Prosecutorial regulation versus prosecutorial accountability

University of Pennsylvania Law Review

Volumn 157, Issue 4, 2009, Pages 959-1016

  Bibas, Stephanos ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 66049101723     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (388)

1. Pub. L. No. 79-404, 60 Stat. 237 (1946)
2. (codified as amended at 5 U.S.C. §§ 551-559, 701-706 (2006)).
3. Pub. L. No. 94-409, 90 Stat. 1241 (1976) (codified as amended at 5 U.S.C. § 552b).
4. See Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 993 (2006) ("[T]he government faces almost no institutional checks when it proceeds in criminal matters.").
5. William Stuntz has explored this theme in many of his works. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 529-57 (2001) [hereinafter Stuntz, Pathological Politics];
6. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 55-59 (1997) (noting that legislatures get around problems of proving crimes by creating new crimes that apply more broadly and are easier to prove).
7. See Stephanos Bibas, Essay, Transparency and Participation in Criminal Procedure, 81 N.Y.U.L. REV. 911, 923-31 (2006).
8. McCleskey v. Kemp, 481 U.S. 279, 297, 312 (1987)
9. (quoting KENNETH CULP DAVIS, DISCRETIONARY JUSTICE 170 (1969)).
10. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2471 (2004).
11. Id. at 2470-72.
12. There certainly may be other problems with the criminal justice system, such as many observers' sense that it is too harsh across the board. Because this harshness is primarily a matter of legislative policy, rather than prosecutorial discretion in apportioning punishment among cases, I will not focus on it here.
13. For more extended treatments of the problem of unregulated prosecutorial discretion, see DAVIS, supra note 6, at 166-72;
14. Bibas, supra note 5;
15. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1545-60 (1981).
16. See Vorenberg, supra note 10, at 1567;
17. see also Arnold I. Burns et al., Curbing Prosecutorial Excess: A Job for the Courts & Congress, CHAMPION, July 1998, at 12, 63 (discussing legislation to increase oversight of prosecutors).
18. See, e.g., ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 180-83 (2007) (emphasizing the need for stronger bar disciplinary processes);
19. DAVIS, supra note 6, at 209-12 (suggesting judicial review of prosecutors' decisions to charge or not to charge in individual cases);
20. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693, 733-42 (1987) (proposing substantive and procedural changes for bar disciplinary proceedings);
21. Vorenberg, supra note 10, at 1568-72 (endorsing broader judicial review of prosecutors' charging and plea-bargaining decisions in individual cases).
22. These categories simplify messy realities. One can treat the public at large, the voting public, or subsets such as particular communities or neighborhoods as principals. Likewise, other stakeholders include not only direct victims of crimes and defendants, but also their families and friends, bystanders, and other local residents affected by or fearful of particular crimes. While the interests of these groups doubtless vary, they also have much in common. For the sake of simplicity and analytical clarity, I will focus on the categories of victims, defendants, and the public, without further differentiating ways in which subunits of these categories may vary in their interests and perspectives.
23. See infra note 83 and accompanying text.
24. See Bibas, supra note 5, at 933-46.
25. One notable exception is Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 53 & n. 84 (2002), though that brief discussion asserted that external controls do not work without really explaining why.
26. See, e.g., Albert W. Alschuler, The Prosecutor's Role in Plea Bargaining, 36 U. CHI. L. REV. 50, 52, 105-12 (1968) (arguing that plea bargaining should be abolished, in part because prosecutors are poor guardians of the public interest and have strong temptations to serve their self-interests);
27. Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979, 2003-08 (1992) (proposing the abolition of plea bargaining, or at least fixed plea discounts in order to increase deterrence and avoid unfairness to defendants and harm to innocent defendants);
28. Vorenberg, supra note 10, at 1560-61 (proposing that, if legislatures cannot abolish plea bargaining, they should at least peg discounts at ten or twenty percent).
29. See, e.g., CAL. PENAL CODE § 1192.7 (West 2004) (banning plea bargaining in all cases where indictment or information charges specified serious crimes);
30. N.Y. CRIM PROC. LAW § 220.10 (McKinney Supp. 2008) (gready restricting prosecutors' ability to plea bargain around mandatory drug sentences);
31. see also U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 (2005) (specifying fixed sentencing reductions of two to three offense levels as a reward for acceptance of responsibility).
32. See Daniel C. Richman & William J. Stuntz, Essay, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 630-31 (2005) (suggesting that criminal-code reform would help voters and legislators to assess prosecutors' performance);
33. Vorenberg, supra note 10, at 1567-68 (arguing that criminal-code revision could reduce prosecutorial discretion by specifying punishments more precisely).
34. See Vorenberg, supra note 10, at 1567.
35. Stuntz, Pathological Politics, supra note 4, at 528-39, 552.
36. See id. at 548-49 (citing the example of Kenneth Starr's investigation of President Clinton, which made the public angry at Starr but not at Congress).
37. See Craig S. Lerner, Legislators as the "American Criminal Class": Why Congress (Sometimes) Protects the Rights of Defendants, 2004 U. ILL. L. REV. 599. For example, after the FBI's Abscam sting operation targeted several United States Senators and Representatives, legislation required special approval before the FBI could use informants in public-corruption cases or wiretap members of Congress.
38. Id. at 636-40. After another FBI investigation failed to secure the conviction of Representative Joseph McDade for public corruption, McDade successfully sponsored a bill to apply statc ethics rules to federal prosecutors.
39. Id. at 650-56.
40. See, e.g., Paul H. Robinson & Michael T. Cahill, The Accelerating Degradation of American Criminal Codes, 56 HASTINGS L.J. 633, 644-45 (2005) [hereinafter Robinson & Cahill, Accelerating Degradation] ("Often, the drafters and enacters of a new provision do not know or especially care how it relates to the existing code, so amendments might overlap with the existing code while deviating from its form.");
41. Paul H. Robinson & Michael T. Cahill, Can a Model Penal Code Second Save the States from Themselves?, 1 OHIO ST. J. CRIM. L. 169, 170-72 (2003) [hereinafter Robinson & Cahill, Model Penal Code Second].
42. See Robinson & Cahill, Model Penal Code Second, supra note 23, at 172-73 (citing as an example Illinois, where in the 1990s the criminal code was amended twice as many times as it had been in the previous two decades).
43. See Ronald L. Gainer, Federal Criminal Code Reform: Past and Future, 2 BUFF. CRIM. L. REV. 45, 111-52 (1998) (discussing past efforts to reform the federal criminal code and how they became mired in political battles, as well as the formidable barriers of inertia and self-interest to any comprehensive reform).
44. While the Model Penal Code was the impetus to initial codification four decades ago, "most legislatures no longer use their criminal law codification power to promote broad and useful change, but have become 'offense factories' churning out more and more narrow, unnecessary, and often counterproductive new offenses⋯ [b]ecause no elected legislative member can afford to appear 'soft on crime.'" Robinson & Cahill, Accelerating Degradation, supra note 23, at 634-35.
45. But see Darryl K. Brown, Democracy and Decriminalizalion, 86 TEX. L. REV. 223, 234-40, 243-44 (2007) (noting that many states have abolished morals offenses and decriminalized some traffic violations and that some states have reduced drug sentences).
46. See Bibas, supra note 5, at 939-40 (citing as an example mandatory-minimum sentencing laws, which legislatures pass to satisfy the public while, in effect, giving prosecutors more charging and plea-bargaining tools). The incentives discussed above explain the fate of legislation that would appear to regulate prosecutors. For example, in 1981 a California Senate bill would have banned plea bargaining in cases where the complaint, indictment, or information charged specified serious crimes. The California District Attorneys Association actively opposed the bill, apparently contributing to its defeat. When the proposed ban resurfaced as a ballot initiative the next year, the drafters appeased prosecutors by dropping any reference to complaints.
47. See CANDACE MC COY, POLITICS AND PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA 30-31, 38 (1993). As a result, though the public thought that the intiative would ban plea bargaining, it simply accelerated plea bargaining. Prosecutors bargained over complaints filed in Municipal Court before filing indictments or informations in Superior Court.
48. Id. at 37-38, 90-94, 118-24.
49. See Bibas, supra note 5, at 937-39, 943-45.
50. See Vorenberg, supra note 10, at 1567;
51. see also Theodora Galacatos, Note, The United States Department of Justice Environmental Crimes Section: A Case Study of Inter- and Intrabranch Conflict over Congressional Oversight and the Exercise of Prosecutorial Discretion, 64 FORDHAM L. REV. 587, 658-59 (1995) (endorsing congressional monitoring of environmental-crimes prosecution to guard against "undue partisan pressures").
52. See generally JOHN C. GRABOW, CONGRESSIONAL INVESTIGATIONS 79-86, 176-82 (1988);
53. MORTON ROSENBERG, CONG. RESEARCH SERV., INVESTIGATIVE OVERSIGHT: AN INTRODUCTION TO THE LAW, PRACTICE AND PROCEDURE OF CONGRESSIONAL INQUIRY 7-10, 29-35 (1995).
54. GRABOW, supra note 30, at 182-87;
55. ROSENBERG, supra note 30, at 26-37.
56. See, e.g., Philip Shenon, As New 'Cop on the Beat,' Congressman Starts Patrol, N.Y. TIMES, Feb. 6, 2007, at A18 (reporting that the Chairman of the House Oversight and Government Reform Committee planned to investigate government contracting fraud in Iraq and the cleanup after Hurricane Katrina);
57. see also Excerpts from the Senate Committee Hearing on the. Collapse of Enron, N.Y. TIMES, Feb. 13, 2002, at C8 (reporting senators' expressions of anger directed at Kenneth Lay, the former CEO of Enron). Note, however, that these oversight hearings have tended to focus on the crimes and criminals themselves, rather than on prosecutors' patterns of investigation and prosecution.
58. See Ellen S. Podgor, Department of Justice Guidelines: Balancing "Discretionary Justice," 13 CORNELL J.L. & PUB. POL'Y 167, 198-200 (2004) (noting that the U.S. Senate Judiciary Committee has reviewed the failure of the Department of Justice (DOJ) to adhere to its own clemency guidelines, that the Office of Inspector General for the DOJ has reviewed the DOJ's treatment of terrorism detainees, and that the General Accounting Office has reviewed the DOJ's implementation of False Claims Act guidance).
59. See Vorenberg, supra note 10, at 1568-72 (proposing that prosecutors should have to announce charging and plea-bargaining guidelines and that judges should review their compliance with these guidelines in individual cases).
60. See DAVIS, supra note 6, at 207-14 (arguing that "[t]he reasons for a judicial check of prosecutors' discretion are stronger than for such a check of other administrative discretion that is now traditionally reviewable," but recognizing that his proposal "is contrary to the settled judicial tradition" (emphasis omitted)).
61. See, e.g., Donald G. Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing an Ideal, 49 GEO. WASH. L. REV. 659, 685-717 (1981) (suggesting greater judicial inquiry into prosecutors' motives in deciding whether to bring charges);
62. Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 AM. CRIM. L. REV. 1071, 1106-19 (1996) (proposing greater judicial discretion to order discovery about prosecutorial charging practices, suggesting other sources of evidence that judges could weigh, and recommending a clearer judicial definition of selective prosecution);
63. Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365, 1365-66, 1476-77 (1987) (advocating judicial review of prosecutorial decisions based more on objective standards and less on prosecutors' intent, and taking for granted that "[t]he courts are the most important, and in many instances the only, check on prosecutorial misbehavior").
64. The last successful claim of racially selective prosecution appears to have been Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886), which held that city officials violated equal protection by enforcing fire-safety ordinances almost exclusively against Chinese immigrants.
65. United States v. Armstrong, 517 U.S. 456, 469 (1996).
66. See Wayte v. United States, 470 U.S. 598, 607 (1985) ("Such factors as the strength of a case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.").
67. Id.
68. See, e.g., Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379-83 (2d Cir. 1973) (holding that courts lack the capacity to review prosecutors' decisions not to prosecute prison officials);
69. United States v. Cox, 342 F.2d 167, 172 (5th Cir. 1965) (reversing contempt citation imposed on a prosecutor who refused to sign a grand jury indictment charging perjury);
70. Powell v. Katzenbach, 359 F.2d 234, 234-35 (D.C. Cir. 1965) (per curiam) (affirming the dismissal of a complaint that sought mandamus to require the U.S. Attorney General to prosecute a bank for conspiracy);
71. MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES 908 (3d ed. 2007) (noting that "[j]udges might overturn a prosecutor's decision to file charges or not to file charges, but only in rare circumstances" and that even in a "strong minority of states" that explicitly authorize judicial review, judges are "very deferential").
72. See, e.g., FED. R. CRIM. P. 5.1 (e) (requiring a magistrate to find probable cause that the defendant has committed a crime to bind the defendant over for further proceedings);
73. United States v. Watson, 423 U.S. 411, 415-17 (1976) (noting that police officers may arrest a suspect if they have probable cause).
74. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."). Judges in a few jurisdictions do take more aggressive roles, but they appear to be outliers.
75. See MILLER & WRIGHT, supra note 41, at 1185 (reporting that the federal system and a majority of state systems forbid judicial participation in plea negotiations while another group of states discourages it, and noting that more than a dozen states do not discourage or may even authorize judicial participation, though this participation may be limited to responding to parties' invitations or commenting on the parties' proposals).
76. See Bordenkircher, 434 U.S. at 365 (upholding the imposition of a life sentence after trial upon a defendant who refused to accept a five-year plea bargain).
77. I have written about these topics at length elsewhere. See Stephanos Bibas, The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain, 94 J. CRIM. L. & CRIMINOLOGY 295 (2004) (describing how changes to the Sentencing Guidelines have increased prosecutorial leverage and limited judicial oversight);
78. Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097, 1151-70 (2001)
79. (discussing how Apprendi v. New Jersey, 530 U.S. 466 (2000), may perversely have increased prosecutors' powers to plea bargain in some cases). George Fisher and William Stuntz have elaborated on these problems as well.
80. See GEORGE FISHER, PLEA BARGAINING'S TRIUMPH 208-29 (2003) (discussing mandatory minima and sentencing guidelines);
81. Stuntz, Pathological Politics, supra note 4, at 512-23 (discussing how criminal codes' breadth and depth transfer power from courts to prosecutors and police).
82. See Prob. Officers Advisory Group to the U.S. Sentencing Comm'n, Probation Officers' Survey, FED. SENT'G REP., May/June 1996, at 303, 305-06, 310-11 (reporting that parties frequently withhold or misstate facts that would contradict plea agreements).
83. See id. at 306, 311-13 (reporting that when a probation officer's version of facts and calculations differs from the parties' version, many judges defer to the parties' version instead of investigating and relying on a more accurate version);
84. cf. Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 STAN. L. REV. 293, 304-06 (2005) (suggesting better funding and standards for presentence investigations, as well as pre-plea review of sentencing information).
85. See, e.g., United States v. Yeje-Cabrera, 430 F.3d 1, 28 (1st Cir. 2005) ("[T]he costs of monitoring compliance with such a mandatory disclosure system are high, and many of the efficiencies created by plea bargaining would be lost⋯. [Also,] the federal rules prohibit involvement by a trial judge in plea bargaining."). Nevertheless, academics continue to recommend more vigorous judicial oversight.
86. See, e.g., Oren Gazal-Ayal, Partial Ban on Plea Bargains, 27 CARDOZO L. REV. 2295 (2006) (recommending that judges reject plea bargains that result in large sentencing reductions).
87. See FISHER, supra note 45, at 131-33 (explaining that a century ago in Massachusetts, parties made a point of pleading before those judges who habitually followed parties' sentencing recommendations).
88. See, e.g., Frank O. Bowman, III & Michael Heise, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 IOWA L. REV. 1043, 1131-33 (2001) (marshalling evidence that many judges view federal drug penalties as too harsh and are happy to go along with plea bargains that subvert them).
89. See supra text accompanying notes 37-38 (discussing the impossibly high threshold for even gaining discovery on selective-prosecution claims);
90. see also McCleskey v. Kemp, 481 U.S. 279, 287, 292 (1987) (rejecting constitutional challenges to Georgia's capital-sentencing system despite massive statistical evidence of race-of-victim disparities, because petitioner lacked direct evidence of discriminatory purpose in his particular case).
91. See McCleskey, 481 U.S. at 279 ("[W]e would demand exceptionally clear proof before we would infer that⋯ discretion has been abused.").
92. See id. at 319.
93. See DAVIS, supra note 6, at 14, 170-72 (noting "[t]hat illegal inaction is much easier than illegal action" and that leniency in enforcement makes possible injustice and discrimination).
94. See Michael J. Raphael & Edward J. Ungvarsky, Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky, 27 U. MICH. J.L. REFORM 229, 266 (1993) (concluding, based on an empirical survey of post-Baton cases, "that Baton's neutral explanation requirement is, regrettably, a relatively simple hurdle for a prosecutor to clear. Even a prosecutor who has dismissed jurors for racial reasons can concoct a neutral explanation for his actions that the courts will accept as proof that his strikes were not racially motivated").
95. See Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976) (articulating common law immunity and extending it to civil rights suite brought under 42 U.S.C. § 1983).
96. See, e.g., Margaret Z. Johns, Reconsidering Absolute Prosecutorial Immunity, 2005 BYU L. REV. 53, 55-57 (arguing that qualified prosecutorial immunity would be sufficient to preserve the benefits of absolute immunity while making it easier to combat misconduct);
97. Lesley E. Williams, Note, The Civil Regulation of Prosecutors, 67 FORDHAM L. REV. 3441, 3479-80 (1999) (concluding that qualified immunity would strike a better balance than absolute immunity between protecting well-meaning prosecutors and holding willful wrongdoers liable).
98. But of. Imbler, 424 U.S. at 429 (suggesting, without support, that criminal prosecution could punish and deter prosecutorial misconduct effectively). Prosecutors are prosecuted once in a great while, though prosecutions are probably too rare to influence prosecutors' behavior.
99. See, e.g., Eric Lichtblau, Ex-Prosecutor in Terror Inquiry Is Indicted, N.Y. TIMES, Mar. 30, 2006, at A18 (noting indictment of prosecutor whose presentation of false evidence and concealment of damaging evidence led to the collapse of a high-profile terrorism prosecution).
100. Imbler, 424 U.S. at 429.
101. See Rosen, supra note 12, at 708-14 (discussing the ethical limits on prosecutors' use of false evidence or withholding exculpatory evidence, including provisions of the Model Code and the Model Rules);
102. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 739 tbl.IV (2001) (cataloguing thirty provisions of the Model Rules of which prosecutors are likely to run afoul);
103. cf. DAVIS, supra note 12, at 161 (suggesting the creation of separate disciplinary rules and processes tailored to prosecutors' special role).
104. See Rosen, supra note 12, at 715 ("All of the states have based their disciplinary codes to some degree on either the Model Code or Model Rules.").
105. See id. (noting that every state has forbidden fraud, deceit, and presenting false testimony but that only the "vast majority" of them have enacted rules specifically forbidding prosecutors to suppress exculpatory evidence).
106. MODEL RULES OF PROF'L CONDUCT R. 3.8(a) (2006);
107. MODEL CODE OF PROF'L RESPONSIBILITY DR 7-103(A) (1980).
108. See 28 U.S.C. § 530B(a) (2006) (subjecting government attorneys to the state rules and laws and to the local rules of federal court of each state in which they practice).
109. For a fascinating explanation of how the McDade Amendment was a backlash against the unsuccessful prosecution of Representative Joseph McDade, see Lerner, supra note 22, at 641-42, 650-56.
110. See Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 257, 266-70, 276-84, 302-06 (2008) (discussing two special prosecutors who were reprimanded by bar authorities for unintentionally failing to turn over Brady material, two prosecutors who were never pursued by bar authorities because statutes of limitations protected them from discipline, and the notorious prosecutor of the Duke lacrosse players, who was disbarred after extensive publicity surrounding a deeply flawed prosecution). Note, however, that the prosecutor of the Duke lacrosse players was flayed in the media and removed from the case once the suppressed exculpatory material came to light. His later disbarment piggybacked on the information that had already come to light; it was a backstop to, rather than the principal check on, his misconduct. Bar authorities have imposed sanctions on prosecutors in a couple of other exceptional recent cases.
111. See In re Zawada, 92 P.3d 862, 862 (Ariz. 2004) (en banc) (suspending a prosecutor for unethical cross-examination);
112. In re Peasley, 90 P.3d 764, 764 (Ariz. 2004) (en banc) (disbarring a prosecutor for purposely presenting false testimony).
113. See Rosen, supra note 12, at 720-31 (reporting the results of an empirical survey of reported cases and survey forms returned by forty-one out of fifty state disciplinary boards, and noting that the one disbarment was pending on appeal as of the completion of the study).
114. See Ken Armstrong & Maurice Possley, Break Rules, Be Promoted, CHI. TRIB., Jan. 14, 1999, at 1 (noting that many prosecutors who commit misconduct are nevertheless promoted);
115. Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at 1 (reporting that even though 381 homicide convictions had been reversed since 1963 because prosecutors had withheld exculpatory evidence or knowingly used false evidence, not a single one of the prosecutors responsible received significant punishment). Another newspaper study reviewed 1500 allegations of prosecutorial misconduct over a ten-year period. Though the study turned up hundreds of discovery violations involving exculpatory or impeachment evidence, "[p]rosecutors who violated discovery rules were seldom punished. Many violated discovery rules over and over again." Bill Moushey, Hiding the Facts: Discovery Violations Have Made Evidence-Gathering a Shell Game, PITT. POST- GAZETTE, Nov. 24, 1998, at A1.
116. See Zacharias, supra note 60, at 743, 744 & n. 83, 745 & n. 86, 746-50 (considering reported cases as old as 1886 and through about 1999).
117. See id. at 745-48.
118. Id. at 755.
119. See id. ("Violation of a single rule rarely suffices to produce bar action.").
120. In theory, the paucity of cases brought could mean that the sanctions are working and deterring most prosecutorial misconduct. As the studies discussed above show, however, serious misconduct still occurs and is sanctioned too lightly to deter effectively. See Stephanos Bibas, Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?, in CRIMINAL PROCEDURE STORIES 129, 144-46 (Carol Steiker ed., 2006) (reporting an empirical study of 210 Brady and Giglio cases decided in 2004 and of 448 Brady and Giglio claims that succeeded or were remanded between 1959 and August 2004).
121. See Zacharias, supra note 60, at 757-59 (noting that self-serving intentional misconduct by lawyers tarnishes the reputation of the bar the most, and also explaining that bar authorities discount grievances filed by defendants and their counsel, lest bar proceedings degenerate into collateral litigation used to secure a tactical advantage in criminal cases).
122. See id. at 761 (suggesting that since bar authorities in most jurisdictions are controlled by the judicial branch, whereas prosecutors are functionaries of the executive, disciplinary agencies may shrink from investigating prosecutors on separation-of-powers grounds).
123. See Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393, 463-64 (2001) (proposing the creation of prosecution-review boards to randomly review prosecutorial decisions);
124. Lyn M. Morton, Note, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7 GEO. J. LEGAL ETHICS 1083, 1114-15 (1994) (proposing a prosecutorial-conduct commission to investigate misconduct by prosecutors).
125. Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289, 309 (1983);
126. see also id. at 294-95, 300-01, 314-15 (using economic analysis to illustrate problems with the state's ability to inflict harsh punishment, prosecutorial regulation, and plea bargaining);
127. Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J. 1969, 1975-77 (1992) (belittling agency costs and criticizing "the lure of regulation" in the context of plea bargaining).
128. See, e.g., Alschuler, supra note 16, at 105-12 (arguing that prosecutors are tempted to serve their self-interests in high conviction statistics and so fail to act in the public interest when plea bargaining, without using agency-cost terminology);
129. Schulhofer, supra note 16, at 1987-88 (noting that there are two sets of agency problems in plea bargaining: one involving the public and the district attorney and one involving the district attorney and his assistants, who may likewise have interests that diverge from those of their superior).
130. Schulhofer, for example, devotes only a single sentence to judicial and supervisory review of decisions to charge or not charge. See Stephen J. Schulhofer, Criminal Justice Discretion as a Regulatory System, 17 J. LEGAL STUD. 43, 52 (1988) (acknowledging that the current system of judicial and supervisory review of decisions to charge or not to charge maximizes deterrence at minimum cost).
131. There are a handful of exceptions, though each one touches on only a corner of the problem. See, e.g., Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851, 873-75 (1995) (suggesting the use of monetary rewards to minimize tactical overcharging and charge bargaining);
132. Daniel Richman, Institutional Coordination and Sentencing Reform, 84 TEX. L. REV. 2055, 2063-64, 2072-74 (2006) (suggesting that sentencing reform can empower sentencing judges and head prosecutors to regulate line prosecutors' plea bargaining).
133. For classic statements of this position, see, for example, A.A. Berle, Jr., Corporate Powers as Powers in Trust, 44 HARV. L. REV. 1049, 1049 (1931), arguing that "all powers granted to a corporation or the management of a corporation ⋯ are necessarily and at all times exercisable only for the ratable benefit of all the shareholders as their interest appears."
134. See also Milton Friedman, A Friedman Doctrine - The Social Responsibility of Business Is to Increase Its Profits, N.Y. TIMES MAG., Sept. 13, 1970, at 32 (likening the doctrine of "social responsibility" of business to socialism).
135. The leading recent critic of the shareholder-primacy thesis is Lynn Stout. See, e.g., Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 VA. L. REV. 247, 250-55, 276-81 (1999) (arguing that employees, managers, creditors, and others cannot specify all of their interests in detailed contracts ex ante, and so they prefer instead to trust that directors will accord them fair consideration in the distribution of profits);
136. Lynn A. Stout, Bad and Not-So-Bad Arguments for Shareholder Primacy, 75 S. CAL. L. REV. 1189, 1190-99, 1208 (2002) (identifying three common arguments for shareholder primacy and explaining flaws in them);
137. Lynn A. Stout, New Thinking on "Shareholder Primacy" 28 (Jan. 10, 2005) (unpublished manuscript), available at http://www.law.ucla.edu/ docs/bus.sloan-stout.pdf (noting that several scholars have recently argued that, contrary to conventional shareholder-primacy theory, "shareholders themselves might prefer more stakeholder-friendly director primacy rules").
138. The Supreme Court famously declared that a prosecutor "may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88 (1935). For example, prosecutors may not withhold exculpatory evidence, misrepresent facts, or discriminate on morally irrelevant criteria.
139. One could break down these categories into subcategories. The general public is not quite the same as the voting public; most felons and aliens, for example, cannot vote. One could look at the public nationwide or focus on how particular locales and communities view crime. Likewise, one could look not only at direct victims, but also at their family and friends, bystanders to crime, and other locals who are indirectly affected by a crime. Subclasses of defendants vary based on race, class, locale, and prior record, and defendants' families and defense lawyers' perspectives vary from those of defendants themselves. The interests, knowledge, and relative power of each of these subgroups vary slightly. For the sake of analytical simplicity, however, Section IIA aggregates the different segments of the public, while Section II.B aggregates the different victim-related groups and Section II.C aggregates the different defendant-related groups.
140. See Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. I., REV. 1829, 1846-92 (2007) (finding, based on empirical studies, remarkable agreement across groups and cultures on the relative seriousness of violent, property, and deception crimes, and lesser but still significant agreement about drug and sex offenses).
141. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 68 (1990) (noting that the sense that the law accords with one's sense of justice is the most important influence on people's decision to follow the law);
142. Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 468-71 (1997) (noting that people "generally see themselves as moral beings who want to do the right thing as they perceive it").
143. See generally E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 76-81, 106, 208, 215 (1988);
144. TYLER, supra note 85, at 94-109, 125-34, 146-47, 161-69, 178.
145. In theory, democratic legislatures should already be policing prosecutors on the voters' behalf, but structural democratic deficits keep this mechanism from working well. See Bibas, supra note 5, at 920-31 (arguing that structural changes to the criminal justice system beginning in the eighteenth century have created a system largely shielded from public scrutiny);
146. Stuntz, Pathological Politics, supra note 4, at 528-39, 552 (discussing the incentives facing prosecutors, legislatures, and the courts);
147. infra Section II.A. We need new efforts to make prosecutors more responsive to their principals.
148. See Bibas, supra note 5, at 924-26.
149. See id. at 927-28.
150. See id. at 929-30.
151. See Carol J. DeFrances, Prosecutors in State Courts, 2001, BUREAU JUST. STAT. BULL., May 2002, app. (reporting that every state except for Alaska, Connecticut, New Jersey, and the District of Columbia elects its chief prosecutors; that thirty of the states have head prosecutors for each county; and that sixteen states have head prosecutors for each judicial circuit or district).
152. See Sanford C. Gordon & Gregory A. Huber, Citizen Oversight and the Electoral Incentives of Criminal Prosecutors, 46 AM. J. POL. SCI. 334, 349 (2002) (concluding, based on formal modeling, that electoral incentives may encourage prosecutors to pursue justice).
153. See William Claiborne, L.A. District Attorney Garcetti Haunted by Case that Won't Go Away, WASH. POST, Apr. 4, 1996, at A3 (writing Garcetti's epitaph as "The Man Who Lost the OJ. Simpson Murder Case" and quoting "an exasperated Garcetti" as saying: "My God, am I going to be defined by this case forever?").
154. See Mitchell Landsberg, Garcetti's Chances Were Slim, Analysts Say, L.A. TIMES, Nov. 12, 2000, at B1 ("[Garcetti's opponent] almost never even mentioned the Simpson case. He didn't have to. Voters remembered on their own.").
155. See Charlie Brennan, Hard Road for Hurlbert, ROCKY MOUNTAIN NEWS (Denver), Sept. 3, 2004, at 39A;
156. Kirk Johnson, Colorado Election Keeps Bryant Debate Bubbling, N.Y. TIMES, Sept. 21, 2004, at A18 (noting that Hurlbert's opponent made the Bryant case and its aftermath the centerpiece of his campaign);
157. Steve Lipsher, Bryant Case Dogs DA Facing First Election, DENVER POST, Oct. 28, 2004, at 5B;
158. Steve Lipsher, Bryant Prosecutor Relieved After Close Call, DENVER POST, Nov. 4, 2004, at 4B;
159. Steve Lipsher, Hurlbert: No Apologies After Dismissal, DENVER POST, Sept. 3, 2004, at 27A (describing Hurlbert as "bruised but unapologetic" after the dismissal of the charges).
160. See, e.g., Ryan Kim, Incumbent D.A. Tossed Out in Sonoma County, S.F. CHRON., Mar. 6, 2002, at A24 (attributing the challenger's success to the collapse of a murder case after a videotape surfaced that showed prosecutors coaching key witness);
161. Neil A. Lewis, U.S. Lawyer in Terror Case Is Put on Leave, N.Y. TIMES, Mar. 17, 2006, at A20 (noting that the government forced the lawyer who improperly coached witnesses and thus endangered the capital prosecution of Zacarias Moussaoui to take a leave of absence);
162. see also Gromer Jeffers Jr. & Holly Becka, Republicans Begin Hunt for DA Candidate, DALLAS MORNING NEWS, NOV. 12, 2005, at 13A (noting that the district attorney declined to run for reelection because voters would likely have blamed him for a scandal in which paid police informants planted fake drugs on innocent people).
163. See, e.g., Amber Hunt Martin, Viviano Relies on Kin, flowers in Campaign, DETROIT FREE PRESS, Aug. 6, 2004, at 2B (noting that the county prosecutor did not run for reelection because he faced federal corruption charges);
164. Albert Salvato, Ohio: Prosecutor Declines to Run Again, N.Y. TIMES, Sept. 14, 2004, at A18 (noting that county prosecutor withdrew from the reelection race amid a scandal over an affair with an assistant prosecutor).
165. See, e.g., Rick Brand, Democrats Bank on Anti-Catterson Theme, NEWSDAY (Long Island, N.Y.), June 5, 1997, at A34 (reporting that a high conviction rate gave the incumbent prosecutor a huge advantage);
166. Dana Hedgpeth, States Attorney Race in Dead Heat, BALT. SUN, NOV. 4, 1998, at 9D (reporting that the challenger appeared to have barely upset the "heavily favored" incumbent by hammering away at "an embarrassingly low" trial-conviction rate);
167. Jonathan P. Hicks, Staten Island Prosecutor Faces Lawyer in Bid for Re-Election, N.Y. TIMES, July 5, 1999, at B4 (reporting that a challenger attacked the incumbent for having the lowest conviction rate in New York City);
168. Editorial, Re-Elect Pfingst; Dumanis' Dismaying Role in Anti-Semitic Slur, SAN DIEGO UNION-TRIBUNE, Oct. 17, 2002, at B16 (noting that the incumbent's office had the highest conviction rate in the state);
169. Vivian S. Toy, Top Prosecutor in Queens Plans to Run Again, N.Y. TIMES, May 21, 1999, at B8 (comparing the Queens District Attorney's conviction rate with that of other New York City boroughs);
170. Bill Wallace, San Francisco Ranks Last in Convictions, S.F. CHRON., Oct. 17, 2003, at Al (noting that the low conviction rate had become an issue in the incumbent's campaign for reelection).
171. See, e.g., Wright 8c Miller, supra note 15, at 61-62, 115 (reporting attacks on plea bargaining and declinations in races for New Orleans District Attorney);
172. Hicks, supra note 98 (noting the challenger's campaign theme that the incumbent declined to prosecute too many crimes);
173. Amy Smith, John Wayne v. Atticus Finch: Dueling D.A. Candidates Differ on Punishment and Prevention, AUSTIN CHRON., Oct. 18, 1996, at 26 (reporting the challenger's criticism of routine plea bargains and low jury-trial rate).
174. See, e.g., Brand, supra note 98 (reporting that the incumbent took credit for a drop in violent crime);
175. Kelly Brewington, State's Attorney Announces Her Re-Election Bid at Fundraiser, BALT. SUN, Aug. 1, 2005, at 1B (noting that the incumbent received blame for the high crime rate);
176. Leslie Eaton, Morgenthau Runs on His Record, N.Y. TIMES, Aug. 17, 2005, at B7 (describing a television ad in which the Manhattan District Attorney took credit for Manhattan's record-low crime rate);
177. see also Richman & Stuntz, supra note 18, at 602-04 (suggesting that voters will hold district attorneys accountable for rates of FBI index crimes - murder, manslaughter, rape, arson, kidnapping, aggravated assault, robbery, burglary, and auto theft - because they are the most visible).
178. See, e.g., Eaton, supra note 100 (reporting a television ad in which the Manhattan District Attorney emphasized initiatives against guns, gangs, drugs, rapes, child abuse, identity theft, and "Internet predators");
179. Hicks, supra note 98 (reporting the challenger's pledge to be tougher than the incumbent on domestic violence and crimes against children);
180. Ryan Kim, This Time, Mullins Has a Challenger, S.F. CHRON., Feb. 22, 2002, at 4 (reporting the incumbent's boasts of toughness on gang violence, domestic violence, and other violent crime).
181. See, e.g., Jennifer Gonnerman, The People's Prosecutor, VILLAGE VOICE (N.Y.), Sept. 22-Sept. 28, 2004, at 40 (reporting that an obscure challenger upset an incumbent in Albany's primary by attacking New York's tough drug laws and the incumbent's aggressive prosecution of drug cases);
182. Smith, supra note 99 (noting the incumbent Travis County District Attorney's emphasis on juvenile diversion and crime prevention). Of course, it did not hurt that the Albany challenger was well Financed.
183. See Bibas, supra note 5, at 925-26, 956 (describing how people are drawn to and remember sensational but atypical criminal trials and news stories, while giving little weight to policies or statistics);
184. Shelley E. Taylor, The Availability Bias in Social Perception and Interaction, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 190, 192 (Daniel Kahneman et al. eds., 1982) (noting that because of "salience bias," people find distinctive stimuli more available and so rely on them disproportionately in making judgments).
185. An empirical study confirms that media coverage of prosecutorial scandals is one of the few factors that significantly reduces a prosecutor's chances of reelection. While there is also suggestive evidence that not losing a major case increases an incumbent's vote share, that finding was not large enough to be statistically significant. Gerard A. Rainville, Differing Incentives of Appointed and Elected Prosecutors and the Relationship Between Prosecutor Policy and Votes in Local Elections 91-92 (2002) (unpublished Ph.D. dissertation, American University, School of Public Affairs) (on file with American University Library).
186. See Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 163-64 (2004) (citing "increases in the number of police, the rising prison population, the waning crack epidemic and the legalization of abortion" as contributing to a decrease in crime in the 1990s).
187. See Bibas, supra note 7, at 2472-73 (noting that prosecutors may offer irresistible plea deals to dispose of cases that they are unlikely to win at trial).
188. See Rainville, supra note 104, at 92, 94 ("Perhaps the most central of prosecutor performance measures, conviction rates, failed to attain significance in the models.").
189. See Bibas, supra note 5, at 955-56 (proposing to compile these statistics to dispel common misconceptions about the criminal justice system).
190. See, e.g., Francis X. Clines, Death Penalty Is Suspended in Maryland, N.Y. TIMES, May 10, 2002, at A20 (reporting the Maryland Governor's moratorium on executions pending a study of racial disparities in capital punishment);
191. David Kocieniewski, Whitman and State Police: One Answer, Many Questions, N.Y. TIMES, Mar. 7, 1999, at NJ2 (reporting that the political furor that erupted in New Jersey over racial profiling led the governor to fire the state police superintendent).
192. Wright & Miller, supra note 15, at 61-62, 115.
193. See Gonnerman, supra note 102 (describing David Soares's campaign success as based solely on his argument that the incumbent did not support reform of harsh drug laws).
194. See Jonathan P. Hicks, Steady Work, If You Can Get It, N.Y. TIMES, Apr. 17, 2005, at 33 (explaining that no New York City district attorney has lost a reelection battle in the last fifty years, in part because district attorneys enjoy many opportunities to stage dramatic press conferences announcing arrests or indictments).
195. Id.
196. See Roy B. Flemming, The Political Styles and Organizational Strategies of American Prosecutors: Examples from Nine Courthouse Communities, 12 LAW & POL'Y 25, 28 (1990) (noting an example of a challenger who won a narrow victory at considerable personal expense);
197. Gonnerman, supra note 102 (reporting that money from billionaire George Soros's drug-legalization group helped fund the Albany challenger's successful campaign).
198. The empirical evidence is inconclusive as to how well these measures work in other contexts. One study, for example, found that state legislative term limits decreased state legislatures' professionalism, institutional memory, and innovation, in part because their legislative sessions and time horizons may be too short. THAD KOUSSER, TERM LIMITS AND THE DISMANTLING OF STATE LEGISLATIVE PROFESSIONALISM 203-13 (2005).
199. Lengthening each electoral term could mitigate these problems. Another study found that contribution limits reduce incumbents' margins of victory and increase the chances that they will decide not to run for reelection. Thomas Stratmann & Francisco J. Aparicio-Castillo, Competition Policy for Elections: Do Campaign Contribution Limits Matter? 127 PUB. CHOICE 177, 194, 199 (2006).
200. Laws modeled on the Freedom of Information Act, 5 U.S.C. § 552 (2006), or the Government in the Sunshine Act, 5 U.S.C. § 552b, could increase public scrutiny. Such laws might not do much, however, as prosecutors would have to redact much to protect witnesses and mask private details.
201. For example, eBay successfully uses such an algorithm to weight reputational feedback left by buyers and sellers. For literature that discusses the value of online feedback and ways to counteract unfair and discriminatory ratings, see, for example, Chrysanthos Dellarocas, Building Trust Online: The Design of Robust Reputation Reporting Mechanisms for Online Trading Communities, in SOCIAL AND ECONOMIC TRANSFORMATION IN THE DIGITAL ERA 95 (Georgios Doukidis et al. eds., 2004);
202. Chrysanthos Dellarocas, The Digitization of Word of Mouth: Promise and Challenges of Online Feedback Mechanisms, 49 MGMT. SCI. 1407 (2003);
203. Chrysanthos Dellarocas, Immunizing Online Reputation Reporting Systems Against Unfair Ratings and Discriminatory Behavior, in PROCEEDINGS OF THE 2ND ACM CONFERENCE ON ELECTRONIC COMMERCE 150 (2000);
204. Chrysanthos Dellarocas, Reputation Mechanism Design in Online Trading Environments with Pure Moral Hazard, 16 INFO. SYS. RES. 209 (2005);
205. Cynthia G. McDonald & V. Carlos Slawson, Jr., Reputation in an Internet Auction Market, 40 ECON. INQUIRY 633 (2002).
206. See Bibas, supra note 5, at 959-60 (discussing the potential benefits and limits of using citizen advocates as a way to include the public in criminal justice decisions).
207. See id. In this respect, we could do far better than the much-ballyhooed community-prosecution movement, which seeks to work more closely with local police as well as public and private organizations to prevent crime and serve other community needs. In practice, community prosecution has neither made prosecutors more accountable to ordinary citizens nor aligned prosecutors' interests with the community's interest.
208. See Brian Forst, Prosecutors Discover the Community, 84 JUDICATURE 135, 135-36, 141 (2000) (discussing how community- prosecution programs have failed to improve prosecution or advance the public interest by making prosecutors more connected and sensitive to the cultures and needs of the community).
209. See, e.g., Clines, supra note 109;
210. David Kocieniewski, Amid Pomp, McGreevey Signs Racial-Profiling Bill, NY. TIMES, Mar. 15, 2003, at B5 (reporting that the New Jersey Governor signed a bill prohibiting racial profiling in response to public outcry after state troopers wounded three unarmed black and Hispanic men during a traffic stop).
211. See Jan Hoffman, Prosecutor in Bronx, Under Fire, Softens Stand Against Executions, N.Y. TIMES, Mar. 20, 1996, at A1 (noting that voters had reelected the Bronx District Attorney despite his proclaimed opposition to the death penalty and that he remained generally opposed to it despite public criticism);
212. Dean E. Murphy, Killing of Officer Stirs Death Penalty Debate, N.Y. TIMES, June 12, 2004, at A7 (reporting that "[o]pinion polls show that San Franciscans overwhelmingly oppose the death penalty, and that in her winning campaign for district attorney last fall, Kamala D. Harris made no secret of her strong opposition as well," and that despite furor over the killing of a San Francisco police officer, seventy percent of poll respondents supported her refusal to seek the death penalty in that case).
213. See Bibas, supra note 5, at 927-29 (describing the results of studies that found that, when given concrete scenarios, laymen prefer sentences as low as or lower than those prescribed by statute or imposed by judges).
214. See supra text accompanying notes 110-111.
215. Bibas, supra note 5, at 923-24.
216. See PEGGY M. TOBOLOWSKY, CRIME VICTIM RIGHTS AND REMEDIES 36-39 (2001) (surveying various statistical studies of victim notification);
217. Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse, and Apology into Criminal Procedure, 114 YALE L.J. 85, 136-37 (2004) (noting that while many victims report wanting more information about their cases, many never have the opportunity to discuss their case with prosecutors or receive information about their rights).
218. Bibas, supra note 5, at 930;
219. Bibas & Bierschbach, supra note 125, at 99-100.
220. For development of these points at greater length, see Bibas, supra note 5, at 963.
221. Id. at 954-55.
222. Cf. JEANNINE BELL, POLICING HATRED 128-29 (2002) (describing how "seeing victims' pain in its entirety ⋯ changed the officers' worldview" to one of empathy with victims and showing how office culture fostered conversion).
223. See Bibas & Bierschbach, supra note 125, at 136-39 (collecting empirical evidence on victim's desires);
224. Edna Erez, Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings, 40 CRIM. I., BULL. 483, 491-93 ("[R]esearch suggests that victims' interests or concerns relative to proceedings are not tantamount to imposing a severe sentence, but pertain to the court addressing a broad range of issues⋯.").
225. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY 149-58 (1990) (reporting that victim's race, sex, and socioeconomic status all significantly affect the likelihood that the defendant will be sentenced to death, but positing that victim's sex is a proxy for women's greater physical vulnerability);
226. RANDALL KENNEDY, RACE, CRIME, AND THE LAW 69-75 (1997) (discussing how criminal justice underprotects black victims);
227. David C. Baldus et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999), 81 NEB. L. REV. 486, 608-23, 619 n. 279 (2002) (finding a statistically significant effect of victim's socioeconomic status on the imposition of the death penalty in Nebraska and attributing this effect to victims' families' ability to lobby prosecutors and deliver articulate victim-impact statements);
228. David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1658-60, 1715 & n. 144 (1998) (surveying evidence that killers of white victims are more likely to be charged with capital crimes and sentenced to death, and reporting evidence from Philadelphia that killers of low-socioeconomic-status victims are significantly less likely to receive the death penalty as a result of both prosecutorial and jury decisions);
229. Norbert L. Kerr, Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors' Verdicts, 4 PERSONALITY & SOC. PSYCHOL. BULL. 479, 480-81 (1978) (finding that mock jurors were more likely to convict defendants whose victims are attractive).
230. But see Ronald Mazzella & Alan Feingold, The Effects of Physical Attractiveness, Race, Socioeconomic Status, and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-Analysis, 24 J. APPLIED SOC. PSYCHOL. 1315, 1325, 1327, 1330 tb1.5 (1994) (meta-analyzing previous research and finding that victims' physical attractiveness and socioeconomic status do not significantly affect jurors' judgments, though victims' sex does and victims' race has a small effect on punishment).
231. See Bibas & Bierschbach, supra note 125, at 138 (collecting empirical evidence that victims' rights laws have this effect).
232. See Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. REV. 1449, 1451 (2005) (discussing the "silencing phenomenon" and its "systematic implications for the integrity of the justice process").
233. See, e.g., Ian Berry, Waltz Prosecutor Called Tough, but Fair, CHATTANOOGA TIMES FREE PRESS, Sept. 19, 2005, at B1;
234. Dan Eggen, Second-in-Command at Justice to Depart, WASH. POST, Apr. 21, 2005, at A21 ("[Deputy Attorney General] Comey earned frequent praise from colleagues, and even some foes, as a tough but fair prosecutor⋯.");
235. Kirk Makin, Morin Informant Named Dangerous Offender, GLOBE & MAIL (Can.), Oct. 4, 2007, at A7 (describing a Crown counsel "respected by the defence bar for being tough, but fair");
236. Shannon McCaffrey, Prosecutor Known as Tough but Fair Takes Lead at Justice, PHILA. INQUIRER, Dec. 12, 2003, at A21 (noting that not only did defense lawyers praise James Comey "as a tough but fair prosecutor's prosecutor," but even a mob assassin whom he was trying to imprison slipped him a note at trial that read, "'You're a class act⋯. No one deserves that [lawyer-of-the-year] award more than you do'");
237. David Schaper, Morning Edition: Senate Panel Sets Deadline on Corruption Case (NPR radio broadcast Apr. 13, 2007), available at http://www.npr.org/templates/story/story/ph?storyid=9564617 (noting Milwaukee U.S. Attorney Steve Biskupic's reputation as tough but fair).
238. See LIND & TYLER, supra note 86, at 76-81, 106, 208, 215;
239. TYLER, supra note 85, at 94-108.
240. See Bibas, supra note 7, at 2470-76 (detailing the agency costs of prosecutors' incentives and pressures);
241. see also JAMES EISENSTEIN & HERBERT JACOB, FELONY JUSTICE 154 (1991) (reporting that trial prosecutors in three jurisdictions studied were motivated not to lose cases, particularly jury trials).
242. See Bibas, supra note 7, at 2541-42.
243. See JOHN P. KOTTER & JAMES L. HESKETT, CORPORATE CULTURE AND PERFORMANCE 32-33 exhibit 3.1, 47-55, 49 exhibit 4.2 (1992) (reporting empirical evidence that twelve higher-performing firms consistently valued customers, stockholders, and employees more than ten comparable lower-performing firms in matching industries, and reporting causal evidence that managers who value leadership and care greatly about serving stakeholders lead their firms to adapt to changing needs);
244. see also THOMAS J. PETERS & ROBERT H. WATERMAN, JR., IN SEARCH OF EXCELLENCE 156-99, 319 (1982) (stressing that a strong focus on serving customers makes firms adapt to serve their needs).
245. KOTTER & HESKETT, supra note 138, at 51 exhibit 4.3.
246. See id. at 50 (italicizing this point for emphasis).
247. Id. at 70-72, 73 exhibit 6.3.
248. Id. at 92-93.
249. See RALPH H. KILMANN, MANAGING BEYOND THE QUICKV FIX 49-72 (1989);
250. EDGAR H. SCHEIN, ORGANIZATIONAL CULTURE AND LEADERSHIP 278-79, 306-07 (1985).
251. SCHEIN, supranote 143, at 281-82.
252. Id. at 323-24.
253. Id. at 321-22. One empirical study found that of eleven corporate heads who successfully led major cultural change at high-performing corporations, five were recruited directly from outside. Two had come from outside the firm earlier in their careers after substantial careers elsewhere. The remaining four had unconventional inside career paths. Not one was a traditional insider. See KOTTER & HESKETT, supra note 138, at 89-92 (noting, however, that complete outsiders may lack "credibility, relationships, and [the] power base" needed to turn around extremely large companies).
254. KOTTER & HESKETT, supra note 138, at 104-05, 110.
255. See PETER F. NARDULLI ET AL., THE TENOR OF JUSTICE 128 (1988) (explaining that courthouse culture and values are so deeply embedded that "[t]ransient interlopers ensconced in powerful positions for short periods of time ⋯ are normally little more than blips in a court community's history").
256. See Flemming, supra note 114, at 28-33 (describing three examples in which electoral challengers succeeded in enacting reforms);
257. cf. id. at 38 (noting that incumbent's electoral power and political clout play large roles in inducing underlings to follow their leader).
258. Politicians could take these same lessons to heart in appointive systems, making a point of hiring outsiders to clean house. See, e.g., John Kass, U.S. Attorney's Independence Pays Dividends, CHI. TRIB., Dec. 21, 2003, § 1, at 2 (reporting that an Illinois senator made a point of selecting Patrick Fitzgerald, an outsider, as U.S. Attorney, because his lack of political ties to anyone in Illinois freed him to pursue public-corruption cases).
259. JOHN P. ROTTER & DAN S. COHEN, THE HEART OF CHANGE 15-36 (2002);
260. KOT TER & HESKETT, supra note 138, at 94-96.
261. KOTTER & HESKETT, supra note 138, at 94-96.
262. SCHEIN, supra note 143, at 224-30.
263. Id. at 230-32.
264. Id. at 232-33;
265. see also ALFRED P. SLOAN, JR., MY YEARS WITH GENERAL MOTORS 433 (John McDonald & Catharine Stevens eds., 1964) (emphasizing the need to sell major proposals to the affected parts of a company);
266. JACK WELCH, JACK 393 (2001) (stressing the importance of a CEO's constant cheerleading and reiterating ideas and initiatives to persuade and lead subordinates).
267. SCHEIN, supra note 143, at 233-37.
268. Id. at 237-42.
269. See supra text accompanying note 91.
270. DeFrances, supra note 91, app.; Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 732 n. 91 (1996) (citing statutes from Alaska, Connecticut, Rhode Island, and Delaware).
271. NJ. STAT. ANN. § 2A:158-1 (West 1985);
272. DeFrances, supranote 91, app.; Misner, supra note 159, at 732 & n. 91.
273. See Richman, supra note 79, at 2062-64 (noting that when later attorneys general of Alaska allowed local discretion to increase to the point that the plea-bargaining ban decayed, line attorneys complained of "[in] sufficient policy guidance from above").
274. See Memorandum from John Ashcroft, U.S. Attorney Gen., to All Fed. Prosecutors (Sept. 22, 2003), available at http://www.usdoj.gov/opa/pr/ 2003/September/03-ag-516.htm (establishing uniform substantive and procedural standards limiting federal prosecutors' plea bargaining). It is unclear, however, how effective this memorandum has been.
275. See G. Jack King, Jr., NACDL Survey: USAOs Deny Ashcroft Memo Affecting Plea Bargaining, CHAMPION, Dec. 2003, at 6 (reporting, based on a telephone survey of United States Attorney's Offices, that the Ashcroft Memorandum had not changed local practices).
276. E.g., EISENSTEIN & JACOB, supra note 136, at 86;
277. Flemming, supra note 114, at 39, 40 tbl. 1, 45-46.
278. See, e.g., EISENSTEIN & JACOB, supra note 136, at 151 (giving the example of the Detroit prosecutor's office);
279. Flemming, supra note 114, at 41-42, 44 (discussing the effects of tighter control).
280. See, e.g., Flemming, supra note 114, at 44 (noting one county's aggressive screening);
281. Wright & Miller, supra note 15, at 61-82 (discussing the example of New Orleans).
282. See, e.g., Wright & Miller, supra note 15, at 61-82 (presenting empirical evidence that centralized screening units greatly reduced charge bargaining in New Orleans). This model of dividing up cases by stage is sometimes called horizontal prosecution, as opposed to vertical prosecution, in which the same prosecutor handles a case from intake through sentencing and appeal.
283. See, e.g., NARDULLI ET AL., supra note 148, at 190 (explaining that a system of vertical prosecution enabled line prosecutors to grant concessions and bargain away cases with almost no supervision). Rachel Barkow makes the same point, analogizing this prosecutorial structure to the separation of functions within administrative agencies. Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869 (2009) (advocating that charging, plea acceptance, and substantial-assistance determinations be made by separate pr secutors or panels of prosecutors).
284. See, e.g., Marc L. Miller & Ronald F. Wright, "The Wisdom We Have Lost": Sentencing Information and Its Uses, 58 STAN. L. REV. 361, 362-63 (2005) (noting that collecting and disseminating sentencing data can democratize the process, facilitating input from a broader array of actors and so improving policy);
285. Wright & Miller, supra note 15, at 65-66 (noting District Attorney Connick's maxim, "If you can't measure it, you can't manage it" and that data both facilitate supervision and keep line prosecutors mindful that supervisors monitor their actions).
286. See, e.g., PETER F. DRUCKER, THE PRACTICE OF MANAGEMENT 203 (1954) (stressing "that the organization structure [should] contain the least possible number of management levels, and forge the shortest possible chain of command");
287. KOTTER & HESKETT, supra note 138, at 99 (reporting that decentralization and cutting bureaucracy were important elements in ten cases of successful cultural change);
288. WELCH, supra note 155, at 383-84 (noting that "[b]ureaucracy strangles" whereas "[i]nformality liberates" and encourages information and ideas to flow freely to the top).
289. SLOAN, supra note 155, at 429-35;
290. see also PETER F. DRUCKER, CONCEPT OF THE CORPORATION 115-29 (Transaction Publishers 1993) (1946) (holding up General Motors as a model of decentralization blended with central oversight).
291. See JANET C. LOWE, JACK WELCH SPEAKS 119-22 (1998).
292. See Elliott Jaques, In Praise of Hierarchy, in MANAGING PEOPLE AND ORGANIZATIONS 382, 385-92 (John J. Gabarro ed., 1992) (explaining that hierarchical management adds value, promotes accountability, and reflects broader perspective of those with longer time horizons who confront more complex problems, and reporting that for all but the largest corporations, seven levels of hierarchy is enough).
293. See, e.g., Flemming, supra note 114, at 46.
294. See David Boerner & Roxanne Lieb, Sentencing Reform in the Other Washington, 28 CRIME & JUST. 71, 122 (2001) (rejecting prosecutorial guidelines and explaining that "[t]he myriad factors that influence a judgment related to likely conviction of a particular crime or crimes, to say nothing of their relative weights, involves polycentric decision making not readily susceptible to judicial review" and that "there is no meaningful external standard against which to measure the subjective discretionary decision");
295. see also LIEF H. CARTER, THE LIMITS OF ORDER 11-14, 113-50 (1974) (suggesting that achieving consistency through internal rules and procedures is impossible, based on both theoretical literature and case studies of specific kinds of organizations, including a California prosecutor's office);
296. ARTHUR ROSETT & DONALD R. CRESSEY, JUSTICE BY CONSENT 161-72 (1976) (arguing that discretion is inevitable and cannot be confined by judicial procedural rules);
297. Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 AM. J. CRIM. L. 197, 255 (1988) (endorsing Carter's argument "that prosecutorial decision making is inherently uncontrollable by preordained rules and guidelines");
298. Kenneth J. Melilli, Prosecutorial Discretion in an Adversary System, 1992 BYU L. REV. 669, 674-75 (arguing that there is a category of factors on which prosecutors must rely that do not "lend themselves to ⋯ systematization" and that "this type of [case-specific] discretion is not only inevitable, but also desirable").
299. Ronald F. Wright, Sentencing Commissions as Provocateurs of Prosecutorial Self-Regulation, 105 COLUM. L. REV. 1010, 1031 (2005).
300. Id.
301. See id. at 1031-32 (describing the guidelines drafters' use of judicial sentencing guidelines as a model in order to develop guidelines that would be more consistent across counties, as the court directed);
302. see also Ronald F. Wright, Prosecutorial Guidelines and the New Terrain in New Jersey, 109 PENN. ST. L. REV. 1087, 1093-97 (2005) (tracking the escalating demands of the New Jersey courts for stricter prosecutorial guidelines and pointing out the New Jersey Supreme Court's decree that legal restrictions on the sentencing discretion of judges should apply equally to prosecutors).
303. See Wright, supra note 176, at 1090-92 (pointing out the New Jersey courts' role in creating a pre-trial intervention program);
304. Wright, supra note 174, at 1034 (documenting the gradual expansion of prosecutorial guidelines to cover more subjects).
305. Wright, supra note 174, at 1034;
306. see also Wright, supra note 176, at 1098 (noting that the legislature "took the hint from the supreme court").
307. Wright, supra note 176, at 1097;
308. Wright, supra note 174, at 1034.
309. See Wright & Miller, supra note 15, at 61-66 (chronicling the steps that Connick took to direct more resources and expertise to reducing the use of plea bargains and to closely monitoring the reduction).
310. See FLA. PROSECUTING ATTORNEYS' ASS'N, STATEMENT CONCERNING IMPLEMENTING OF HABITUAL DRUG LAWS (1993),
311. as reprinted in MILLER & WRIGHT, supra note 41, at 937-38 (setting forth nonbinding criteria to guide state attorneys in enforcing Florida's habitual-offender laws).
312. See Teresa White Cams & John Kruse, A Re-Evaluation of Alaska's Plea Bargaining Ban, 8 ALASKA L. REV. 27, 32-40 (1991) (observing the profound impact of the Alaska Attorney General's 1975 ban on plea bargaining).
313. Cf. Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCIA L. REV. 1, 14 (1971) (noting "a number of well-known instances where prosecutors" seemed to adopt nonprosecution policies).
314. See generally Podgor, supra note 33 (discussing internal policies, violations of these policies, and efforts to improve compliance).
315. See DAVIS, supra note 6, at 65-68, 202 (applauding the fairness, transparency, and efficiency of administrative rulemaking);
316. cf. Charles P. Bubany & Frank F. Skillern, Taming the Dragon: An Administrative Law For Prosecutorial Decision Making, 13 AM. CRIM. L. REV. 473, 490-91, 496-99 (1976) (recommending that prosecutors' offices adopt rules and guidelines that turn on objective criteria to guide discretionary decisions).
317. See Thomas O. McGarity, Some Thoughts on " Deossifying" the Rulemaking Process, 41 DUKE LJ. 1385, 1396-1436 (1992) (discussing how even supposedly informal notice-and-comment rulemaking has become cumbersome, discouraging agencies from promulgating new rules and revisiting old rules).
318. See Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. CHI. L. REV. 246, 292-96 (1980) (discussing the virtues and drawbacks of prosecutorial guidelines that require prosecutors to offer written reasons subject to review for their discretionary decisions to charge).
319. Id. at 294.
320. See id. at 298 ("It is important⋯ to recognize that there are several different types of rules, which differ in their utility as guiding and structuring mechanisms.").
321. See Richman, supra note 79, at 2062-73 (identifying Alaska and New Jersey as successful examples and to the federal system as a possibly less successful example).
322. See Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2125-29, 2148-49 (1998) (describing how experienced defense lawyers already exert informal influence, at least in white-collar criminal cases, and proposing more formal review processes);
323. cf. MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE §§320.1, 350.3 (1975) (proposing that prosecutors take part in precharge screening conferences with an appeals process and promulgate plea bargaining guidelines and regulations "designed to afford similarly situated defendants equal opportunities for plea discussions and plea agreements").
324. See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 FORDHAM URB. L.J. 347, 440-502 (1999) (describing the workings of the U.S. Department of Justice's centralized Capital Case Review Committee and its internal procedures for authorizing federal prosecutors to seek the death penalty).
325. See LINDA DRAZGA MAXFIELD & JOHN H. KRAMER, U.S. SENTENCING COMM'N, SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 7-8, 24 exhibit 2, 25 exhibit 3 (1998) (finding, in a mail survey, that 44.4% of districts reported that they consistently followed their policies, while 33.3% showed no consistency).
326. See CARTER, supra note 173, at 119-23 (describing widespread noncompliance with a 150-page office manual in one county, in part because many policies were unclear, in part because the manual did not address many substantive questions, and in part because superiors did very little to detect and penalize violations).
327. See Misner, supra note 159, at 767-69 (recommending that prosecutors create a detailed local plan outlining their enforcement strategy, thus empowering voters to review and compare the prosecutorial strategies of the competing candidates).
328. See WELCH, supra note 155, at 383 ("Getting the right people in the right jobs is a lot more important than developing a strategy.").
329. SCHEIN, supra note 143, at 235.
330. See KOTTER & HESKETT, supra note 138, at 99 (reporting the importance of replacing managers and changing selection criteria in ten case studies of successful cultural change).
331. The empirical management and organizational literature on person-organization fit is vast. See, e.g., Geoffrey N. Abbott et al., Linking Values and Organizational Commitment: A Correlational and Experimental Investigation in Two Organizations, 78 J. OCCUPATIONAL & ORGANIZATIONAL PSYCHOL. 531, 545, 549 (2005) (noting that employees whose values align with their employer's perceived values feel a greater commitment to the organization, which is particularly likely if the organization is courteous, cooperative, creative, and open);
332. David E. Bowen et al., Hiring for the Organization, Not the Job, 5 ACAD. MGMT. EXECUTIVE 35, 36, 45-46 (1991) (emphasizing the importance of hiring the right employees and the benefits of hiring employees who fit the characteristics of a particular organization, which include better employee attitudes, performance, and organizational culture);
333. Min-Ping Huang et al., Fitting in Organizational Values: T e Mediating Role of Person-Organization Fit Between CEO Charismatic Leadership and Employee Outcomes, 26 INT'L J. MANPOWER 35, 44-46 (2005) (finding that both charismatic leadership and "person-organization values fit" improve work effort, satisfaction with leaders, and organizational commitment);
334. Charles A. O'Reilly III et al., People and Organizational Culture: A Profile Comparison Approach to Assessing Person-Organization Fit, 34 ACAD. MGMT. J. 487, 509-12 (1991) (reporting that person-organization fit is associated with job satisfaction, organizational commitment, and job turnover);
335. Charles D. Stevens & Ronald A. Ash, Selecting Employees for Fit: Personality and Preferred Managerial Style, 13 J. MANAGERIAL ISSUES 500, 510-11 (2001) (showing that an employee's agreeableness and openness to experience correlate with his amenability to participatory management).
336. See, e.g., CARTER, supra note 173, at 135-38 (describing in detail a district attorney's office which had no real training program and little clear hiring criteria apart from winnowing out bearded and physically repulsive candidates).
337. See, e.g., Flemming, supra note 114, at 29 (describing a prosecutor who "swept out the part-time staff [and] handpicked new, aggressive assistants with crusader-like attitudes").
338. See, e.g., id. at 43 (describing an office that altered its hiring practices to target newly minted attorneys instead of the skilled and experienced attorneys that it had targeted in the past).
339. See, e.g., id. at 45 (depicting a prosecutor who recruited attorneys who shared his "conservative philosophy" and let them work without extensive oversight).
340. See, e.g., id. at 38 (noting that district attorneys often chose close friends as their deputies because of their loyalty).
341. See, e.g., Wright & Miller, supra note 15, at 62-63 (highlighting the New Orleans District Attorney's Office, which gave experienced attorneys responsibility for screening and evaluating cases).
342. See Flemming, supra note 114, at 42-43.
343. See, e.g., id. at 43 (pointing to a mass exodus in the wake of an administrative change).
344. At least one prominent federal prosecutor's office already has such a requirement. See Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 FORDHAM L. REV. 917, 964 (1999) (reporting that the chief of the criminal division of the U.S. Attorney's Office for the Southern District of New York must have experience as a defense lawyer).
345. See George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. REV. 98, 110-19 (1975) (reporting empirical evidence that many prosecutors, particularly more experienced prosecutors, manifest "conviction psychology" and presume guilt, and that this psychology "may cause the prosecutor to ignore his quasi-judicial role");
346. Fisher, supra, note 173, at 206 (noting that "conviction psychology" is a more powerful force than the pressure to be fair);
347. Melilli, supra note 173, at 690 (noting that "conviction psychology" makes it more difficult for prosecutors to protect innocent defendants).
348. See Yaroshefsky, supra note 207, at 964 n. 234 (quoting one former federal prosecutor as stating, "Career prosecutors are inevitably cynical about the human race⋯. Someone who has been a defense lawyer gets to see the person and is aware of the complexities and motivations, the ambiguities of acts and sees things from a different tactical perspective.").
349. See, e.g., Todd Lochner, Strategic Behavior and Prosecutorial Agenda Setting in United States Attorneys' Offices: The Role of U.S. Attorneys and Their Assistants, 23 JUST. SYS. J. 271, 282, 285-88 (2002) (finding an overall increase in the number of prosecutors who choose to work in a U.S. Attorney's Office as a career, and noting that career prosecutors are less motivated, take "easier" cases, and often resist changes within the prosecutor's office).
350. See id. at 281-83 (noting that the median tenure of Assistant U.S. Attorneys has increased from three to eight years and that the annual turnover rate has dropped from six to two percent, and describing careerism as "[t]he number-one problem facing the federal prosecutorial system today inasmuch as this careerism made it more difficult for U.S. attorneys or the [D]epartment [of Justice] to set prosecutorial agendas"). It is not clear whether this problem exists at the state level, as salaries and benefits are not as generous there. Federal civil-service protections also contribute to the problem.
351. See id. at 283-84.
352. See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 456 (1992);
353. Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 446-47 (1992).
354. See Gershman, supra note 212, at 457-58 (suggesting that prosecutors and public defenders swap places for one year). Because conflicts of interest might pose a problem, these temporary defenders would, ideally, defend cases in a nearby jurisdiction or at a different level (state or federal). Failing that, perhaps ethics rules could allow them to defend crimes of a sort different from those handled by their departments.
355. See EDWARD E. LAWLER III, STRATEGIC PAY 207 (1990) (noting that entrepreneurial organizations put much of their compensation at risk with programs such as pay-for-performance schemes, and that Apple Computer has no retirement plan because it does not want to attract security-oriented employees).
356. Cf. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1189 (1991) (finding that mandatory rotation is central to an effective jury system and that some of the Founding Fathers also supported mandatory rotation for legislators).
357. See, e.g., LOWE, supra note 170, at 83-86 (describing the system of open communication and information flow at General Electric).
358. See, e.g., SLOAN, supra note 155, at 433-34 (describing the advantages of the General Motors system, which requires division managers to sell new ideas to central management).
359. See, e.g., WELCH, supra note 155, at 393-94 (describing anonymous online surveys at General Electric).
360. See, e.g., SCHEIN, supra note 143, at 240-41 (contrasting two different office layouts that foster communication and privacy, respectively, and noting that layouts often reveal how leaders manage relationships, acquire information, and carry out tasks);
361. Robert J. Grossman, Offices vs. Open Space, HR MAG., Sept. 2002, at 36, 38 (reporting that each of CommonHealth's buildings has an atrium with a kitchen, bistro-style cafe-teria, coffee bar, or similar area to encourage workers to congregate, interact informally, and generate ideas collaboratively).
362. See, e.g., CARTER, supranote 173, at 129-30.
363. See Melanie D. Wilson, Prosecutors "Doing Justice" Through Osmosis - Reminders to Encourage a Culture of Cooperation, 45 AM. CRIM. L. REV. 67, 106 (2008) (noting an "inexcusable ⋯ dearth of information, communication and conversation" about how to use cooperating witnesses effectively within the U.S. Department of Justice).
364. See, e.g., CARTER, supra note 173, at 49-56 (describing the conduct of a "formalist" manager who struggles to build social relationships with fellow attorneys and to address the human aspects of working as a prosecutor).
365. See, e.g., NARDULLI ET AL., supra note 148, at 142-43 (describing the difficulty of collecting and distributing information in a decentralized court community where line prosecutors and head prosecutors have separate office areas);
366. cf. CARTER, supra note 173, at 53 (discussing the importance of lunchtime conversations about office problems and how a supervisor who regularly ate lunch at his desk isolated himself from this source of information).
367. See sources cited supra note 151 and accompanying text (discussing how effective managers marshal data to demonstrate the need for reforms).
368. See Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125, 181-91 (2008) (noting that information technology can greatly improve both internal transparency - information-sharing within prosecutors' offices - and external transparency - opening prosecutorial performance to scrutiny and criticism by litigants and legislatures).
369. See WELCH, supra note 155, at 158-67, 387-88 ("From my first days, I thought [ranking] was the key to building a great organization⋯. We used it relentlessly to push leaders to continually upgrade their teams. Year after year, forcing managers to weed out their worst performers was the best antidote for bureaucracy.");
370. see also id. at 389 (asserting the importance of firing employees who resisted the new company's culture after a merger).
371. See id. at 162 ("Our [ranking system] works because we spent over a decade building a performance culture with candid feedback at every level.").
372. See LAWLER, supra note 214, at 25 (describing poor performers' dissatisfaction with pay as a desirable catalyst of turnover).
373. See supra notes 116-118 and accompanying text.
374. See, e.g., SLOAN, supra note 155, at 407-28 (discussing the details of the General Motors bonus plan);
375. WELCH, supra note 155, at 159-60 (discussing how General Electric's reward system of raises, stock options, and promotions aids retention of top performers and encourages average performers to improve).
376. See Meares, supra note 79, at 873-75 (predicting that such a charging practice would ensure that prosecutors proceed only with the offenses that they are likely to be able to prove at trial).
377. See id. at 901-02 (positing that a system that "ties financial rewards to the standards of [ethical] conduct" will both discipline prosecutors and make their supervisors more aware of improper behavior).
378. Cf. id. at 884-87, 916-17 (noting the danger that prosecutors could undercharge to earn rewards but suggesting that other mechanisms could counteract these dangers and that financial rewards could nevertheless work).
379. See Steven Kerr, On the Folly of Rewarding A, While Hoping for B, 18 ACAD. MGMT. J. 769, 775 (1975) (citing sports and business examples of coaches or managers who reward quantifiable achievements but neglect to reward intangibles);
380. see also WELCH, supra note 155, at 387 (describing a General Electric sales contest that produced enormous sales but no profit margin: "That's the simplest example of a universal problem: What you measure is what you get - what you reward is what you get").
381. Cf. MICHAEL LIPSKY, STREET-L EVEL BUREAUCRACY 167, 233 n. 10 (1980) (noting that when incentive pay rewarded Washington, D.C., police officers for reducing crime, officers manipulated statistics by misreporting burglaries as larcenies or underreporting the dollar values involved).
382. See LAWLER, supra note 214, at 80-81 (suggesting that peer-awarded bonus schemes are promising and noting that Xerox and Wells Fargo, for example, let employees give other employees twenty-five or thirty-five dollar awards for excellence or helpfulness).
383. See Peter A. Bamberger et al., Peer Assessment, Individual Performance, and Contribution to Group Processes: The Impact of Rater Anonymity, 30 GROUP & ORG. MGMT. 344, 365, 367-68 (2005) (reporting empirical evidence that peer evaluation, particularly nonanonymous peer evaluation, improved managers' ratings of subordinates' performance and attitudes);
384. Lior Jacob Strahilevitz, "How's My Driving" for Everyone (and Everything?), 81 N.Y.U. L. REV. 1699 (2006) (discussing how decentralized peer evaluations can develop norms over time, resulting in assessments that are more subtle, con-textualized, and accurate than what police can achieve with spot checks for compliance with a handful of clear rules).
385. See LAWLER, supra note 214, at 82-83 (explaining that bonuses reward and encourage current performance, while base-pay raises may reward past performers even if they are no longer performing well).
386. See id. at 84 (noting the importance of evaluating group and team performance and giving special awards for exceptional individual performance);
387. id. at 125 (noting the symbolic and communicative benefits of paying everyone for the performance of the organization as a whole);
388. JAMES W. FAIRFIELD-SONN, CORPORATE CULTURE AND THE QUALITY ORGANIZATION 155-56 (2001) (reporting that quality organizations tend to focus on building and rewarding successful cultures by rewarding customer service that achieves long-term goals, rewarding group efforts, and using public, positive recognition to spur continual improvement).