The black box

Iowa Law Review

Volumn 94, Issue 1, 2008, Pages 125-196

  Miller, Marc L ^a,b   Wright, Ronald F ^c  

^a UNIVERSITY OF ARIZONA   (United States)

^b Department of Law ^*

^c WAKE FOREST UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 59649101856     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (367)

1. Herbert Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1102 (1962) (emphasis added),
2. quoted in FRANK W. MILLER, PROSECUTION: THE DECISION TO CHARGE A SUSPECT WITH A CRIME 151 (1970).
3. Id.;
4. see also KENNETH CULP DAVIS, DISCRETIONARY JUSTICE, at vi (1969) ("Writers about law and government characteristically recognize the role of discretion and explore all around the perimeter of it but seldom try to penetrate it.").
5. SEE, E.G., DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK 16 (2002);
6. SAMUEL WALKER, CASSIA SPOHN & MIRIAM DELONE, THE COLOR OF JUSTICE: RACE, ETHNICITY, AND CRIME IN AMERICA 166 (Sabra Home ed., 3d ed. 2004);
7. Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 CHE-KENT L. REV. 605 passim (1998).
8. See, e.g., Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747, 753-56 (2005);
9. Donald Dripps, Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies, 109 PENN ST. L. REV. 1155, 1156 (2005);
10. William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 523-29 (2001).
11. But see Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 225-33 (2007) (detailing a study of crime legislation in three states indicating that legislatures repeal criminal legislation in some settings). In addition to the increased number of overlapping crimes within jurisdictions, a greater proportion of cases, notably including many drug and gun cases, are covered by overlapping codes of different jurisdictions (especially state and federal criminal codes).
12. Sentencing laws now offer prosecutors finer controls over sentencing outcomes, effectively granting them the power to reverse-engineer the combination of charges and convictions to produce the desired sanctions. See Terence D. Miethe, Charging and Plea Bargaining Practices Under Determinate Sentencing: An Investigation of the Hydraulic Displacement of Discretion, 78 J. CRIM. L. & CRIMINOLOGY 155, 155-59 (1987) (rejecting the "hydraulic effect" caused by sentencing guidelines);
13. Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV. 1211, 1212 (2004) (using "trial distortion" as a way to explain pleanegotiation practices);
14. Ronald F. Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 83 (2005) (critiquing the federal sentencing system).
15. See, e.g., GEORGE FISHER, PLEA BARGAINING'S TRIUMPH: A HISTORY OF PLEA-BARGAINING IN AMERICA 111-36 (2003) (suggesting that judges' exploding civil caseloads, reliance on impartial and reliable probation officers, and maintenance of control over sentencing power has enabled them to accept prosecutors' bargaining methods);
16. William J. Stuntz, Bordenkircher v. Hayes: The Rise of Plea Bargaining and the Decline of the Rule of Law 29-34 (Harvard Law Sch. Pub. Law & Legal Theory Research Paper Series, Working Paper No. 120, 2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=854284 (arguing that prosecutors have too much power in plea bargaining).
17. See infra Part II.A (explaining that bias in the system is a product of more than just prosecution decisions). For an account of the limited and failed efforts by judges to regulate the criminal charges available to prosecutors, see Ronald J. Allen & Ethan A. Hasten, From Winship to Apprendi to Booker: Constitutional Command or Constitutional Blunder?, 58 STAN. L. REV. 195, 195-98 (2005).
18. See, e.g., Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 61-62 (1998) (arguing that the use and publication of racial-impact studies would advance responsible prosecutorial discretion).
19. See Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 723-29 (2005) (explaining legislators' and judges' roles in the trend towards criminalization);
20. Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633, 645-49 (2005) (explaining why American criminal codes need reform and why key players in the criminal justice system oppose such reform).
21. Other scholars - all relatively recent arrivals on the scene - have begun to discuss the prospects for internal regulation of prosecutorial choices, suggesting that this internal approach could become dominant over the next generation. See generally Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CAL. L. REV. 323 (2004) (exploring the possibility of using a cost-benefit analysis in criminal enforcement);
22. Michael M. O'Hear, Plea Bargaining and Procedural Justice, 42 GA. L. REV. 407 (2008) (arguing for procedural reform in plea bargaining).
23. To be precise, it is the Office of the District Attorney for Orleans Parish.
24. See infra Part II.B.2 (discussing the Vera Institute). For an overview of the "Prosecution and Racial Justice Project" of the Vera Institute in New York, see Vera Inst. of Justice, Prosecution and Racial Justice, http://www.vera.org/otherwork/prj.html (last visited Oct. 14, 2008).
25. Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 30-36 (2002)
26. [hereinafter Wright & Miller, Screening/Bargaining Tradeoff] ;
27. see also Ronald Wright & Marc Miller, Honesty and Opacity in Charge Bargains, 55 STAN. L. REV. 1409, 1409-17 (2003) [hereinafter Wright & Miller, Honesty & Opacity] (positing that practices in New Orleans and elsewhere demonstrated, in our view, that prosecutors could restrict plea bargaining without dramatically increasing the trial rate if they applied what we called "hard" screening practices).
28. For constructive engagement from other scholars with our first installment in this project, see Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 955-59 (2006);
29. Brown, supra note 10, at 331;
30. Gerard E. Lynch, Screening Versus Plea Bargaining: Exactly What Are We Trading Off?, 55 STAN. L. REV. 1399, 1399-1408 (2003);
31. Daniel Richman, Institutional Coordination and Sentencing Reform, 84 TEX. L. REV. 2055, 2057-65 (2006);
32. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 813 (2006).
33. See DAVIS, supra note 2, at 188. Davis states: Viewed in broad perspective, the American legal system seems to be shot through with many excessive and uncontrolled discretionary powers but the one that stands out above all others is the power to prosecute or not to prosecute. The affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected against abuse.
34. Id.
35. See generally ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991);
36. ERIC A. POSNER, LAW AND SOCIAL NORMS (2000) (studying the relationship between legal regulation and social norms).
37. The earliest glimmers are visible in the larger literature on administrative discretion. See generally Edward L. Rubin, Discretion and Its Discontents, 72 CHI.-KENT L. REV. 1299 (1997).
38. MAD MAX BEYOND THUNDERDOME (Warner Bros. Pictures 1985).
39. The reality of declination choices involves multiple reasons, and in some cases, pretextual reasons. We explore such possibilities in Part II.
40. There are some serious limitations to the data. Most importandy, the list of reasons does not contain a clear category to reflect that a particular type of offense should be declined simply because such crimes receive a low priority from an office with limited resources. There is no category for "resources" or some similar reason. Cf. Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. CHI. L. REV. 246, 263-64 (1980) (showing that office policy explained roughly one-third of declinations);
41. Michael Edmund O'Neill, Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predictive Factors, 41 AM. CRIM. L. REV. 1439, 1459-60 (2004) (observing that two major reasons for declinations in federal court included policy, at 17%, and resources, at 5%). Neither does the list of reasons include any clear category to capture the impact of defendant characteristics such as age, family hardship, or the like.
42. For the entire period we study here, Harry Connick served as the District Attorney for Orleans Parish. Connick retired in 2002, and Eddie Jordan was elected as his successor. During Jordan's years in office, Hurricane Katrina devastated records, facilities, and everything else about criminal justice in the city. See Christopher Drew, In New Orleans, Rust in the Wheels of Justice, N.Y. TIMES, NOV. 21, 2006, at Al (reporting on the effects of missing evidence after Katrina). After years of community discontent about crime and management of the District Attorney's office, Jordan resigned in October 2007. The interim District Attorney, Keva Landrum-Johnson, was elected judge in 2008; five other candidates ran for District Attorney.
43. See Laura Maggi, Events Raise Stakes in DA Race, TIMES-PICAYUNE (New Orleans, La.), July 12, 2008 (reporting on the changes in the District Attorney's office post-Katrina) ;
44. New Orleans Murder Rate on the Rise Again, MSNBC.COM, Aug. 18, 2005, http://www.msnbc.msn.com/id/8999837 (stating that the post-Katrina murder rate rose again after falling from a mid-1990s peak, contrary to the downward trend in other cities, and discussing a study by the New Orleans Police Foundation which found that 42% of serious crime cases from 2002 to 2004 were declined for prosecution).
45. The reasons grouped into this category include "testimony insufficient to prove crime," "insufficient nexus," "analytical results insufficient," "unlawful search no warrant," "no corroboration of evidence," "good defense," "physical evidence insufficient," "no probable cause for arrest," and "other evidence problems."
46. The reasons included in this category are "victim refuses to prosecute," and "victim no show, unlocatable."
47. The three most important studies here are, in chronological order, VERA INST. OF JUSTICE, FELONY ARRESTS: THEIR PROSECUTION AND DISPOSITION IN NEW YORK CITY'S COURTS (1977);
48. Frase, supra note 18;
49. and O'Neill, supra note 18. O'Neill found that 17% of federal declinations were based on policy reasons, 48% were based on evidentiary reasons, 20% were based on the suspect's status, and 5% were based on resources.
50. Id. at 1459.
51. See, e.g., Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2123 (1998) ("The substantive evaluation of the evidence and assessment of the defendant's responsibility is not made in court at all, but within the executive branch, in the office of the prosecutor.");
52. Stuntz, supra note 4, at 572 ("Whether prosecutors sort well determines whether the system allocates punishment well, or even decently. . . . The prime mechanism by which undeserving defendants are cleared, or let off with only nominal punishment, is the prosecutor's screening process.").
53. See Wright, supra note 5, at 85, 109 (noting that the difference between a potential sentence at trial and a sentence with a guilty plea could push defendants toward the deal even if they have a strong defense).
54. See generally Nancy J. King & Michael E. O'Neill, Appeal Waivers and the Future of Sentencing Policy, 55 DUKE L.J. 209 (2005) (providing an empirical analysis of appeal waivers).
55. After removing those charges declined because the office was pursuing other criminal charges, the adjusted totals for the evidentiary categories look like this: testimony insufficient, 16.9%; insufficient nexus, 10.9%; analytical results insufficient, 3.3%; unlawful search/no warrant, 3.0%; no corroboration, 2.1%; good defense, 1.8%; physical evidence insufficient, 1.4%; no probable cause for arrest, 1.4%; other evidence problems, 1.2%. These categories total 42% of the adjusted pool of declined charges.
56. These "adjusted" totals of charges declined are reasonably consistent with O'Neill's findings for the federal system, where the largest category for declination was evidentiary reasons, accounting for 48% of declinations, See O'Neill, supra note 18, at 1459 (showing reasons for declination by category).
57. Most studies of judicial exclusions estimate that judges exclude evidence in something between 0.3% and 1.3% of felony arrests. See Thomas Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 AM. B. FOUND. RES. J. 611, 659-68 (discussing several studies on the exclusion of evidence for felony arrests);
58. L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 684-91 (1998) (detailing several empirical studies of the exclusionary rule).
59. The figures in the text indicate the number of charges declined and dismissed. The number of defendants whose cases were dismissed after successful motions to suppress evidence was 627. Judges granted a motion to suppress for 7.3% of all such motions resolved.
60. The literature measuring the impact of the exclusionary rule recognized the separate contribution of prosecutors in the early studies, but then dropped the point. In cities other than New Orleans, estimates of the impact of exclusion within the prosecutor's office fluctuate widely. See generally U.S. GEN. ACCOUNTING OFFICE, IMPACT OF THE EXCLUSIONARY RULE ON FEDERAL CRIMINAL PROSECUTIONS (1979) (analyzing thirty-eight U.S. Attorney offices for two months in 1978 and finding that 0.4% of all cases presented were declined because of search-and-seizure problems);
61. NAT'L INST, OF JUSTICE, THE EFFECTS OF THE EXCLUSIONARY RULE: A STUDY IN CALIFORNIA 10-11 (1982) (analyzing felony arrests that were rejected for prosecution in California cities and finding that from 1976 to 1979, statewide search-and-seizure problems accounted for 4.8% of declinations but 8.5% in San Diego).
62. Other exclusionary rule categories included "no probable cause for arrest" at 1.4%, "other due process problems" at 0.72%, and "inadmissible confession by defendant" at 0.04%. Cf. Craig D. Uchida & Timothy S. Bynum, Search Warrants, Motions to Suppress and "Lost Cases": The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. CRIM. L. & CRIMINOLOGY 1034, 1058, 1064 (1991) (analyzing all warrants filed during a six-month period in 1984 and 1985 in seven cities and finding that only 1 of 1748 warrants was rejected by magistrates and that motions to suppress were granted and cases were dismissed in 1.5% of all warrant cases).
63. Although the standard of proof (reasonableness) remains the same for warranted and unwarranted searches, the burden of proof (both the burden of production and the burden of persuasion) is different for warranted and unwarranted searches. The government carries the burden for unwarranted searches, while the defendant carries the burden for warranted searches. See State v. Fauria, 393 So. 2d 688, 689 (La. 1981);
64. WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 11.2(b) (4th ed. 2004).
65. While there are many barriers to determining the total number of searches in a jurisdiction and the proportion of those searches that are based on search warrants, one study estimated that less than one-sixth of searches are warranted. See Ramona Lampley & Cassandra Rich, An Empirical Study of Search and Seizure in a Mid-Sized American Town 5 (Wake Forest Law Review Working Paper, 2003), available at http://lawreview.law.wfu.edu/ documents/working. 2003.lampley.rich.pdf (reporting that 42 of 272 reported searches in a three-month period were based on search warrants).
66. See 6 LAFAVE, supra note 32, § 11.2(b).
67. But see Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (holding that exigent circumstances were not present "when the underlying offense for which there is probable cause to arrest is relatively minor").
68. See Davies, supra note 28, at 622 (summarizing studies showing that exclusion occurred in the range of 3-5% in drug and weapons cases).
69. See generally Perrin et al., supra note 28 (reviewing previous empirical studies of die exclusionary rule).
70. Studies in other jurisdictions have found a similar but less-pronounced difference. See sources cited supra note 35.
71. See generally MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE MATERIALS 886-90 (3d ed. 2007) (reprinting police-department screening policies) ;
72. Corey Fleming Hirokawa, Comment, Making the "Law of the Land" the Law on the Street: How Police Academies Teach Evolving Fourth Amendment Law, 49 EMORY L.J. 295 (2000) (describing the teaching of procedure in police academies).
73. See, e.g., U.S. SENTENCING COMM'N, SENTENCING GUIDELINES MANUAL § 2B1.1 (2008) (showing that the majority of sentences in fraud cases are attributed to the amount of loss) ;
74. see also Jack B. Weinstein & Fred A Bernstein, The Denigration of Mens Rea in Drug Sentencing, 7 FED. SENT'G REP. 121, 121 (1994) ("[I]n in the guidelines era, mens rea has been all but eliminated from the sentencing of drug offenders.").
75. The prosecutor's discretion to subdivide conduct into separate counts and the judge's discretion to consider the extra counts when selecting a sentence present enormous issues that have just begun to attract the attention they deserve. See generally Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power and the Need for a Law of Counts, 109 PENN ST. L. REV. 1107 (2005) (describing the prosecutorial decisions in the Martha Stewart case).
76. Double-jeopardy rules would not prevent this outcome, in light of the dual-sovereign exception. Bartkus v. Illinois, 359 U.S. 121, 134-35 (1959).
77. Stuntz, supra note 4, at 506-07.
78. The lesser charge prosecuted instead of attempted murder was aggravated assault or some other form of assault.
79. The differences between the percentages in the cells in Table 2 are statistically significant. Using the chi-square test of significance, the observed chi-square value is 797.29, while the critical value of chi-square for df = 24 and p = 0.01 is 42.98, so the value of p is below 0.01.
80. The "lesser homicides" in Table 2 are vehicular homicide, negligent homicide, and manslaughter. We combined these columns because the separate crimes produced several expected frequencies lower than five.
81. Prosecutors declined 68% (35,304 out of 52,010) of the police recommendations to charge under Louisiana's "illegal possession" statute, LA. REV. STAT. ANN. § 14:69 (2007). Nearly half of those (45 % ) were declined because the defendant was prosecuted for other charges.
82. Of the 18,376 charges declined under Louisiana's theft statute, LA. REV. STAT. ANN. § 14:67 (2007), 47% were declined because the defendant was prosecuted for other charges. Overall, prosecutors declined 52% of the police recommendations under this code provision.
83. Cf. Frank O. Bowman III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 IOWA L. REV. 1043, 1069 (2001) (explaining that lower drug sentences during the 1990s were likely the result of line prosecutors' disapproval of the most severe available sentences);
84. Kathleen F. Brickey, Charging Practices in Hazardous Waste Crime Prosecutions, 62 OHIO ST. L.J. 1077, 1100-06 (2001) (observing that prosecutors in environmental-crime cases tend to charge cases that emphasize knowledgeable actors, despite the potential reach of statutory language to cover more technical violations);
85. George A. Thomas III, Discretion and Criminal Law: The Good, The Bad, and the Mundane, 109 PENN ST. L. REV. 1043, 1048-49 (2005) (stating that prosecutors who fail to pursue the guilty are "substituting their judgment of what the law prohibits or at least using their own judgment to decide which offenders are worth pursuing").
86. See VERA INST. OF JUSTICE, supra note 22, at 19 (explaining the correlation between felonies and prior relationships).
87. Id. at 28.
88. Id. at 19, 135-37.
89. Compare these results with O'Neill, supra note 18, at 1439, which does not show any category for victim reasons and attributes only 3% of all declinations to "witness problems," which may include victims.
90. Prosecutors might have applied these terms sloppily at times. Note in Table 2 that "victim" refusal to cooperate was an important reason explaining dismissal of second-degree-murder charges.
91. The differences among the percentages in Table 3 are statistically significant, using the chi-square test for significance. The observed chi-square value is 163.73, while the critical value of chi-square for df = 20 and p = 0.01 is 37.57, so the value of p is below 0.01.
92. In re Winship, 397 U.S. 358, 358 (1970).
93. See O'Neill, supra note 18, at 1452 (indicating that in federal courts, prosecutors are less likely to decline matters designated as national priorities).
94. See id. at 1465 (stating that in federal courts, prosecutors are more likely to invoke policy reasons for declination of regulatory public-order offenses and evidentiary reasons for violent property crimes).
95. Our research is enumerated in two articles, cited in supra note 13.
96. See MATTHEW J. HICKMAN & BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, LOCAL POLICE DEPARTMENTS 1999, at 19 (2001), available at http://www.ojp. usdoj.gov/bjs/pub/pdf/1pd99.pdf (explaining that more than 90% of police departments have policies dealing with domestic violence and over 75% have policies encouraging arrests in at least some domestic-violence situations);
97. Robert C. Davis, Barbara E. Smith & Bruce Taylor, Increasing the Proportion of Domestic Violence Arrests That Are Prosecuted: A Natural Experiment in Milwaukee, 2 CRIMINOLOGY & PUB. POL'Y 263, 266-67 (2003) (discussing policy changes in Milwaukee that led prosecutors to screen domestic-violence cases more stringently).
98. The City of New Orleans, however, did pass a domestic-violence ordinance in 1994. Katy Reckdahl, Why Doesn't She Leave? Once Dismissed as "Family Trouble, " Domestic Violence Is Now Recognized as an Epidemic, GAMBIT WKLY. (New Orleans, La.), June 11, 2002, at 19, available at http://www.bestofheworleans.com/dispatch/2002-06-11/cover- story.html. Typically, the City Attorney prosecutes ordinance violations, while the District Attorney prosecutes felonies and a few high-priority misdemeanors.
99. Interview with Camille Buras, First Assistant, Dist. Attorney's Office, New Orleans, La. (Jan. 1995). Camille Buras is now a district-court judge in Orleans Parish.
100. LA. REV. STAT. ANN. § 14:35 (2007).
101. Reckdahl, supra note 59.
102. Id.
103. Id.
104. See id. (noting the impact of the Domestic Violence Task Force).
105. See id. (walking through the procedures of the Domestic Violence Monitoring Court);
106. Katy Reckdahl, Beaten and Blamed: One Local Woman Struggles with Both Abuse and an Arrest Record, GAMBIT WKLY. (New Orleans, La.), June 18, 2002, at 9, available at http://www.bestofneworleans.com/ dispatch/2002-06-18/news-feat.html (documenting one woman's struggle with an abusive husband and an unhelpful police department) ;
107. Katy Reckdahl, Called to the Scene: Police Have Not Always Been Considered Advocates for Battered Women, GAMBIT WKLY. (New Orleans, La.), June 25, 2002, at 9, available at http://www. bestofneworleans.com/dispatch/2002-06-25/news-feat.html (discussing the positive impact of the New Orleans Police Department's pilot project training police to act as advocates for battered women). In this regard, Connick could be faulted for a failure to lead other units of the criminal justice system.
108. See Richman, supra note 13, at 2057-65 (discussing the consequences of a lack of coordination between the District Attorney's office and the police).
109. Smaller increases occurred for the "victim no show" reason, which moved from 11% in 1991 (64 of 566) up to 20% in 1998 (152 of 774).
110. See LA. REV. STAT. ANN. §§ 14:34.2 (2007) (battery of a police officer), 14:108 (2004) (resisting an officer).
111. See MILLER & WRIGHT, supra note 37, at 11-16 (tracking judicial regulation of police efforts to enforce civility in police-citizen interactions).
112. The differences among the percentages in Table 4 are statistically significant, using the chi-square test for significance. The observed chi-square value is 9909, while the critical value of chi-square for df = 20 and p = 0.01 is 37.57, so the value of p is below 0.01.
113. Cf Malcolm M. Feeley, Two Models of the Criminal Justice System: An Organizational Perspective, 7 LAW & SOC'Y REV. 407, 408-09 (1973) (noting that a system of criminal justice is both a set of highly formalized rules and also an organization with no incentives and sanctions to enforce the norms).
114. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION IN THE UNITED STATES, 2005 STATISTICAL TABLES 62 tbl.48 (2006), available at http://www.ojp.usdoj. gov/bjs/pub/pdf/cvus05. pdf;
115. CALLIE RENNISON, VIOLENT VICTIMIZATION AND RACE, 1993-1998, at 10 (2001). This is not true for every crime. For drug offenses in particular, sales and possession cut fairly evenly across racial groups, but the drug crimes that police and attorneys investigate and prosecute are the ones that minority defendants commit.
116. See MICHAEL TONRY, MALIGN NEGLECT 104-15 (1995).
117. See, e.g., Tracey L. Meares, Place and Crime, 73 CHE-KENT L. REV. 669, 672-77 (1998) (discussing the connection between physical location and crime, and arguing that law-enforcement policies need to change to take into account this connection).
118. See BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, UNDERSTANDING COMMUNITY POLICING: A FRAMEWORK FOR ACTION 37 (1994) (noting that performance evaluations can be a valuable tool for facilitating change).
119. See generally PETER VERNIERO, INTERIM REPORT OF THE STATE POLICE REVIEW TEAM REGARDING ALLEGATIONS OF RACIAL PROFILING (1999);
120. Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 MLCH. L. REV. 651 (2002) (providing empirical evidence of racial profiling in Maryland) ;
121. David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265 (1999) (discussing how the law encourages the crime of "driving while black" because of the belief that it catches criminals).
122. See, e.g., ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 5 (2007) (discussing the prosecutor's role in the disparate treatment of defendants) ;
123. Cassia Spohn, John Gruhl & Susan Welch, The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges, 25 CRIMINOLOGY 175, 177 (1987) (noting that prosecutors dismiss up to one-half of their cases in many states).
124. See Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV. 461, 503 (2007) (encouraging judges to assess the necessity of counsel at the outset of cases);
125. Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045, 2077-78 (2006) (discussing the increasing amount of waivers because of application fees).
126. See generally Rodney L. Engen & Sara Steen, The Power to Punish: Discretion and Sentencing Reform in the War on Drugs, 105 AM. J. SOC. 1357 (2000) (examining the amount of discretion possessed by judges as a result of determinate and intermediate sentencing).
127. Overall, the population in New Orleans in 2000 (before Hurricane Katrina changed the demographic mix along with the rest of the landscape) was 67.3% black and 28.1% white. Census Bureau, State & County Quick Facts: New Orleans, La., http://quickfacts.census.gov/qfd/states/22/2255000.html (last visited Sept. 9, 2008).
128. The differences between the percentage of white defendants prosecuted and the percentage of white defendants presented by the police were significant for most of the crimes listed in Table 6, using the z test of significance. The exceptions were drug manufacturing and distribution, resisting an officer, aggravated battery, trespass, flight from an officer, and attempted murder. The z test is not ideal in this setting because it treats the pool of police cases as the population value rather than a sample that is subject to selection bias. Nevertheless, the z test addresses in a rough sense what prosecutors do with the raw materials presented to them. For a similar analysis of the relative contributions of police and prosecutors, see Devon J. Green & Megan S. Shafer, Note, The Faces Within: An Examination of the Disparate Treatment of Minority Youth Throughout the North Carolina Juvenile Justice System, 40 WAKE FOREST L. REV. 727, 733 (2005) (discussing how black juveniles were "referred" into the system by citizens and police officers at a higher rate than white juveniles, but noting that prosecutors did not meaningfully change those demographics when they decided which cases to "petition" into the juvenile-adjudication system).
129. See Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy, 121 HARV. L. REV. 1332, 1355-58 (2008) (describing reasons for primary reliance on the judiciary to enforce norms of fairness in the administrative state).
130. Yick Wo v. Hopkins, 118 U.S. 356 (1886). New scholarship by Professor Gabriel (Jack) Chin suggests that legal scholars have fundamentally misconceived Yick Wo (and legal casebook editors have improperly edited it in constitutional law and criminal procedure) for 120 years, and that its true meaning turns on the Treaty Clause, not concerns for equal protection.
131. See Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 U. ILL. L. REV. (forthcoming), available at www.ssrn.com/abstract=1075563.
132. United States v. Armstrong, 517 U.S. 456 (1996).
133. See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAML. REV. 13, 42-50 (1998) (reviewing the difficulties of successful judicial challenges to exercises of prosecutorial discretion);
134. McAdams, supra note 3, at 605 (explaining that an equal-protection claim is almost impossible to win because prosecutors control almost all of the information).
135. Stephens v. State, 456 S.E.2d 560 (Ga. 1995).
136. Id. at 560.
137. Id.
138. Initially, the Georgia Supreme Court struck down the statute, but it reversed its position weeks later after a rehearing. Trisha Renaud, DA's, Defenders Joined on Drug Bill: Quiet Coalition Devised Repeal of Mandatory-Life Provision, FULTON COUNTY DAILY REP. (Atlanta, Ga.), Mar. 22, 1996, at 1. Interestingly, the Georgia legislature amended this mandatory sentencing provision in response to the Stephens decision.
139. Id. The revised statute expanded the sentencing options available to the judge after a conviction for violation of this statute and broadened its coverage to include second convictions for sale of methamphetamines.
140. Id.;
141. GA. CODE ANN. § 16-13-30(d) (Wesdaw through 2008 Sess.).
142. See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 435 (1992) ("One of the most disturbing developments in criminal justice over the last two decades has been the judiciary's failure to provide clear standards that would place some rational limits on the prosecutor's discretion.").
143. Cf. Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893, 919-36 (2000) (comparing judicial, legislative, and internal executive role in controlling federalization of criminal law).
144. Constitutional litigation requires a showing that a state actor intentionally caused a racial disparity. See Washington v. Davis, 426 U.S. 229, 239 (1976) (explaining that the central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official-conduct discrimination on the basis of race).
145. See Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365, 1437 (1987) (discussing the idea that objectifying presumptions "encourages consistency because the prospect of public explication they raise spurs rational decisionmaking, and because the justifications they require exposes the considerations that affect the challenged action to judicial as well as public scrutiny").
146. See generally NORA DEMLEITNER ET AL., SENTENCING LAW AND POLICY: CASES, STATUTES, AND GUIDELINES (2d ed. 2007) (describing typical guideline categories of crimes and criminal record).
147. See Lynn D. Lu, Prosecutorial Discretion and Racial Disparities in Federal Sentencing: Some Views of Former U.S. Attorneys, 19 FED. SENT'G REP. 192, 200 (2007) ("As an internal office management tool, the U.S. Attorney should collect and analyze quantitative and qualitative data on the race and ethnicity of the defendant and victim at each stage of prosecution.").
148. See Vera Inst, of Justice, supra note 12 (explaining the project). We must disclose that both of us serve on the Advisory Board to the Prosecution and Racial Justice Project. All board members travel to periodic meetings in New York and in the cities with cooperating prosecutors' offices; board members receive a modest honorarium.
149. Prosecutors declined misdemeanors for 30% of the cases recommended against defendants of both races. For felonies, prosecutors declined 34% of cases against white defendants and 33% of cases against non-white defendants. Donald Stemen & Elizabeth Farid, Presentation at Program-Wide Meeting of Prosecution and Racial Justice Project in New York City (Oct. 5, 2007) (on file with the Iowa Law Review) [hereinafter Vera Presentation].
150. See Tony Anderson, Ripple Effect: Milwaukee County District Attorney Restructures Department, WIS. L.J., May 7, 2007, available at http://www.accessmylibrary.com/coms2/summary-0286-32401030- ITM (discussing changes by the new District Attorney);
151. Derrick Nunnally, DA Reflects on Year of Change, Challenge, MILWAUKEE J. SENTINEL, Dec. 26, 2007, at B1, available at http://www.jsonline.com/story/index.aspx?id=700438 (same);
152. Derrick Nunnally, New DA Starts by Remodeling, MILWAUKEE J. SENTINEL, Sept. 5, 2007, at B1, available at http://www.jsonline.com/story/index.aspx?id=657103 (same);
153. Interview with Milwaukee County Dist. Attorney John Chisholm, in New York City, N.Y. (Oct. 5, 2007) (same).
154. The trend line for white defendants moved from about 29% to more than 40%. For non-white defendants, the trend line moved up more modestly, from about 33% to about 37%. Vera Presentation, supra note 96.
155. Id.
156. Id.
157. Id.
158. See Interview with John Chisholm, supra note 97 (discussing this phenomenon);
159. see also Bree Nordenson, Partner Profile: Milwaukee DA Focuses on Reducing Racial Disparities, JUST 'CAUSE (Vera Inst, of Justice, New York, N.Y.), Spring 2008, at 1 (explaining how the District Attorney dealt with racial-disparity problems).
160. See sources cited supra note 102 (detailing the District Attorney's actions).
161. See DAVIS, supra note 76, at 188-93 (discussing racial-impact statements for prosecutorial work, particularly the Vera Project). Political conditions in a given community might give some prosecutors greater incentives than others to open their office practices to data-based scrutiny. In particular, newly elected prosecutors might prove more willing to scrutinize their predecessors' actions or the early tentative results of their own reorganizations. This seems to describe the political landscape in Milwaukee.
162. See DEBORAH RAMIREZ, JACK MCDEVITT & AMY FERRELL, A RESOURCE GUIDE ON RACIAL PROFILING DATA COLLECTION SYSTEMS: PROMISING PRACTICES AND LESSONS LEARNED 43-52 (2000) (making recommendations for traffic-stop data-collection systems); N.C. State Bureau of Investigation, Traffic Stop Statistics, http://trafficstops.ncsbi.gov/ (last visited Oct. 16, 2008) (explaining a North Carolina statute requiring the state to collect and maintain statistics on traffic stops).
163. See generally Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749 (2003) (modeling the prosecutor-agent relationship in the federal system as a game of mutual dependence and monitoring).
164. Does a lead prosecutor have any incentive to pursue any of these leadership strategies? In a jurisdiction where the majority of voters are members of racial minority groups, the answer is clearly yes. The incentives on prosecutors depend critically on the role of elections and information. See Ronald F. Wright & Marc L. Miller, Dead Wrong, 2008 UTAH L. REV. 89, 95-96 (discussing the dynamics of prosecutor elections). Candidates and reporters during election campaigns for district attorneys concentrate too much attention on conviction rates and case backlogs. What if our reporters routinely wrote stories about the racial impact of office structures, and asked for data from the office (or the courts) to explore the questions themselves? What if they asked about efforts by the prosecutor to offer feedback and training to the police, or to lobby for legislation?
165. For an analogous debate about possible internal and external methods to promote consistent and principled decisions, see generally Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007) (stating that more training promotes greater consistency);
166. Margaret H. Taylor, Refugee Roulette in an Administrative Law Context: The Déjà Vu of Decisional Disparities in Agency Adjudication, 60 STAN. L. REV. 475 (2007) (stating that supervisory oversight can promote consistency and accuracy within agencies).
167. See Webster v. Doe, 486 U.S. 592, 592 (1988) (holding that a court has no meaningful standard to apply when a statute is drawn in broad terms).
168. See Wechsler, supra note 1, at 1102 ("[I]t is quite clear that [the] existence [of discretion] cannot be accepted as a substitute for a sufficient law");
169. see also Sanford H. Kadish, Legal Norm and Discretion in the Police and Sentencing Processes, 75 HARV. L. REV. 904, 931 (1962) (noting that oversight for discretion of police and prosecutors is necessary because administration of criminal law "is not sui generis, but another administrative agency which requires its own administrative law").
170. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
171. See James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1545 (1981). Vorenberg states: Self-imposed limits on discretion . . . are likely to be no stronger than the determination of the men and women who abide by them to limit their own discretion. Human nature being what it is, people rarely give up power voluntarily, and thus the capacity of self-regulation to remove prosecutorial abuse and arbitrariness from the criminal justice system is limited.
172. Id.
173. Our account of the subjective or internal experience of discretion draws on various "internal" accounts of obedience to law in jurisprudence. Cf. H.L.A. HART, THE CONCEPT OF LAW 90-91 (2d ed. 1994) (differentiating the internal from the external point of view);
174. TOM R. TYLER, WHY PEOPLE OBEY THE LAW 3-7, 24-26 (1990) (discussing internal reasons for why people obey the law). We apply these general internal accounts of law in the specialized setting of behavior by government officials rather than the public, and we use the concepts to explain the use of discretion (choices that officials make in zones not strictly governed by positive law) rather than compliance with law.
175. See, e.g., Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539, 1544-45 (1988) (discussing public-regarding reasons behind legislation).
176. See M.P. Baumgartner, The Myth of Discretion, in THE USES OF DISCRETION 129, 130 (Keith Hawkins ed., 1992) (discussing the effects that the exercise of discretion has on the legal system and society) ;
177. Richard Lempert, Discretion in a Behavioral Perspective: The Case of a Public Housing Eviction Board, in THE USES OF DISCRETION, supra, at 185, 186-87 ("If law is no guide, other social forces may be, and they may give rise to patterns of behavior that look, and in a sociological sense are, more rule-bound than behavior that is in theory rigorously structured by law. ");
178. David Milion, Objectivity and Democracy, 67 N.Y.U. L. REV. 1, 6, 11-12 (1992) (discussing conventionalist legal theory and claiming that practices and understandings "shared within the legal profession limit the law's interpretive potential by providing sufficiently clear and stable criteria to facilitate objective analysis of legal problems");
179. Rubin, supra note 16, at 1299-1300 (discussing the dominating impact of self-perceived norms about discretion in the German banking system).
180. Jay McCloskey, Panel Remarks, Sentencing Guidelines: Where We Are and How We Got Here, 44 ST. LOUIS U. L.J. 385, 391 (2000).
181. The Stanford Criminal Justice Center organized the conference. Stanford Law School, Back-End Sentencing: Strategic Responses to Technical Violations of Parole and New Crime Among Parolees, http://www.law.stanford.edu/calendar/ details/54/Back- EndSentencingAStrategicResponsestoTechnica lViolationsofParoleandNewCrimeAmongParolees/ (last visited Oct. 16, 2008) (follow "Related Information and Recordings" link for conference recordings). One of the authors, Marc Miller, attended the conference and personally observed and participated in the proceedings.
182. This subjective experience of discretion is not limited to executive-branch actors. Another recent discussion at the Stanford Criminal Justice Center focused on the possible role of judicial discretion in a future California sentencing reform. See Stanford Law School, A New Proposal for Sentencing Reform in California, http://www.law.stanford.edu/calendar/details/ 77/ANewProposalforSentencingReforminCalifornia/ (last visited Oct. 16, 2008) (giving an overview of a recent conference that focused on the possible role of judicial discretion in future California sentencing reform). One of the authors, Marc Miller, attended this conference as well and had the following observations. Several California trial and appellate judges were present, along with judges who had been active in sentencing reform in other leading state systems. One early presenter claimed that more discretion existed in the current California sentencing system than might at first appear. A sophisticated superior court judge from Southern California, a person with decades of experience in local and state criminal justice administration, responded that he had very little discretion. He then proceeded to explain that his discretion was sharply limited by mandatory sentences, by legal norms, and by political constraints since California judges are subject to electoral review. He then acknowledged that there were some questions, such as whether sentences for multiple offenses would be served consecutively or concurrently, that were left to his discretion. On further discussion from other judges, he and others acknowledged varying degrees of involvement in plea negotiations. Other California judges pointed out their very broad discretion with regard to misdemeanants, to the process of parole administration and parole revocation hearings, and to the terms and conditions of probation sentences. By the time the discussion had ended, it was clear that California trial judges had very substantial sentencing discretion, even on the face of the formal law. But it was also true that the judges' self-perception allowed for very little discretion at all. The initial response of the judges in that meeting suggested how deep-seated the belief is that individual judgments are informed, rational, and consistent, and as a corollary, that the judge hardly exercised discretion at all.
183. For a similar observation about prosecutorial self-image, see David A. Sklansky, Starr, Singleton, and the Prosecutor's Role, 26 FORDHAM URB. L.J. 509, 532 (1999). Sklansky states: [D]iscretionary decisions can nonetheless be reasoned .... Prosecutors understand it, too. They do not and could not decide whom to charge, for example, in the same way they choose what to order for dinner. They think about it, they argue about it, and sometimes - although not often enough - they write policies about it.
184. Id.
185. See Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 840 ("[Prosecutors have not] undertaken the task of identifying workable norms for the array of discretionary decisions that their offices make each day.").
186. See generally Ronald H. Coase, The Problem of Social Cost, 3 J. LAW & ECON. 1 (1960) (setting out Coase's theorem in detail).
187. Id.
188. See ELLICKSON, supra note 15, at 44-48 (discussing the legal significance of the distinction between open-range and closed-range rules in Shasta County trespass disputes).
189. Id. at vii.
190. See generally, e.g., ROBERT E. PARK & ERNEST W. BURGESS, INTRODUCTION TO THE SCIENCE OF SOCIOLOGY (1924);
191. Tracy L. Meares & Dan M. Kahan, Law and (Norms of) Order in the Inner City, 32 LAW & SOC'Y REV. 805 (1998) (identifying assumptions and strands of modern social-norms scholarship related to crime and cities).
192. See generally Sheila Vera Flynn, A Complex Portrayal of Social Norms and the Expressive Function of Law, 36 UWIA L. REV. 145 (2005) (discussing the intersection of law and social norms) ;
193. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338 (1997) (surveying the impact of Ellickson's work);
194. Lior Jacob Strahilevitz, Social Norms from Close-Knit Groups to Loose-Knit Groups, 70 U. CHI. L. REV. 359 (2003) (illustrating how Ellickson's theory relates to "off the ranch" groups).
195. See Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 MICH. L. REV. 1724, 1724-25 (2001);
196. Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115, 115-17 (1992).
197. For a theoretical examination of this interaction, see generally Yoshinobu Zasu, Sanctions by Social Norms and the Law: Substitutes or Complements?, 36 J. LEGAL STUD. 379 (2007).
198. For an example of such a study in an environmental context, see Michael P. Vandenbergh, Beyond Elegance: A Testable Typology of Social Norms in Corporate Environmental Compliance, 22 STAN. ENVTL. L.J. 55, 62-63 (2003). A wonderful article by Lior Strahilevitz explores the creation of norms and norm violation with regard to carpool and environmentally- friendly-vehicle lanes in California.
199. See Lior Jacob Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes, 75 IND. L.J. 1231, 1274 (2000) (discussing motorists who move aside in favor of faster vehicles).
200. See Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021, 2033-36 (1996) (noting that legal rules can affect social norms regarding cigarette smoking).
201. For example, Eric Posner depicts legal rules as a reference point for parties as they create reputations. Individuals signal their willingness to comply with inconvenient legal rules to show their more general interest in cooperation. See generally POSNER, supra note 15.
202. See Richard A. Posner, Social Norms and the Law: An Economic Approach, 87 AM. ECON. REV. 365, 368 (May 1997) ("[L]aw both complements and substitutes for norms").
203. Richard McAdams summarizes the relationship tins way: "Norms matter to legal analysis because (1) sometimes norms control individual behavior to the exclusion of law, (2) sometimes norms and law together influence behavior, and (3) sometimes norms and law influence each other." McAdams, supra note 126, at 347.
204. For one discussion that takes the first few steps down this road, see Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. REV. 117, 161-63 (2006). Criddle notes that a "fiduciary model" of administrative law "considers legal restraints to be just one strand in the intricate web of institutional relations, bureaucratic constraints, and social norms that influence agency behavior.
205. " Id. at 161. Criddle discusses several sources of these extralegal constraints, but does not pursue the topic of how they might operate differendy within governmental and non-governmental organizations.
206. Id. at 161-62.
207. See also Robert D. Cooter, Three Effects of Social Norms on Law: Expression, Deterrence, and Internalization, 79 OR. L. REV. 1, 2 (2000) ("State organizations suffer from agency problems that preclude effective motivation of people by formal means alone. Perhaps effective formal institutions depend on flourishing informal institutions.").
208. We suspect that there are similar insights into the role of social norms within judicial and legislative bodies. While the focus of this Article is on executive-branch agencies, and indeed specifically one kind of executive-branch agency, the larger idea is that government institutions also operate, to varying but often very substantial ideas, more on the basis of norms than more obvious "legal" or at least "positive" (i.e., affirmative, explicit) legal authority. See Lawrence M. Friedman, Judging the Judges: Some Remarks on the Way Judges Think and the Way Judges Act, in NORMS AND THE LAW 139, 151 (John N. Drobak ed., 2006) (noting that the most influential factors injudicial decisionmaking are societal norms and values).
209. See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY (1962) (exploring the public-choice theory in the context of political decisionmaking). How could it be that twenty-five years after Ellickson started his work - and generations after sociologists started mapping the group cultures within bureaucracies - legal scholars and scholars in other disciplines have not pursued the distinctiveness of the law-norms interaction in the public bureaucracy setting? Our hypothesis turns on intellectual path dependence. Norms within agencies do not appear to "settle a dispute." The birth of modern legal-social-norms scholarship among ranchers and cattlemen - and in opposition to formal legal rules and processes - has perhaps (and ironically) made it hard to see that the insights about the importance of social norms in understanding the power and limits of the law extend to legal institutions as well.
210. The impact of bureaucratic forms of organizations on society was a central concern of Max Weber, Emile Durkheim, and other giants of the field. See Max Weber, Bureaucracy, in THE SOCIOLOGY OF ORGANIZATIONS: BASIC STUDIES 7, 7-36 (Oscar Grusky & George A. Miller eds., 2ded. 1981).
211. See generally, e.g., MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES (1980) (exploring the effect of public policies on the individuals in street-level bureaucracies, schools, police, welfare departments, lower courts, and other similar organizations);
212. PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS (1983) (arguing that the remedies that the public tort system offers should be reformed to account for organizational dynamics).
213. See generally JAMES EISENSTEIN & HERBERT JACOB, FELONY JUSTICE: AN ORGANIZATIONAL ANALYSIS OF CRIMINAL COURTS (1977) (discussing the interaction between work groups in the courtroom);
214. JAMES EISENSTEIN ET AL., THE CONTOURS OF JUSTICE: COMMUNITIES AND THEIR COURTS (1988) (presenting an approach to understanding how criminal courts function);
215. MILTON HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS (1978) (discussing the adjustments of new prosecutors, defense attorneys, and judges in the plea-bargaining process).
216. See McAdams, supra note 126, at 355-58 (discussing the preference that most people have for esteem);
217. Richard H. McAdams, Conventions and Norms: Philosophical Aspects, in 4 INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES 2735, 2740-41 (Neil J. Smelser & Paul B. Baltes eds., 2001) (suggesting that behavioral patterns are shaped by a desire for approval from others).
218. See Posner, supra note 132, at 366 (discussing the development of norms through a desire for approval).
219. See generally Kay L. Levine, The New Prosecution, 40 WAKE FOREST L. REV. 1125 (2005) (tracing the impact of community prosecution objectives on the self-image of prosecutors).
220. See Criddle, supra note 133, at 161 ("Congress shapes the social norms surrounding agency identity not only through legislation, but also through formal and informal debate over pending legislation, formal congressional oversight of the administrative process, informal dialogue with agency administrators, and committee hearings on regulatory issues.").
221. See Daniel C. Richman, "Project Exile" and the Allocation of Federal Law Enforcement Authority, 43 ARIZ. L. REV. 369, 390 (2001) (noting one such appropriation where federal funds went towards the intensification of records checks on guns).
222. See Engen & Steen, supra note 78, at 1357 (observing that sentencing guidelines restrict judicial discretion).
223. Observations about social norms almost certainly apply to courts. Consider the well-developed scholarship on influence of political appointment, judicial elections, and voter initiatives. See Kathryn Abrams, Black Judges and Ascriptive Group Identification, in NORMS AND THE LAW 208, 223-27 (John N. Drobak ed., 2006) (noting that judges identify with those who share their group membership).
224. See sources cited supra note 138 (discussing the interactions between different members of the courtroom working group);
225. Michael M. O'Hear, Plea Bargaining and Victims: From Consultation to Guidelines, 91 MARQ. L. REV. 323, 323-26 (2007) (discussing how victims have an increasingly active role in influencing prosecutors).
226. See Levine, supra note 141, at 1132-44 (discussing California Governor Pete Wilson's implementation of a broad social program for prosecutors that was intended to reduce statutory rape).
227. See STEPHEN W. PERRY, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PROSECUTORS IN STATE COURTS, 2005, at 1 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/psc05.pdf (stating that there are 2344 distinct prosecutorial offices in the state court systems in the United States).
228. For an overview of the implications of this decentralization, see Ronald F. Wright & Marc L. Miller, Country Report: United States of America, in MAX PLANK INST., PROSECUTORIAL SERVICE FOR THE EUROPEAN UNION (forthcoming 2008).
229. The power of such office policies to produce identifiable results without any changes in the underlying legal authority of the prosecutor was the subject of the first phase of our study of New Orleans. See generally Wright & Miller, Screening/Bargaining Tradeoff, supra note 13;
230. Wright & Miller, Honest Uf Opacity, supra note 13.
231. See Alex Geisinger, A Group Identity Theory of Social Norms and Its Implications, 78 TUL. L. REV. 605, 638 (2004) (stating that norm enforcement results from an individual's identification with group).
232. See Leonard R. Mellon, Joan E. Jacoby Sc Marion A. Brewer, The Prosecutor Constrained by His Environment: A New Look at Discretionary fustice in the United States, 72 J. CRIM. L. & CRIMINOLOGY 52 (1981) ("The differences in prosecution policy are often mandated by environmental factors over which the individual prosecutor has no control.").
233. See Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 909 (1996) (discussing the role of norm entrepreneurs).
234. The organizational control of norms distinguishes this account of the prosecutor's work from the "working group" theory prominent in criminology accounts. The working group theory emphasizes the relationship between an individual prosecutor and the defense attorneys, judges, and other courtroom personnel who process large numbers of cases daily. See sources cited supra note 138 (discussing working groups).
235. See David Robinson, Jr., The Decline and Collapse of Federal Guideline Sentencing, 74 WASH. U. L.Q 881, 888 (1996). The Department of Justice employs over 5000 Assistant U.S. Attorneys, not counting all the attorneys employed in the Criminal Division and other units based in Washington,
236. D.C Wright, supra note 5, at 120 n.116. The large number of attorneys within the Department of Justice reinforces a long tradition of office independence for the U.S. Attorneys.
237. See Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 STAN. L. REV. 1211, 1227-35 (2004) (describing the variation in practices among U.S. Attorneys' offices).
238. See generally, e.g., JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983). Detailed accounts of the internal workings of executive and administrative agencies are rare. Sometimes, though, specific policy initiatives lead to public debate and then to scholarly critiques. For example, the debate over immigration prosecution and "fast-track" policies in federal border districts has been visible in public debates, federal policy, and scholarly commentary for a decade.
239. See generally Alan D. Bersin & Judith S. Feigin, The Rule of Law at the Margin: Reinventing Prosecution Policy in the Southern District of California, 12 GEO. IMMIGR. L.J. 285 (1998);
240. Alan D. Bersin, Reinventing Immigration Law Enforcement in the Southern District of California, 8 FED. SENT'G REP. 254 (1996);
241. William Braniff, Local Discretion, Prosecutorial Choices and the Sentencing Guidelines, 5 FED. SENT'G REP. 309, 312 (1993);
242. William Braniff, Intra- and Extra-Guideline Prosecutorial Discretion, 7 FED. SENT'G REP. 133 (1994);
243. Robert H. Edmunds, Guideline Sentencing and Department of Justice Policies Under the Reagan-Bush Administrations, 6 FED. SENT'G REP. 306 (1994);
244. Mary De Ming Fan, Disciplining Criminal Justice: The Peril Amid the Promise of Numbers, 26 YALE L. & POL'Y REV. 1 (2007). On occasion, an actor within an agency chronicles the behavior and decisions within the agency. For a famous, though dated, example,
245. see HERBERT KAUFMAN, THE FOREST RANGER: A STUDY IN ADMINISTRATIVE BEHAVIOR (1960).
246. See Tanina Rostain, Ethics Lost: Limitations of Current Approaches to Lawyer Regulation, 71 S. CAL. L. REV. 1273, 1320 (1998) ("Regulators care about appearing fair and public-minded, even if their self-interest, more narrowly defined, pulls in a contrary direction. Social norms account for the fact that governmental agencies, despite the dire predictions of public choice theory, often resist capture."). The point may turn out to be that executive agencies with similar professional training and cultures will both incorporate norms from their fields or training and be susceptible to the norm creation and control in ways specific to the profession or training.
247. For a thoughtful essay on the shifting content of this group identity, see Edward Rubin, What's Wrong with Langdell's Method, and What to Do About It, 60 VAND. L. REV. 609, 619-21 (2007).
248. A similar but lesser trend appears in popular discourse, as demonstrated by the appearance of the term transparency in The New York Times. No similar pattern appears in federal or state cases over the same period. For a discussion of the adjustments that one would ideally make to account for growth in the Westlaw news and scholarship databases over time,
249. see generally Ronald F. Wright, The Abruptness of Acton, 36 CRIM. L. BULL. 401 (2000).
250. See generally Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885 (2006) (critiquing the incomplete conceptual framework offered by advocates of open-government laws);
251. Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. 909 (2006) (presenting a method for evaluating judicial platforms in the information-access context and beyond); Judith Resnik, In and Out of Sight, Site, and Cite (Feb. 2, 2008) (unpublished manuscript, on file with the Iowa Law Review). Discussions of the costs and benefits of transparency in government decisionmaking have illuminated some more concrete issues.
252. See, e.g., Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 BUFF. L. REV. 757, 778-79 (2004) (discussing literature on sealed judgments).
253. See generally FRANZ KAFKA, THE TRIAL (Breon Mitchell trans., Schocken Books 1998) (1937) (depicting the shortcomings of courts and the law through the experiences of the book's main character).
254. See also People v. Hobbs, 873 P.2d 1246, 1263 (Cal. 1994) (Mosk, J., dissenting) (invoking Kafka to criticize a rule allowing courts to withhold all information supporting a search warrant as part of an informer's privilege).
255. See Bibas, supra note 13, at 912 (arguing that judges, prosecutors, and police as insiders are "professional repeat players who dominate criminal justice" and "control the levers of power").
256. Documents and text are not inherently as transparent as the proponents of "government in the sunshine" laws such as the Freedom of Information Act ("FOIA") once hoped. See generally Fenster, supra note 159;
257. Marc L. Miller & Gregory Aplet, Applying Legal Sunshine to the Hidden Regulation of Biological Control, 35 BIOLOGICAL CONTROL 358 (2005) (noting huge delays in response to Freedom of Information Act requests, limiting the use of FOIA as a tool in active administrative policy-making);
258. Bradley Pack, Note, FOIA Frustration: Access to Government Records Under the Bush Administration, 46 ARIZ. L. REV. 815 (2004) (arguing that the Bush administration has improperly invoked the national-security, law-enforcement, and critical-infrastructure exceptions to FOIA to deny valid requests);
259. Laura Schenck, Note, Freedom of Information Statutes: The Unfulfilled Legacy, 48 FED. COMM. L.J. 371 (1996) (criticizing the exclusion of the legislative branch from federal and state freedom-of- information statutes).
260. See, e.g., Barkow, supra note 81, at 1336-39;
261. Cynthia R. Farina, On Misusing "Revolution" and "Reform": Procedural Due Process and the New Welfare Act, 50 ADMIN. L. REV. 591, 601-18 (1998) (discussing the history of welfare benefits and how they came to be an entidement through due process);
262. David Super, Are Rights Efficient? Challenging the Managerial Critique of Individual Rights, 93 CAL. L. REV. 1051, 1053-61 (2005) (discussing individual rights and entitlements in our legal system).
263. See Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 95 CAL. L. REV. 63, 64 (2008) (describing insights to be drawn from studies of large groups of judicial opinions) ;
264. see also Katherine Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction Absent Racial Profiling, 54 DUKE L.J. 1089, 1119-40 (2005) (investigating the costs and benefits of racial profiling in the context of drug interdiction);
265. Gross & Barnes, supra note 75, at 662-70. One interesting resource that is less well known than it should be is a joint project of scholars and former journalist David Burnham called TRAC (and its federal government focused arm, TRACFED).
266. See generally David Burnham & Susan Long, Tracking Judges, 16 FED. SENT'G. REP. 26 (2003) (explaining TRAC and its purposes). TRACFED collects data from government databases, often through the painful process of FOIA requests, and then makes its data available to journalists and researchers with a powerful analytic interface.
267. See Transactional Records Access Clearinghouse (TRAC), http://trac.syr.edu (last visited Oct. 16, 2008) ('Your source for comprehensive, independent, and nonpartisan information about federal enforcement, staffing, and spending.");
268. TRACFED, http://tracfed.syr.edu (last visited Oct. 16, 2008) ("A unique web-based service for understandable, authoritative, and complete information about the federal government - how it enforces the law, where it assigns its employees, and how it spends out money.").
269. TRAC also issues occasional reports on critical policy issues.
270. See, e.g., TRAC Immigration, Immigration Enforcement: The Rhetoric, The Reality http://trac.syr.edu/immigration/reports/178/ (last visited Oct. 16, 2008).
271. But see generally Kevin Blackwell, The Problem with TRAC, 16 FED. SENT'G REP. 31 (2003) (praising TRACs motive but questioning the quality of TRAC sentencing data).
272. Although the objective of such efforts to explain government action on an individual case level and through patterns of decisions is to promote greater legitimacy in government, the end point of these concerns about the modern administrative state is an even deeper jurisprudential malaise - a deficit in the democratic grounding and accountability of the work of modern governments. See generally Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461 (2003) (arguing that the effort to square the administrative with the constitutional structure has overlooked the concern for administrative arbitrariness);
273. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005) (analyzing the concept of constitutional legitimacy);
274. David Markell, "Slack" in the Administrative State and Its Implications for Governance: The Issue of Accountability, 84 OR. L. REV. 1 (2005) (noting that the administrative state may be moving in the direction of less openness, transparency, and accountability, rather than more);
275. Richard B. Stewart, Madison's Nightmare, 57 U. CHI. L. REV. 335, 342 (1990) (arguing that the rise of the administrative state has led to a fractionalized bureaucracy that is counter to the principles that this country was founded on). That skepticism extends across the branches of government, with somewhat different concerns for each branch.
276. See generally Judith Resnik & Lane Dilg, Responding to a Democratic Deficit: Limiting the Powers and Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575 (2006) (questioning the wisdom and constitutionality of the packet of powers now held by the Chief Justice of die Supreme Court).
277. See Stuart Minor Benjamin, Evaluating E-Rulemaking: Public Participation and Political Institutions, 55 DUKE L.J. 893, 936-37 (2006) (discussing how e-rulemaking makes agencies more transparent);
278. Kristin Madison, Regulating Health Care Quality in an Information Age, 40 U.C. DAVIS L. REV. 1577, 1579 (2007) (arguing that the Internet allows health-care providers to gather and disseminate information rapidly). There is a modest but emerging scholarly debate over whether the impact of technology on lowering information costs makes government more or less transparent.
279. See Anne Balsamo, Myths of Information: The Cultural Impact of New Information Technologies, in THE INFORMATION REVOLUTION 225, 227-30 (Alan L. Porter & William H. Read eds., Ablex Publ'g Corp. 1998) (arguing that mass information does not encourage understanding if people do not reflect on the information);
280. Jerry Brito, Hack, Mash, & Peer: Crowdsourcing Government Transparency, 9 COLUM. SCI. & TECH. L. REV. 119, 120 (2008) (observing that the information the government makes available is not easily accessed or searched).
281. See Paul W. Kahn, Freedom, Autonomy, and the Cultural Study of Law, 13 YALE J.L. & HUMAN. 141, 144-45 (2001) (discussing "knowledge-based" legal reforms);
282. William H. Pryor, Jr., Lessons of a Sentencing Reformer from the Deep South, 105 COLUM. L. REV. 943, 955-56 (2005) (discussing "data-driven" sentencing reform).
283. See generally Steven L. Chanenson, Sentencing and Data: The Not-So-Odd Couple, 16 FED. SENT'G REP. 1 (2003) (arguing that data-backed sentencing guidelines reach positive results);
284. Marc L. Miller, A Map of Sentencing and a Compass for Judges: Sentencing Information Systems, Transparency, and the Next Generation of Reform, 105 COLUM. L. REV. 1351 (2005) (noting that sentencing information systems will improve access to sentencing information);
285. Marc L. Miller & Ronald F. Wright, "The Wisdom We Have Lost": Sentencing Information and Its Uses, 58 STAN. L. REV. 361 (2005) (suggesting that Congress can improve sentencing by providing better information to more users);
286. Marc L. Miller & Steven L. Chanenson, Transparency in Sentencing Policy and Practice (Apr. 15, 2008) (unpublished manuscript, on file with the Iowa Law Review).
287. See generally Marsha Garrison, Reforming Child Protection: A Public Health Perspective, 12 VA. J. SOC. POL'Y & L. 590 (2005) (calling for evidence-based reforms).
288. Cf. Mark Geistfeld, The Political Economy of Neocontractual Proposals for Products Liability Reform, 72 TEX. L. REV. 803, 819-33 (1994) (calling for information-based reforms).
289. See PETER VERNIERO, INTERIM REPORT OF THE STATE POLICE REVIEW TEAM REGARDING ALLEGATIONS OF RACIAL PROFILING (1999),
290. reprinted in MILLER & WRIGHT, supra note 37, at 87 (presenting data on traffic stops in New Jersey).
291. See generally Barnes, supra note 164 (arguing that the race of the motorist is relevant to whether the police will search the motorist's car). Even basic data on police practices can be powerful, both analytically and politically. The effort by the U.S. Department of Justice to suppress a report from the Bureau of Justice Statistics on racial bias in police stops, and ultimately the demotion of the head of the Bureau and the publication of the report, received wide coverage in the media.
292. See, e.g., MATTHEW R. DUROSE, ERICA L. SCHMITT & PATRICK A. LANGAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC: FINDINGS FROM THE 2002 NATIONAL SURVEY (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cpp02.pdf (the controversial report);
293. Eric Lichtblau, Profiling Report Leads to a Clash and a Demotion, N.Y. TIMES, Aug. 24, 2005, at A1 (discussing the contention surrounding the report).
294. See generally David A. Harris, The Reality of Racial Disparity in Criminal Justice: The Significance of Data Collection, 66 LAW & CONTEMP. PROBS. 71 (2003) (analyzing data collected in police stops);
295. Jay Rothman, Identity and Conflict: Collaboratively Addressing Police-Community Conflict in Cincinnati, Ohio, 22 OHIO ST. J. ON DISP. RESOL. 105, 125 n.28 (2006) (reporting on a court order to collect race data in Cincinnati after collaborative agreement between various parties failed);
296. Kami C. Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. CRIM. L. & CRIMINOLOGY 489 (2008) (arguing that the U.S. Department of Justice should adopt regulatory negotiation to ensure more participation among stakeholders).
297. See generally Miller & Chanenson, supra note 168 (detailing internal transparency efforts).
298. The information that is relevant to various policy questions is not self-defining, and what an agency collects and what an outsider wants may not match. Moreover there are huge issues of data collection, data quality, and cost. In the acronym made famous among computer programmers, this is the problem of GIGO - garbage in, garbage out.
299. See Miller & Wright, supra note 168, passim (arguing for more information to be available in sentencing);
300. Miller, supra note 168, at 1351-59 (same).
301. NEIL J. SALKIND, STATISTICS FOR PEOPLE WHO (THINK THEY) HATE STATISTICS (3d ed. 2007).
302. LARRY GONICK & WOOLLCOTT SMITH, THE CARTOON GUIDE TO STATISTICS (1993). We also do not assume that a data-rich government is merely a predicate condition for democracy, and schools must then create the correlative knowledge in society.
303. See Bibas, supra note 13, at 912-18 (describing roles for subgroups of the public in promoting transparency in criminal justice).
304. One dimension of the push towards greater collection and release of data about government behavior is the much lower cost of distributing and accessing information over the Internet. See Markell, supra note 165, at 8 (discussing the impact of the Toxic Release Inventory program). Technology not only lowers the cost of collecting and distributing information, it may also lower the cost of analyzing it.
305. Decisions are more transparent when they arrive with detailed reasoning and when they are sufficient to allow review and criticism of both individual decisions and patterns of decisions. We do not believe that the epitome of transparency is captured in judicial reasoning in individual cases, even when that reasoning is subject to formal challenge and review in appellate courts. The qualities that make different government decisions more or less transparent depend on the nature of the decision. A partial list of relevant factors includes whether a decision is a one-off, rare, or common decision; whether the decision is the product of extended assessment and complex procedures or is made without time and procedural guidance; and whether the impact of the decision extends over time and space, affecting few or many people or other institutions. We believe that despite its emerging popularity, the idea of transparency remains wildly undertheorized. See supra note 159 and accompanying text.
306. See generally Jerry L. Mashaw, Reasoned Administration: The European Union, the United States, and the Project of Democratic Governance, 76 GEO. WASH. L. REV. 99 (2007) (discussing the right to reasons and the practice of administrative reason giving) ;
307. Jerry L. Mashaw, Small Things Like Reasons Are Put in ajar: Reason and Legitimacy in the Administrative State, 70 FORDHAM L. REV. 17 (2001) (discussing the relationship of law and reason). For an early discussion of the external form of transparency in government,
308. see JEREMY BENTHAM, POLITICAL TACTICS 29-44 (Michael James, Cyprian Blamires & Catherine Pease-Watkin eds., Clarendon Press 1999) (1791).
309. See Bibas, supra note 13, at 961-64 (calling for routine disclosure of summary prosecutor office statistics on charging and dispositions).
310. See generally FOUNDATIONS OF ADMINISTRATIVE LAW (Peter H. Schuck ed., 2d ed. 2003) (discussing administrative law generally);
311. Criddle, supra note 133 (outlining an interpretivist model of administrative law).
312. Indeed, the entire doctrine of administrative finality is designed to formalize our uses of external transparency. The doctrine forces an agency to declare its position from an authoritative source before a court may review the administrative action. The use of the legislative veto to control administrative action has made transparency in government more difficult. See INS v. Chadha, 462 U.S. 919 (1983) (striking down a legislative veto). Heavy reliance on appropriations bills as vehicles for substantive legislation and control of agencies create comparable challenges today.
313. Cf. Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 420-25 (analyzing the institutional conditions of prosecutorial misconduct).
314. There are serious challenges in executing this idea. One must consider whether to measure one or multiple factors at each decision point; if multiple factors, one must decide how to give weight to the different factors.
315. See generally Leslie Cory, Looking at the Federal Sentencing Process One Judge at a Time, One Probation Officer at a Time, 51 EMORY L.J. 379 (2002) (examining how judges and probation officers can influence sentencing outcomes);
316. Hirokawa, supra note 37 (discussing the implementation of case-law requirements by police departments).
317. Many scholarly accounts of criminal justice offer a bleak view of the role of media, and this critique surely has some truth to it. See generally DAVIS, supra note 76 (stating that transparency and information about the prosecutor's office is distorted through journalistic habit to promote sensational crime stories);
318. Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 WM. & MARY L. REV. 397 (2006) (arguing that commercial pressures determine the news media's treatment of crime). Yet we do find hope in some prominent journalistic efforts to rise above reporting about single cases to describe the workings of a prosecutor's office more generally. See Wright & Miller, supra note 107, at 90 (reflecting on The Dallas Morning News stories on homicide charging patterns over several years);
319. supra note 164 (describing TRAC and TRACFED);
320. supra note 170 (describing the Greenfeld controversy).
321. See generally JEAN L. COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY (1992) (arguing that the concept of civil society in the West could lead to an expansion of civil rights);
322. JOHN EHRENBERG, CIVIL SOCIETY: THE CRITICAL HISTORY OF AN IDEA (1999) (analyzing the evolving concept of civil society).
323. See supra note 164 (discussing TRAC). For an example of reliance on TRAC data in the terrorism context,
324. see Robert M. Chesney, Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the "Soft- Sentence" and "Data-Reliability" Critiques, 11 LEWIS & CLARK L. REV. 851, 873-74 (2007) (examining two critiques of post-September 11 criminal prosecutions in terrorism-related cases).
325. See Ramji-Nogales et al., supra note 108, at 372-76 (finding disparities for granting asylum within particular asylum offices, immigration courts, and federal appeals courts and also between different geographic regions);
326. TRAC Immigration, Immigration Judges, http://trac. syr.edu/immigration/ reports/160 (last visited Oct. 16, 2008) (reporting that for 208 immigration judges, denial of asylum rates ranged from a low of 10% to a high of 98%);
327. see also Rachel L. Swarns, Study Finds Disparities in Judges' Asylum Rulings, N.Y. TIMES, July 31, 2006, at A15 (reporting on a study that examined 297,240 immigration cases from 1995 to 2005 and found wide disparities in the rate at which judges granted asylum, with asylees' nationalities and legal representation affecting grants or denials).
328. Exceptions to this general limitation involve legislative review of the most extraordinary executive decisions. See Paul Singer, Showdown Brewing Over Presidential Papers, ROLL CALL, Mar. 15, 2007 (discussing House and Senate efforts to overturn an executive order by President Bush that restricted the release of former presidents' papers and records);
329. cf. MORTON ROSENBERG, CONG. RESEARCH SERV., CONGRESSIONAL INVESTIGATIONS OF THE DEPARTMENT OF JUSTICE, 1920-2007: HISTORY, LAW, AND PRACTICE 5-17 (2007), available at http://www.fas.org/sgp/crs/misc/RL34197.pdf (discussing congressional oversight of the U.S. Justice Department, from the Teapot Dome Scandal through investigation of the prosecutorial misconduct of Randall Weaver and Kevin Harris at Ruby Ridge, Idaho).
330. See Information Quality Act, Pub. L. No. 106-554, § 515, 114 Stat. 2763 (2000) (codified in 44 U.S.C. §§ 3504(d)(1), 3516 (2000)) (requiring the Office of Management and Budget to issue guidance to federal agencies to ensure "quality, objectivity, utility and integrity" of disseminated information and requiring those agencies to promulgate rules that complied with that guidance). Courts, too, can mandate executive rules or procedures.
331. See generally Ronald F. Wright, Sentencing Commissions as Provocateurs of Prosecutorial Self-Regulation, 105 COLUM. L. REV. 1010 (2005) (discussing the role of courts in prompting prosecutors to develop general rules for charging).
332. See Wechsler, supra note 1, at 1102 (observing that "a society that holds, as we do, to belief in law cannot regard with unconcern the fact that . . . agencies can exercise so large an influence . . . without reference to any norms but those that they may create for themselves").
333. See, e.g., U.S. ATTORNEYS' MANUAL § 9-2.031 (2006) (Dual Prosecution and Successive Prosecution Policy, or "Petite Policy").
334. See id. § 9-162 (Federal Prosecution of Business Organizations);
335. U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' WRITTEN GUIDELINES FOR THE DECLINATION OF ALLEGED VIOLATIONS OF FEDERAL CRIMINAL LAWS: A REPORT TO THE UNITED STATES CONGRESS (1979),
336. reprinted in MILLER & WRIGHT, supra note 37, at 897. It is interesting to note that the promulgation of the declination policies came about from congressional concern about high federal declination rates. Other policies have been captured in the U.S. Attorneys' Manual - which is also available to the public - for many years.
337. FLA. STAT. § 775.084(4) (1988).
338. See ECON. & DEMOGRAPHIC RESEARCH DIV., JOINT LEGISLATIVE MGMT. COMM. OF THE FLA. LEGISLATURE, AN EMPIRICAL EXAMINATION OF THE APPLICATION OF FLORIDA'S HABITUAL OFFENDER STATUTE (1992) (on file with authors).
339. See FLA. PROSECUTING ATTORNEYS' ASS'N, STATEMENT CONCERNING IMPLEMENTING OF HABITUAL OFFENDER LAWS (1993),
340. reprinted in MILLER & WRIGHT, supra note 37, at 937.
341. See generally Wright & Miller, Screening/Bargaining Tradeoff, supra note 13;
342. Wright & Miller, Honesty & Opacity, supra note 13;
343. supra Part I.
344. See Michael M. O'Hear, National Uniformity/Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State Sentencing Disparities, 87 IOWA L. REV. 721, 732-35 (2002) (detailing prosecutorial forum shopping in regards to sentencing) ;
345. Ronald F. Wright, Federal or State? Sorting as a Sentencing Choice, CRIM. JUST., Summer 2006, at 16, 19-20 (discussing prosecutor sorting).
346. 5 U.S.C. § 552(b) (7) (2000).
347. United States v. Armstrong, 517 U.S. 456 (1996), created such a high bar to discovery about declination, charging, and sorting information - even for claims of racial bias - that it may be set higher than all but the most exceptional defendant can cross, like a pole vault crossbar set for six meters. The world record is 6.14 meters. Only fifteen vaulters have cleared six meters or higher.
348. See Jessica Halloran, Rest Assured Hooker Will Improve Leaps and Bounds, SYDNEY MORNING HERALD (Sydney, Austl.), Feb. 29, 2008, at 28 (reporting that Australian pole-vaulter Steve Hooker became the fifteenth member of the "six-meter club" in 2008).
349. The New Orleans District Attorney's Office had what may have been one of the most internally transparent systems in the country. But the existence of that system was largely unknown to New Orleans citizens; summaries or portions of the data were not publically released or available for external review. We use the past tense because there is no indication that Harry Connick's successors have continued to use the same system. There was considerable evidence even before the flood that the then-new District Attorney planned to shift the goals of the office to include far more charge bargaining. See Gwen Filosa, Jordan Reduces Backlog of Cases; DA Lets Many Plead Guilty to Lesser Charges, TIMES-PICAYUNE (New Orleans, La.), Apr. 23, 2003, at A1 (highlighting the new District Attorney's use of charge bargains in backlog reduction in first 100 days in office);
350. Michael Perlstein, Open to Appeal: Convicted Criminals Say DA Policy Change Gives Them Fair Shot, TIMES-PICAYUNE (New Orleans, La.), July 20, 2003, at A1 (detailing changes in the District Attorney's office and emphasizing the increased use of charge bargains).
351. The drive to collect data about each stop has tended to include not only information about the initial stop but also about the subsequent decision to conduct a search or to request consent. The movement to collect this additional information was informed by prominent research suggesting that initial stops might be race neutral or at least not significantly disparate, but that subsequent decisions - when the police officer knows the race of the driver or passengers - could be far more disparate. The various articles of David Harris nicely summarize the experience of police departments in collecting information about stops and subsequent consensual searches.
352. See, e.g., Dionne Searcey, State Patrol to Begin Collecting Race Data During Traffic Stops, SEATTLE TIMES, Sept. 30, 1999, at A1 (describing a new Washington State Patrol policy of recording the race of each driver subject to a traffic stop, to uncover and combat racial profiling);
353. Adam Silverman, Police to Collect Race Data, BURLINGTON FREE PRESS (Vt.), June 11, 2008, at 1B (describing a test by three Vermont police departments of recording the race of each person subject to a traffic stop, an initiative intended to uncover and combat racial profiling).
354. See MILLER & WRIGHT, supra note 37, at ch. 8, pt. E;
355. Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 LAW & HUM. BEHAV. 381, 393 (2007) (finding that only 16% of the 631 police investigators surveyed worked in jurisdictions where electronic recording was required but that 81% believed that interrogations should be recorded);
356. Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 WIS. L. REV. 479, 489-506 (including a brief survey of the history of recording requirements across the United States) ;
357. Lisa C Oliver, Mandatory Recording of Custodial Interrogations Nationwide: Recommending a New Model Code, 39 SUFFOLK U. L. REV. 263, 268-77 (2005) (including a detailed analysis of recording requirements across the United States).
358. SEX, LIES, & VIDEOTAPE (Sony Pictures 1989). Of course images can be manufactured and cameras can malfunction, be turned on too late, or be turned off.
359. See supra Part II.B.2 (discussing the PRJ project).
360. Vera Inst, of Justice, supra note 12. The virtues of designing or improving data models for prosecutorial decisionmaking include self-reflection by line and supervising prosecutors in designing the information system and in explaining decisions in ways that traditional prosecutorial models do not require.
361. See, e.g., Sandy Davis, Jena Braces for Marchers; Prosecutor Says Victim of Beating Lost in "Racism" Claims, ADVOC. (Baton Rouge, La.), Sept. 20, 2007, at A1 (quoting the LaSalle Parish District Attorney as saying that the Jena beating case "is not and never has been about race");
362. Natalie Neysa Alund & Carl Mario Nudi, Jury Picked to Hear Walker Murder Trial, BRADENTON HERALD (Fla.), Apr. 8, 2008, at 1 (reporting that the Manatee County Prosecutor said that "race plays no role in our decision-making process");
363. Mary Beth Pfeiffer & Kathianne Boniello, Black Suspects Lose Assets Most, POUGHKEEPSIE J. (N.Y.),Jan. 25, 2004, at 1A (noting that the Duchess County Senior Assistant District Attorney stated that the District Attorney's office has "a complete and totally race-neutral policy in regard to all prosecutions");
364. Jeremy Redmon, Sex Landed Him in Prison; Will Petition Bail Him Out?, ATLANTA J.-CONST., June 6, 2007, at A1 (discussing the fact that the Douglas County District Attorney said that "race did not play a role" in the aggravated child molestation case against Genarlow Wilson, seventeen years old at the time of the alleged crime);
365. Farah Stockman, Candidates Spar After Point Raised on Minorities, BOSTON GLOBE, Oct. 23, 2002, at B6 (stating that the Suffolk County District Attorney said that "race plays no role in his prosecutions");
366. Nicole Weisensee, "Not About Race" DA: Probe of Shooting Proceeding at "Priority," PHILA. DAILY NEWS, Jan. 21, 1998, at 6 (observing that the Philadelphia District Attorney said that "race does not play a role in any decision we make").
367. See Wright & Miller, supra note 107, at 95-96.