 2087–2124.
  • Richman, D. C., & Stuntz, W. J. (2005). Al Capone’s revenge: An essay on the political economy of pretextual prosecution. Columbia Law Review, 105, 583–639.
  • Sawyer, W., & Clark, A. (2017). New data: The rise of the “prosecutor politician.” Prison Policy Initiative.
  • Sklansky, D. A. (2016). The nature and function of prosecutorial power. Journal of Criminal Law & Criminology, 106, 473–520.
  • Sklansky, D. A. (2017a). The changing political landscape for elected prosecutors. Ohio State Journal of Criminal Law, 14, 647–674.
  • Sklansky, D. A. (2017b). The progressive prosecutor’s handbook. UC Davis Law Review, 50, 25–42.
  • Slotnick, E., Schiavoni, S., & Goldman, S. (2017). Obama’s judicial legacy: The final chapter. Journal of Law & Courts, 3, 331–367.
  • Starr, S. B., & Rehavi, M. M. (2013). Mandatory sentencing and racial disparity: Assessing the role of prosecutors and the effects of Booker. Yale Law Journal, 123, 2–80.
  • Stith, K. E. (2008). The arc of the pendulum: Judges, prosecutors, and the exercise of discretion. Yale Law Journal, 117, 1420–1497.
  • Stuntz, W. J. (2011). The collapse of American criminal justice. Cambridge, MA: Harvard University Press.
  • Suthers, J. W. (2008). No higher calling, no greater responsibility: A prosecutor makes his case. Golden, CO: Fulcrum Publishing.
  • Teodoro, M. P. (2011). Bureaucratic ambition: Careers, motives, and the innovative administrator. Baltimore, MD: Johns Hopkins University Press.
  • Tonry, M. (1996). Sentencing matters. New York, NY: Oxford University Press.
  • Tonry, M. (2012). Prosecutors and politics in comparative perspective. Crime & Justice, 41, 1–33.
  • Tonry, M. (2013). Prosecutors and politics: A comparative perspective. Chicago, IL: University of Chicago Press.
  • Unah, I. (2009). Choosing those who will die: The effect of race, gender, and law in prosecutorial decision to seek the death penalty in Durham County, North Carolina. Michigan Journal of Race & Law, 15, 135–179.
  • United States v. Booker, 543 U.S. 220. (2005).
  • Voigt, S., & Wulf, A. J. (2017). What makes prosecutors independent? Analysing the institutional determinants of prosecutorial independence. Journal of Institutional Economics, 15, 99–120.
  • Weiser, B. (2009, January 29). A steppingstone for law’s best and brightest. New York Times.
  • Whitford, A. B. (2002). Bureaucratic discretion, agency structure, and democratic responsiveness: The case of the United States Attorneys. Journal of Public Administration Research and Theory, 12, 3–27.
  • Whitford, A. B., & Yates, J. (2003). Policy signals and executive governance: Presidential rhetoric in the war on drugs. The Journal of Politics, 65, 995–1012.
  • Wright, R. F. (2012). Persistent localism in the prosecutor services of North Carolina. Crime & Justice, 41, 211–264.
  • Wright, R. F. (2017). Reinventing American prosecution systems. Crime & Justice, 46, 395–439.
  • Yang, C. S. (2014). Have inter-judge sentencing disparities increased in an advisory guidelines regime? Evidence from Booker. NYU Law Review, 89, 1268–1342.

Notes

  • 1. Prosecutors tend to have broader decision-making authority in common law systems like the United States than in other European civil law nations where the “legality principle” predominates (Tonry, 2013). Still, it is important to underscore that the strength of such conclusions exhibits meaningful variation even within nations that share legal traditions (see European Commission for Democracy Through Law, 2017; Voight & Wulf, 2017).

  • 2. A prominent example of these types of relationships in the social science literature on attorneys is the relationship of the President to the Solicitor General. A central question in the literature has been an investigation of why the Solicitor General is so much more successful than other lawyers before the Supreme Court. For instance, Black and Owens (2013) showed that lawyers in the Office of the Solicitor General enjoy an “affiliation advantage.” More specifically, Black and Owens showed that these attorneys succeed so frequently because of their association with the institution of the Solicitor General, not necessarily because of any special skills they possess. Indeed, this kind of associational advantage also appears to exist for state-level solicitors general (Owens & Wohlfarth, 2014).

  • 3. One of the nine USAs who were removed later referred to the administration’s handling of the episode as having been carried out with the “reckless disregard of a choreographed train wreck” (Iglesias, 2008, p. 112). Indeed, the episode played a role in an attorney general’s departure, an inspector general’s investigation, and a number of congressional hearings. It also resulted in legislation that would limit the ability of future administrations to bypass Senate confirmation, a loophole the Bush administration exploited to install loyal “interim” USAs whose terms came with no formal expiration date (for a more detailed description of these events, see Iglesias, 2008; Miller & Curry, 2018, pp. 383–385; Office of the Inspector General, 2008).