Promoting democracy in prosecution

Washington Law Review

Volumn 86, Issue 1, 2011, Pages 69-124

  Gold, Russell M ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 79952321764     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (468)

1. HEATHER C. WEST, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISONERS AT YEAREND 2009-ADVANCE COUNTS 6 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/ pdf/py09ac.pdf (state prisons);
2. TODD D. MINTON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, JAIL INMATES AT MIDYEAR 2009-STATISTICAL TABLES 4 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/jim09st.pdf (local jails).
3. A recent study by the New York City Department of Correction calculated the average annual cost for a New York inmate as $62,595.
4. Marsha Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. REV. L. & SOC. CHANGE 235, 244 (2009).
5. David Simpson, National Report on Prisons: Behind Bars: In Georgia, for Every $1 Spent on Higher Education, 50 Cents is Spent on Incarceration, ATLANTA JOURNAL-CONSTITUTION, Feb. 29, 2008, at A1 (citing JENIFER WARREN, PEW CTR. ON THE STATES, PUB. SAFETY PERFORMANCE PROJECT, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 11, 30 (2008), available at http://www.pewcenteronthestates. org/uploadedFiles/8015PCTS-Prison08-FINAL-2-1-1-FORWEB.pdf).
6. WARREN, supra note 3, at 11, 30.
7. Id. at 27; MINTON, supra note 1, at 4.
8. This Article relies in part on Ronald Dworkin's "more sophisticated version of the majoritarian conception" of democracy, which provides that a viewpoint cannot reflect majority will unless the people are well informed and have had opportunity to deliberate on the issue. RONALD DWORKIN, SOVEREIGN VIRTUE 357 (2000).
9. In last year's State of the State Address, California Governor Arnold Schwarzenegger criticized his state for spending too much on incarceration and too little on education, proposing a constitutional amendment to prevent this relative allocation from recurring. Governor Arnold Schwarzenegger, State of the State Address (Jan. 6, 2010), available at http://www.govspeech.org/ wwwdata/resources/files/19694d.pdf. Governor Schwarzenegger explained: The priorities have become out of whack over the years. I mean, think about it. 30 years ago 10 percent of the general fund went to higher education and three percent went to prisons. Today, almost 11 percent goes to prisons and only 7.5 percent goes to higher education. Spending 45 percent more on prisons than universities is no way to proceed into the future. What does it say about our state? What does it say about any state that focuses more on prison uniforms than on caps and gowns? It simply is not healthy.
10. Id.
11. This Article's mandatory cost disclosure proposal may appear to blame prosecutors alone for what this Article hypothesizes is an over-prosecution of nonviolent crime. While prosecutors are responsible to some extent, they are by no means solely responsible. State legislatures wove a broad net, and law enforcement officials exercise great control over how to cast that net before prosecutors even enter the picture. Nonetheless, because prosecutors have the last clear chance to stop the criminal justice mechanism, this proposal seeks to reinvigorate the voice of the people in prosecutorial decision-making.
12. See Ronald F. Wright, How Prosecutor Elections Fail Us, 6 OHIO ST. J. CRIM. L. 581, 582-83 (2009) ("[T]he reality of prosecutor elections is not so encouraging. ⋯ Uncontested elections shortcircuit the opportunities for voters to learn about the incumbent's performance in office and to make an informed judgment about the quality of criminal enforcement in their district⋯ . Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.");
13. see also KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 207-08 (2d prtg. 1970).
14. Wright, supra note 9, at 582-83.
15. Id.
16. Bibas S., Prosecutorial regulation versus prosecutorial accountability, 157, U. PA. L. REV.959, 961, (2009). "District attorneys' electoral contests are rarely measured assessments of a prosecutor's overall performance. At best, campaign issues boil down to boasts about conviction rates, a few high-profile cases, and maybe a scandal.
17. Citing Stephanos Bibas, Essay, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 923-31 (2006)
18. DWORKIN, supra note 6, at 357.
19. See Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 LAW & SOC. INQUIRY 387, 391, 410-11 (2008);
20. see also GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE 17-18 (Daniel Heller-Roazen trans., 1998).
21. Sarat & Clarke, supra note 13, at 391, 410-11.
22. see also AGAMBEN, supra note 13, at 17-18.
23. Carol S. Steiker, Passing the Buck on Mercy, WASH. POST, Sept. 7, 2008, at B7 ("Our Founding Fathers understood the importance of checks and balances, but no one is checking or balancing the decisions causing our prisons to overflow.").
24. See, e.g., DAVIS, supra note 9, at 190.
25. Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 895-906 (2009).
26. Darryl K. Brown, Cost-Benefit Analysis in Criminal Law, 92 CALIF. L. REV. 323, 371 (2004);
27. Adam M. Gershowitz, An Informational Approach to the Mass Imprisonment Problem, 40 ARIZ. ST. L.J. 47, 65-72 (2008);
28. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521, 1560-72 (1981).
29. See Wright, supra note 9, at 606-08.
30. see also Bibas, supra note 11, at 961, 979-96.
31. See Bibas, supra note 11, at 961, 979-96.
32. Stephanos Bibas, The Need for Prosecutorial Discretion, 19 TEMP. POL. & CIV. RTS. L. REV. 369, 373 (2010) ("The first step, then, is to make discretion transparent⋯ . [That] mean[s] publishing better statistics about initial charges, final charges, recommended sentences, and reasons for charges, plea bargains, sentences, and related deals.").
33. Wright, supra note 9, at 582-83.
34. In some respects this proposal is similar to Bibas's because he too advocates greater information to stakeholders in the criminal process, Bibas, supra note 11, at 979-96, but this Article proposes a specific process for disclosing the relevant information. Moreover, this Article explores the economic efficiency created by greater flow of information and considers democratic theory implications of such a proposal. Lastly, it does not purport to dictate effective procedures for prosecutors' offices but allows each office to structure itself to respond to voters' preferences.
35. Law enforcement expenditures comprise a significant component of government spending on criminal law. Prosecutors may control much of law enforcement spending, and thus there may be good justifications to build such spending into a mandatory disclosure regime. But whether the portion of law enforcement spending due to prosecutorial decision-making can be feasibly separated from the rest of law enforcement spending and thereby checked in prosecutor elections is beyond the scope of this Article. For purposes of this Article, law enforcement spending is excluded from mandatory cost disclosures.
36. Although line prosecutors may be career people with greater loyalty to the office than to the lead prosecutor, line prosecutors nonetheless seem best served by adhering to processes that will help their bosses avoid hotly contested elections. First, having a lead prosecutor in a tough election battle might make for a less than ideal work environment. Second, lead prosecutors might fire line prosecutors who hurt their chances of reelection.
37. See Bibas, supra note 18, at 373-74;
38. William T. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 535 (2001) ("District attorneys are likely to seek to manage their offices in ways that win them public support. To some degree, line prosecutors will seek to do that too, because that is their bosses' goal, and they must satisfy their bosses in order to keep their jobs."). Moreover, each newly elected prosecutor brings the possibility of a personnel shake-up, particularly if this shake-up succeeds in focusing public attention on prosecutorial decision-making.
39. This proposal is limited to state and local prosecutors because the political check on federal prosecutors is weaker in that the people are further removed from the decision-makers. Yet, United States Attorneys are democratically accountable because they serve at the pleasure of the democratically elected president.
40. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984). There may be good reason, then, to apply the same mandatory disclosure regime to federal prosecutors. That topic, however, must be left for another day.
41. Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY 717, 728 (1996).
42. David D. Friedman, Making Sense of English Law Enforcement in the Eighteenth Century, 2 U. CHI. L. SCH. ROUNDTABLE 475, 475 (1995).
43. See id. at 476-78.
44. Misner, supra note 23, at 729.
45. Roger A. Fairfax, Jr., Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. DAVIS. L. REV. 411, 432-33 (2009)
46. cf. Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 AM. J. LEGAL HIST. 43, 43 (1995) (describing movement toward public prosecution in the nineteenth century, even though it was often rudimentary).
47. See Carolyn B. Ramsey, The Discretionary Power of "Public" Prosecutors in Historical Perspective, 39 AM. CRIM. L. REV. 1309, 1327-28 (2002).
48. Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 58 (1998);
49. Peggy Nicholson, The Public Outrage Phenomenon and Limits on Remedying the Effect of Implicit Racist Attitudes on Capital Charging Decisions, 18 VA. J. SOC. POL'Y & L. 133, 135 (2010).
50. William T. Pizzi, Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform, 54 OHIO ST. L.J. 1325, 1342 (1993). Pizzi describes the relationship between local control and aversion to centralized government in America: But prosecutorial discretion in the American legal system must be seen as part of a political tradition that is built on a preference for local control over political power and on an aversion to strong centralized governmental authority and power. There is no better example than our federal system in which each state retains the power to make its own criminal laws and even to determine its own system of criminal procedure, consistent with the U.S. Constitution. This aversion to strong centralized governmental power runs deep in the American political tradition. It is not an accident that in the United States, in strong contrast with European countries, something as important as education remains not a state matter, but a local matter, and different localities may adhere to quite different educational philosophies and objectives.
51. Id. (emphasis in original) (citations omitted).
52. Alexis de Tocqueville recognized that local government was more trusted because it was closer to the people, but he also supplied another reason for strong local government: "Local freedoms ⋯ constantly bring men closer to one another, despite the instincts that separate them, and force them to aid each other." ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 487 (Harvey C. Mansfield & Delba Winthrop eds. & transs., Univ. of Chicago Press 2000) (1835). [T]he same individuals are always in contact and they are in a way forced to know each other and to take pleasure in each other," and in this respect the familiarity of local government helps people realize that it is in their own self-interest to withdraw from themselves and engage in the broader community. Id. De Tocqueville referred to this notion as "self-interest well understood.
53. Id. at 501. Whether the mistrust of large central government or the desire to structure self-interest and individualism into a healthy tension was the origin of their design, the framers vested authority in local governments.
54. Local election of prosecutors makes particularly good sense from a Tocquevillian perspective because locally elected prosecutors are most familiar with the constituencies they serve.
55. See DE TOCQUEVILLE, supra note 30, at 501. Further, a small local constituency is most familiar with local offenses and offenders and has the greatest self-interest in prosecutorial decisions. This self-interest should engage the people to exercise their check over the use of prosecutorial power at the voting booth. But voters must see how many of their tax dollars are spent on prosecutions and criminal punishment to act meaningfully in their "self-interest well understood" and to supervise the exercise of that authority.
56. As Ronald Wright recently wrote, "There are reasons to believe that elections could lead prosecutors to apply the criminal law according to public priorities and values. Voters choose their prosecutors at the local level, and they care enough about criminal law enforcement to monitor the work of an incumbent." Wright, supra note 9, at 582.
57. DAVIS, supra note 9, at 207 ("[The lead prosecutor] is usually an elected official, and the theory is that he is responsible to the electorate.")
58. see also Ramsey, supra note 28, at 1328.
59. Wayte v. United States, 470 U.S. 598, 607 (1985).
60. United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982).
61. Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). [T]he decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the 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. Wayte, 470 U.S. at 607;
62. see also Morrison v. Olson, 487 U.S. 654, 708 (1988) (Scalia, J., dissenting) ("[T]he balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion.").
63. DAVIS, supra note 9, at 24 ("Whether to prosecute or to refrain from prosecuting X may involve questions of justice, law, facts, policy, politics, and ethics."). In Newman v. United States, the D.C. Circuit explained that "while [prosecutorial] discretion is subject to abuse or misuse just as is judicial discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors⋯ . [I]t is not the function of the judiciary to review the exercise of executive discretion whether it be that of the President himself or those to whom he has delegated certain of his powers." 382 F.2d 479, 482 (D.C. Cir. 1967).
64. Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
65. Robert H. Jackson, The Federal Prosecutor-His Temptations, 24 J. AM. JUDICATURE SOC'Y 18, 18 (1940)
66. accord Angela J. Davis, The American Prosecutor: Power, Discretion, and Misconduct, CRIM. JUST., Spring 2008, at 24, 25-26 ("Prosecutors are the most powerful officials in the criminal justice system. Their routine, everyday decisions control the direction and outcome of criminal cases and have greater impact and more serious consequences than those of any other criminal justice official.").
67. see also Wayte, 470 U.S. at 607 ("In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute.").
68. 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.").
69. Sanford C. Gordon & Gregory A. Huber, Citizen Oversight and the Electoral Incentives of Criminal Prosecutors, 46 AM. J. POL. SCI. 334, 335 (2002).
70. Morrison, 487 U.S. at 676 n.13 (majority opinion).
71. An empirical study confirms this intuition that the political check can rein in prosecutorial discretion. Ramsey, supra note 28, at 1392. That study examined murder cases in the New York District Attorney's Office in the late nineteenth century, concluding that the prosecutions brought reflected the values of lay society in New York at the time.
72. Id.
73. Id.
74. see also Wright, supra note 9, at 581 ("At the end of the day, the public guards against abusive prosecutors through direct democratic control. In the United States, we typically hold prosecutors accountable for their discretionary choices by asking the lead prosecutor to stand for election from time to time. This is not true in most places around the globe. In the various civil law systems in other countries, the idea of electing prosecutors is jarring.").
75. Gordon & Huber, supra note 36, at 336.
76. See Bibas, supra note 11, at 961 ("[P]rosecution is a low-visibility process about which the public has poor information and little right to participate. District attorneys' electoral contests are rarely measured assessments of a prosecutor's overall performance. At best, campaign issues boil down to boasts about conviction rates, a few high-profile cases, and maybe a scandal. The advantages of incumbency and name recognition are also huge." (citing Bibas, Essay, supra note 11, at 923-31));
77. Davis, supra note 29, at 58-59 ("The electorate has very little information about a prosecutor's specific charging and plea bargaining practices or how he plans to exercise his discretion before electing him to office ⋯ . Elected prosecutors typically run on very general 'tough on crime' themes with no information about specific office policies.");
78. Roger A. Fairfax, Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 751 (2008) ("Although well-publicized cases exist as obvious exceptions, prosecutors make the vast majority of their charging decisions without any opportunity for public review.").
79. Wright, supra note 9, at 582- 83 ("[S]tatements [in the typical prosecutor election campaign] ⋯ dwell on outcomes in a few high visibility cases, such as botched murder trials and public corruption investigations. Incumbents and challengers have little to say about the overall pattern of outcomes that attorneys in the office produce or the priorities of the office.").
80. id. at 592 ("[T]he campaign rhetoric offers only poor measures of competence and few measures of values or priorities.").
81. DAVIS, supra note 9, at 207-08.
82. accord Davis, supra note 35, at 26 ("Even elected prosecutors, who presumably answer to the electorate, escape accountability, in part because their most important responsibilities-particularly the charging and plea bargaining decisions-are shielded from public view.").
83. Gordon & Huber, supra note 36, at 337.
84. Even the data Wright advocates to solve the information deficit are aggregated beyond the point of usefulness. See Wright, supra note 9, at 606-08.
85. See, e.g., Brown, supra note 16, at 342. Admittedly, monetizing and particularizing these benefits to particular cases is difficult.
86. Id. at 342.
87. Although statistics regarding the cost of incarceration are ascertainable, the cost of prosecutorial resources expended to review a case, charge it, plea bargain or go to trial, respond to an appeal, and pay a public defender is far more opaque. As Douglas Berman explains, "Long missing [from our criminal justice system] has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost." Monica Davey, Touching Off Debate, Missouri Tells Judges Cost of Sentences, N.Y. TIMES, Sept. 19, 2010, at A1.
88. See supra Part I.A.; see also Wright, supra note 9, at 581 ("When government officials have discretion, the rule of law also requires that they be accountable. This ideal carries even into the world of criminal justice, where the individual prosecutor's power dominates the scene. We hope that every exercise of prosecutorial discretion takes place within a framework of prosecutorial accountability.").
89. A skeptical reader might wonder whether this notion of voters' cost-benefit analysis mischaracterizes the way that the public views criminal law and overestimates voters' concern for the costs of law enforcement. But this Article contends that voters do not always desire more arrests and prosecutions; rather, it contends that voters exposed to cost information might decide that certain prosecutions are a waste of money. For a more detailed explanation, see infra Part III.
90. Broader societal interests were neglected in this decision, but the largest stakeholder's interests were naturally accounted for. The grand jury also functioned as a backstop to determine whether charges could go forward in serious cases
91. see Friedman, supra note 24, at 476, but cases could not proceed without the victim's assessment that the case was worth bringing.
92. Victims' interests continue to play a role in prosecutors' decisions.
93. See STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE FUNCTION § 3-3.2(h) (1993), available at http://www.americanbar.org/ publications/criminal-justice-section-newsletter-home/crimjust-standards-pfunc- blk.html#3.2.
94. Jean Ferguson, Prosecutorial Discretion and the Use of Restorative Justice Programs in Appropriate Domestic Violence Cases: An Effective Innovation, 4 CRIM. L. BRIEF, Summer 2009, at 3, 7. Thus, the prosecutorial decision has not been wholly wrested from the victim's hands, but ultimate decision-making now rests with a disinterested official.
95. Admittedly, when no mandatory minimum sentence is in play, this estimate takes a good deal of guesswork by prosecutors. But perfection is not necessary. That prosecutors must estimate and consider these costs and then reveal their thinking to voters achieves the efficiency and democratic accountability goals of this Article. Considering the cost of each individual prosecution might seem odd because many prosecutors are not paid for each case individually. Rather, lead prosecutors receive an upper bound on expenditures, and they are free to make decisions so long as they do not exceed that funding limit. Lead prosecutors may even have a fixed number of employment positions to fill or fixed salary levels. But the particular allocation of funds or the number of prosecutors in a particular office are fixed costs only in the short run. In the long run, they are variable. If prosecutorial budgets are sufficiently large that cases are brought in which voters view their marginal cost as exceeding their marginal benefit, voters will seek to tighten prosecutorial budgets in future years.
96. See, e.g., Brown, supra note 16, at 325.
97. This Article's proposal helps to remedy a situation in which "opacity and insularity allow prosecutors to avoid serving victims and the public faithfully." Bibas, supra note 11, at 963.
98. See id. at 989 ("Better information might also help voters to monitor their agents.").
99. E.g., Stuntz, supra note 21, at 509 ("How did criminal law come to be a one-way ratchet that makes an ever larger slice of the population felons, and that turns real felons into felons several times over? The conventional answer is politics. Voters demand harsh treatment of criminals; politicians respond with tougher sentences (overlapping crimes are one way to make sentences harsher) and more criminal prohibitions.")
100. see also Sara Sun Beale, What's Law Got to Do With It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRIM. L. REV. 23, 29 (1997) ("The epithet 'soft on crime' is the contemporary equivalent of 'soft on Communism.'")
101. Brown, supra note 16, at 330-31 ("[T]he particular interest group pressures on criminal law aggravate the trend toward harsh punitivism and the criminal justice administration's failure to respond rationally. Prosecutors face pressure mostly from victims and a public concerned about becoming victims; legislators face lobbying from that same public, as well as from prosecutors. Save for the occasional public scandal from prosecutorial overreaching (consider wrongful conviction cases or publicity of punishments far outside public sentiment), there is little effective pressure from the defense side to moderate government policy on criminal justice.")
102. Beale, supra note 56, at 31.
103. Brown, supra note 16, at 330-31.
104. Defense-oriented groups such as the American Civil Liberties Union and Families Against Mandatory Minimums could benefit greatly from increased information flow regarding criminal law enforcement. Moreover, groups promoting legalization and decriminalization of marijuana may gain increasing traction as these movements come to be seen as revenue generators or at least cost savers in times of difficulty for state budgets.
105. That an efficient allocation of prosecutorial resources is desirable does not rest merely on economics' constant striving for efficiency. Desire for a more socially efficient use of prosecutorial resources perhaps partially animated the move from private to public prosecution. In this regard, consider Justice Scalia's dissent in Morrison v. Olson: Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting. 487 U.S. 654, 703 (1988) (Scalia, J., dissenting). Just as the independent prosecutor did not face the same responsibility to consider all the costs and benefits of a prosecution, recent literature has criticized the inefficiency of privately brought qui tam suits. See, e.g., Sharon Finegan, The False Claims Act and Corporate Criminal Liability: Qui Tam Actions, Corporate Integrity Agreements and the Overlap of Criminal and Civil Law, 111 PENN ST. L. REV. 625 (2007) (arguing that inefficiency in qui tam suits results because the prosecutor is not a public official who brings a case when the benefit to the public is greater than or equal to its cost, but rather a private citizen who balances only the costs and benefits to himself, leaving a highly inefficient social outcome); see also Michael Rich, Prosecutorial Indiscretion: Encouraging the Department of Justice to Rein in Out-of- Control Qui Tam Litigation Under the Civil False Claims Act, 76 U. CIN. L. REV. 1233, 1251 (2008) (raising similar concerns).
106. E.g., PAUL BUTLER, LET'S GET FREE: A HIP-HOP THEORY OF JUSTICE 19 (2009) ("There is a tipping point at which crime increases if too many people are incarcerated. The United States is past this point. If we lock up fewer people, we will be safer."
107. Martin H. Pritikin, Is Prison Increasing Crime?, 2008 WIS. L. REV. 1049, 1091 (2008) ("[A]ny further increases in incarceration beyond [2008] levels would actually create more crime than they would prevent.")
108. Rough Justice, ECONOMIST, July 24, 2010, at 13 (arguing that in the United States "the cost of imprisoning criminals often far exceeds the benefits")
109. Too Many Laws, Too Many Prisoners, ECONOMIST, July 24, 2010, at 26, 26 ("Justice is harsher in America than in any other rich country.")
110. see also Coleman v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *83-85 (E. & N.D. Cal. Aug. 4, 2009) (overcrowded prisons threaten rather than protect public safety), enforced, 2010 WL 99000 (E. & N.D. Cal. Jan. 12, 2010), appeal docketed sub nom. Schwarzenegger v. Plata, No. 09-1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed, U.S. , 130 S.Ct. 3413 (2010)
111. Beale, supra note 56, at 31 (harsher enforcement continues even in the face of evidence that harsher sentences do not produce additional deterrence)
112. See Morrison, 487 U.S. at 728 (Scalia, J., dissenting) ("Under our system of government, the primary check against prosecutorial abuse is a political one."). Although Justice Scalia was referring to federal prosecutors, that the primary check is a political one holds also for state and local prosecutors.
113. See Davis, supra note 35, at 29-30 ("Everyone who believes in democracy has a vested interested in assuring that no one individual or institution exercises power without accountability to the people. For some reason, we have given prosecutors a pass-allowing them to circumvent the scrutiny and accountability that we ordinarily require of those to whom we grant power and privilege while affording them more power than any other government official.").
114. Fairfax, supra note 41, at 732 ("Discretion is the backbone of the criminal justice system. The administration of criminal justice is not wooden and mechanical-there are far too many criminal laws and far too many offenders for society's limited police, prosecutorial, judicial, and penological resources. Therefore, actors in the criminal justice system must exercise some discretion in deciding which individuals to arrest, prosecute, convict, and punish.").
115. see also DAVIS, supra note 9, at 164 n.4 ("[R]eform of existing criminal statutes is an obvious prerequisite to substantially full enforcement. Anything approaching full enforcement of present statutes would be unthinkable.").
116. That prosecutors possess such power to discretionarily choose not to proceed likely has its origins in the writ of nolle prosequi. Rebecca Krauss, The Theory of Prosecutorial Discretion in Federal Law: Origins and Developments, 6 SETON HALL CIRCUIT REV. 1, 18-25 (2009);
117. Sarat & Clarke, supra note 13, at 401.
118. "Decisions of prosecutors are quintessentially sovereign acts in that they are moments when officials can decide who shall be removed from the purview of the law." Sarat & Clarke, supra note 13, at 410-11
119. see also AGAMBEN, supra note 13, at 17-18.
120. Sarat & Clarke, supra note 13, at 391 ("By declining prosecution even when there is probable cause, prosecutors have the power to create exceptions to the reach of valid law-a power that signals the kind of lawlessness that is at the heart of sovereignty.")
121. see also Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring) ("The Executive has the power (whether or not it has the right) effectively to nullify some provisions of law by the mere failure to prosecute-the exercise of so-called prosecutorial discretion.")
122. Fairfax, supra note 27, at 431 (citing Sarat and Clarke for the principle that democratic authority is a "fragment of sovereignty")
123. Andrew B. Loewenstein, Judicial Review and the Limits of Prosecutorial Discretion, 38 AM. CRIM. L. REV. 351 (2001).
124. Sarat & Clarke, supra note 13, at 406 (discussing Montesquieu and Locke conceptualizing the prosecutor as a "surrogate sovereign").
125. Id.
126. see also BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 77, 80-81 (Thomas Nugent trans., Hafner Publishing Company 1949) (1748) ("In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted⋯ . [T]he prince, who is established for the execution of the laws, appoints an officer in each court of judicature to prosecute all sorts of crimes in his name.");
127. cf. Vorenberg, supra note 16, at 1557 (the prosecutor acts as the government's representative). Many scholars have described the prosecutor through this agency lens.
128. See Bibas, supra note 11, at 979 (discussing other authors applying the same lens).
129. "When one wants to speak of the political laws of the United States, it is always with the dogma of the sovereignty of the people that one must begin." DE TOCQUEVILLE, supra note 30, at 53. There is something rather American about embracing this notion of popular sovereignty at the root of our democracy: In America, the principle of the sovereignty of the people is not hidden or sterile as in certain nations; it is recognized by mores, proclaimed by the laws; it spreads with freedom and reaches its final consequences without obstacle. If there is a single country in the world where one can hope to appreciate the dogma of the sovereignty of the people at its just value, to study it in its application to the affairs of society, and to judge its advantages and its dangers, that country is surely America.
130. Id.
131. See supra Part I.A.
132. Pursuit of the public interest is the essential function of the prosecutor. Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?, 41 B.C. L. REV. 789, 792 (2000). While at present prosecutors may not act perfectly in conjunction with the prosecutorial preferences of their constituencies, they nonetheless attempt to exercise their authority to serve the public's interest.
133. See MONTESQUIEU, supra note 69, at 81 ("The public prosecutor watches for the safety of the citizens.").
134. Pizzi, supra note 30, at 1338.
135. Id. at 1339.
136. See infra Part II.A.
137. JOHN LOCKE, TWO TREATISES OF GOVERNMENT, THE SECOND TREATISE OF GOVERNMENT § 137, at 185 (Mark Goldie ed., Everyman 1993) (1690).
138. "[M]en would not quit the freedom of the state of nature for" a situation in which their lives, or perhaps their liberties, were at equal or greater risk.
139. Id.
140. accord Sarat & Clarke, supra note 13, at 405. It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate's hand to execute his unlimited will arbitrarily upon them: this were to put themselves in a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination.
141. LOCKE, supra note 76, § 137, at 185. Locke described the state of nature, that is, the "state all men are naturally in," in part as a state of perfect freedom to order their actions, and dispose of their possessions, and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man: A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that creatures of the same species and rank promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all, should by any manifest declaration of his will set one above another, and confer on him by an evident and clear appointment an undoubted right to dominion and sovereignty.
142. Id. § 4, at 116.
143. LOCKE, supra note 76, § 137, at 185. This Article does not advocate democratic control over the office of the prosecutor in the sense that political influences, as Vorenberg feared, "enter into the decisions prosecutors make and that they may deal harshly or gently with particular individuals for political reasons." Vorenberg, supra note 16, at 1558. There is a critical distinction here between "political influences" in the negative sense of prosecuting or refraining from prosecuting certain individuals versus political influences in the positive sense of prosecutors targeting certain types of offenses that their constituencies consider particularly heinous.
144. See Sandra Caron George, Prosecutorial Discretion: What's Politics Got to Do with It?, 18 GEO. J. LEGAL ETHICS 739, 751- 52 (2005).
145. Wright, supra note 9, at 589 ("Note that democratic control of prosecutors takes its most powerful form: local control⋯ . The local prosecutor remains close to the community, where democratic accountability is thought to be strongest.")
146. see also Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 386 (2004) ("The decision to prosecute a criminal case, for example, is made by a publicly accountable prosecutor subject to budgetary considerations and under an ethical obligation, not only to win and zealously to advocate for his client but also to serve the cause of justice.")
147. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987) ("Between the private life of the citizen and the public glare of criminal accusation stands the prosecutor. That state official has the power to employ the full machinery of the state in scrutinizing any given individual. Even if a defendant is ultimately acquitted, forced immersion in criminal investigation and adjudication is a wrenching disruption of everyday life. For this reason, we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice.").
148. Vorenberg, supra note 16, at 1555.
149. Morrison v. Olson, 487 U.S. 654, 731 (1988) (Scalia, J., dissenting).
150. DAVIS, supra note 9, at 98 ("Openness is the natural enemy of arbitrariness and a natural ally in the fight against injustice.");
151. see also LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY 62 (1933) ("Sunlight is said to be the best of disinfectants."). Vorenberg's concerns regarding the lack of due process afforded to defendants by this system of broad ad hoc prosecutorial discretion are alleviated in part by the mandatory cost disclosure proposal because prosecutors have greater incentive to act in accordance with their constituents' views. Nonetheless, implementing majority will is no guarantee of due process for particular defendants.
152. See DE TOCQUEVILLE, supra note 30 (discussing tyranny of the majority). Thus, the scope of this proposal, while directed at enhancing democracy, is not coextensive with Vorenberg's or Davis's due process concerns.
153. See Fairfax, supra note 41, at 729 (identifying the grand jury as a vehicle for local input and power).
154. id. at 720 ("[T]he grand jury is not limited-by either tradition or constitutional design-to merely screening criminal cases for probable cause ⋯ .").
155. Id. at 706 (emphasis omitted).
156. Id. at 713.
157. Id. "[T]he grand jury may exercise its discretion to send the Executive a message about its preferred allocation of law enforcement and prosecutorial resources. This discretion also can be brought to bear on exercises of prosecutorial discretion in specific cases
158. Id. at 728.
159. Susan W. Brenner, The Voice Of The Community: A Case For Grand Jury Independence, 3 VA. J. SOC. POL'Y & L. 67, 121 (1995). Case authority supports this description of the grand jury's role.
160. See Vasquez v. Hillery, 474 U.S. 254, 263 (1986) (explaining that the grand jury's role is broader than merely determining probable cause and encompasses discretionary decisions regarding which crimes to charge);
161. United States v. Calandra, 414 U.S. 338, 343 (1974) (discussing the grand jury's "special role in insuring fair and effective law enforcement")
162. id. ("It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime." (quoting Blair v. United States, 250 U.S. 273, 282 (1919))).
163. see Bracy v. United States, 435 U.S. 1301, 1302 (1978) (Rehnquist, J., denying stay) (stating that the grand jury's role is limited to assessing probable cause).
164. United States v. Sears, Roebuck & Co., 719 F.2d 1386, 1394 (9th Cir. 1983) (same).
165. United States v. Udziela, 671 F.2d 995, 1000 (7th Cir. 1982) (same).
166. United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (same).
167. Niki Kuckes labeled the grand jury's somewhat hybrid role as that of "democratic prosecutor." Niki Kuckes, The Democratic Prosecutor: Explaining the Constitutional Function of the Federal Grand Jury, 94 GEO. L.J. 1265, 1300 (2006). Much of the conception Kuckes advances of the grand jury derives from a dissent written by the now-Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, Alex Kozinski.
168. See United States v. Navarro-Vargas, 367 F.3d 896, 900-01 (9th Cir. 2004) (Kozinski, J., dissenting in part). Working from the insights Judge Kozinski suggested and Judge Hawkins endorsed, this Article argues that modern criminal procedure would benefit from a conceptual clarification of the federal grand jury's role-from an express recognition that the grand jury serves, in a sense, as a "democratic prosecutor." This clarification suggests that the grand jury is best seen, in the words of Judge Learned Hand, simply as the "voice of the community accusing its members." Kuckes, supra, at 1300 (quoting In re Kittle, 180 F. 946, 947 (S.D.N.Y 1910)).
169. Hurtado v. California, 110 U.S. 516, 538 (1884).
170. In more than half the states in the country, indictment by grand jury is merely one available mechanism for charging non-capital cases. ARIZ. CONST. art. II, § 30.
171. ARIZ. R. CRIM. P. 2.2; ARK. CONST. amend. 21, § 1.
172. CAL. CONST. art. I, § 14.
173. CAL. PENAL CODE §§ 737, 859 (West 2008).
174. COLO. CONST. art. II, § 8
175. COLO. REV. STAT. § 16-5-101 (2006)
176. CONN. GEN. STAT. §§ 54-45, 54-46 (2001)
177. FLA. CONST. art. I, § 15.
178. HAW. CONST. art. I, § 10
179. HAW. REV. STAT. § 801-1 (2007)
180. IDAHO CONST. art. I, § 8.
181. ILL. CONST. art. I, § 7
182. 725 ILL. COMP. STAT. 5/111-2 (2006)
183. IND. CODE § 35-34-1-1 (1998).
184. IOWA CODE § 813.2, Rules 4, 5 (2003)
185. KAN. STAT. ANN. § 22-3201 (1995).
186. LA. CONST. art. I, § 15;
187. MD. CONST. DECL. RTS. art. 21;
188. MD. CODE ANN., CRIM. PROC. § 4-103 (LexisNexis 2008);
189. MICH. COMP. LAWS § 767.1 (2000);
190. MINN. R. CRIM. P. 17.01; MO. CONST. art. I, § 17;
191. MONT. CONST. art. II, § 20;
192. MONT. CODE ANN. § 46-11-101 (2009);
193. NEB. CONST. art. I, § 10;
194. NEB. REV. STAT. § 29-1601 (1995);
195. NEV. CONST. art. I, § 8;
196. N.M. CONST. art. II, § 14;
197. N.D. R. CRIM. P. 7;
198. OKLA. CONST. art. II, § 17;
199. R.I. CONST. art. I, § 7;
200. S.D. CONST. art. VI, § 10;
201. S.D. CODIFIED LAWS § 23A-6-1 (2004);
202. UTAH CONST. art. I, § 13;
203. VT. R. CRIM. P. 7;
204. WASH. CONST. art. I, § 25;
205. WIS. STAT. ANN. § 967.05 (1998);
206. Thaddeus Hoffmeister, The Grand Jury Legal Advisor: Resurrecting The Grand Jury's Shield, 98 J. CRIM. L. & CRIMINOLOGY 1171, 1174 (2008). Of these thirty states, four guarantee grand jury rights in capital cases. FLA. CONST. art. I, § 15;
207. LA. CONST. art. I, § 15;
208. MINN. R. CRIM. P. 17.01;
209. R.I. CONST. art. I, § 7. Because many states do not afford a grand jury right, defendants can only hope that this democratic check is available in their particular cases. In many cases, however, grand jury indictment will not be available and thus will provide no democratic check, further supporting the need for a meaningful democratic check elsewhere.
210. Roger Fairfax's recent article notes that there is no guarantee that grand juries and petit juries would nullify in the same case because the members of each group will consist of different individuals with different perspectives. Fairfax, supra note 41, at 756.
211. United States v. Williams, 504 U.S. 36, 49 (1992);
212. Fairfax, supra note 41, at 743.
213. Paul Butler argued that petit jury nullification provides jurors a way to exercise their conscience and counteract racial injustices. Paul Butler, Essay, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 700 (1995).
214. Jury nullification occurs when a jury acquits a defendant who it believes is guilty of the crime with which he is charged. In finding the defendant not guilty, the jury refuses to be bound by the facts of the case or the judge's instructions regarding the law. Instead, the jury votes its conscience. In the United States, the doctrine of jury nullification originally was based on the common law idea that the function of a jury was, broadly, to decide justice, which included judging the law as well as the facts. If jurors believed that applying a law would lead to an unjust conviction, they were not compelled to convict someone who had broken that law. Although most American courts now disapprove of a jury's deciding anything other than the "facts," the Double Jeopardy Clause of the Fifth Amendment prohibits appellate reversal of a jury's decision to acquit, regardless of the reason for the acquittal. Thus, even when a trial judge thinks that a jury's acquittal directly contradicts the evidence, the jury's verdict must be accepted as final. The jurors, in judging the law, function as an important and necessary check on government power.
215. Id. at 700-01 (citations omitted). Jury nullification has an old history, dating back most famously to Bushell's Case, where the English Court of Common Pleas determined that a juror could not be punished for acquittal even when the trial judge believed the verdict contradicted the evidence. Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670).
216. Butler goes so far as to argue that when African- American jurors consider a case with an African-American defendant, "in cases involving nonviolent, malum prohibitum offenses, including 'victimless' crimes like narcotics offenses, there should be a presumption in favor of nullification." Butler, supra, at 715. For these purposes it is sufficient to note that the petit jury can serve as a democratic check in the criminal justice system.
217. See Barkow, supra note 16, at 882 ("As a result of [the pressure to plea bargain] and costs of exercising trial rights, the trial is an insufficient check on prosecutorial power.");
218. Bibas, supra note 11, at 983;
219. see also Jacqueline E. Ross, The Entrenched Position of Plea Bargaining in United States Legal Practice, 54 AM. J. COMP. L. 717, 717 (Supp. 2006) (stating that more than 95% of cases end in plea bargains).
220. That practical consequences arise merely by being indicted underlies the ABA Model Rule of Professional Conduct regarding duties of the prosecutor. MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 4 ("[T]he announcement of an indictment, for example, will necessarily have severe consequences for the accused ⋯ ."). This is the same stigma that former defendants face following an acquittal. Andrew D. Leipold, The Problem of the Innocent, Acquitted Defendant, 94 NW. U. L REV. 1297, 1305 (2000) ("For most innocent defendants, it does not take long to realize that the stigma associated with an arrest and criminal charge does not easily wash away. Those close to the defendant might know the truth, but neighbors, acquaintances and co-workers may always wonder about the real basis of the acquittal or dismissal.").
221. As Angela Davis writes, "One of the reasons prosecutorial discretion is so essential to the criminal justice system is the proliferation of criminal statutes in all 50 states and the federal government." Davis, supra note 35, at 28.
222. This would not hold true if prosecutors were required to charge all applicable offenses, but that is certainly not the case. As Judge Gerard Lynch put it:. So long as our criminal codes contain too many prohibitions, the contents of which are left to be defined by their implementation, or which cover conduct that is clearly not intended to be punished in every instance, or which provide for the punishment of those who act without wrongful intent, prosecutors must exercise judgment about which of the many cases that are technically covered by the criminal law are really worthy of criminal punishment. (And, given the number of legitimate cases that could be brought, so long as crime rates remain high and the resources devoted to criminal justice remain inadequate to deal with them all, prosecutors must also make decisions about which cases constitute the best use of limited judicial and law enforcement resources.)
223. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117, 2136-37 (1998) (citations omitted). The overlapping criminal codes and the related decision of which crime to charge do not comprise the only dimension of prosecutorial discretion. Enmeshed in the decision of which of several overlapping statutes to charge, and perhaps subsumed by that decision in part, is the decision whether to charge any crime at all. Both decisions place great authority in prosecutorial hands, and both decisions thus find themselves at the center of this Article.
224. Id. at 2137;
225. see also Stuntz, supra note 21, at 509 ("How did criminal law come to be a oneway ratchet that makes an ever larger slice of the population felons, and that turns real felons into felons several times over? The conventional answer is politics. Voters demand harsh treatment of criminals; politicians respond with tougher sentences (overlapping crimes are one way to make sentences harsher) and more criminal prohibitions." (citations omitted)); Wright, supra note 9, at 585 ("Instead of confining the work of prosecutors, criminal codes add to their power. As the years pass, the legislature expands the legal tools available to prosecutors. Criminal codes tend to cover more behavior and increase the range of punishments that could attach to conduct that is already declared criminal."). Some attribute the peak of the crime-control wave to the tremendously successful Willie Horton campaign ad in 1988. Laura Sullivan, Shrinking State Budgets May Spring Some Inmates, NAT'L PUB. RADIO (Mar. 31, 2009), http://www.npr.org/templates/story/story.php? storyId=102536945.
226. "'[S]oft on crime' is the contemporary equivalent of 'soft on Communism.'" Beale, supra note 56, at 29. The political cost of the soft-on-crime label has received no shortage of discussion.
227. See, e.g., Margaret H. Lemos, The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?, 84 TEX. L. REV. 1203, 1250 n.179 (2006);
228. Pritikin, supra note 61, at 1105-06.
229. Barkow, supra note 16, at 880 ("Congress continues to pass mandatory minimum sentencing laws even though there is uniform agreement by experts-including the United States Sentencing Commission-that these laws are unwise and lead to greater disparity in practice because of the power they vest in prosecutors. Members of Congress support these laws because they do not want to be viewed as soft on crime or resistant to prosecution demands." (citations omitted));
230. Lynch, supra note 97, at 2137-38.
231. Lynch, supra note 97, at 2137.
232. Ian Weinstein, Fifteen Years After the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing, 40 AM. CRIM. L. REV. 87, 88 (2003).
233. Michael A. Simons, Prosecutors as Punishment Theorists: Seeking Sentencing Justice, 16 GEO. MASON L. REV. 303, 324 (2009) [hereinafter Punishment Theorists];
234. Michael A. Simons, Prosecutorial Discretion in the Shadow of Advisory Guidelines and Mandatory Minimums, 19 TEMP. POL. & CIV. RTS. L. REV. 377, 384-85 (2010) [hereinafter Advisory Guidelines];
235. see also Geoffrey S. Corn & Adam M. Gershowitz, Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct, 14 BERKELEY J. CRIM. L. 395, 399 (2009) (discussing prosecutorial authority in determinate sentencing schemes);
236. Albert W. Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals For "Fixed" and "Presumptive" Sentencing, 126 U. PA. L. REV. 550, 565-76 (1978) (same).
237. Fairfax, supra note 41, at 732 ("Discretion is the backbone of the criminal justice system. The administration of criminal justice is not wooden and mechanical-there are far too many criminal laws and far too many offenders for society's limited police, prosecutorial, judicial, and penological resources. Therefore, actors in the criminal justice system must exercise some discretion in deciding which individuals to arrest, prosecute, convict, and punish." (citations omitted)).
238. DAVIS, supra note 9, at 164 n.4 ("[R]eform of existing criminal statutes is an obvious prerequisite to substantially full enforcement. Anything approaching full enforcement of present statutes would be unthinkable."). In the four decades since Davis's book was first published, the scope of criminal statutes has assuredly not decreased.
239. Id. at 17;
240. see also id. ("Even when rules can be written, discretion is often better.");
241. id. at 25 ("Discretion is a tool, indispensable for individualization of justice⋯ . Rules alone, untempered by discretion, cannot cope with the complexities of modern government and of modern justice⋯ . Discretion is a tool only when properly used ⋯ .");
242. Bibas, supra note 18, at 370 ("Even in a world of unlimited resources and sane criminal codes, discretion would be essential to doing justice. Justice requires not only rules but also fine-grained moral evaluations and distinctions.").
243. Vorenberg, supra note 16, at 1522 ("[It is] anomalous at best that, in a system dedicated to due process, great and essentially unreviewable powers are vested in the prosecutor."). Davis acknowledges that discretion is necessary but argues that a lesser degree of discretion would be both preferable and plausible. DAVIS, supra note 9, at 188-93. His basis for concluding that lesser discretion is plausible rests on a questionable comparison to the European model.
244. Id. Comparisons to the European model run the risk of obscuring the primary difference between the American and European models-the accusatorial versus inquisitorial system. William Pizzi persuasively argues that this difference requires a greater degree of discretion in the American system. Pizzi, supra note 30, at 1352-53 ("Judicial review of prosecutorial power is workable in the civil law tradition because the roles of the judge and the prosecutor are very different in that tradition and because the nature of criminal trials are different in that tradition. First of all, judicial review of a prosecutor's decision to charge or not to charge faces no separation of powers principle in the civil law tradition⋯ . There is thus no separation of powers problem in putting a civil law judge in the position of closely supervising the prosecutor and, given the civil law judge's responsibility to develop the evidence at trial, it seems natural to give the civil judge the power to control charging discretion. This power extends even to reshaping the charges to more accurately fit the evidence at trial."). To fill a void that would exist if broad prosecutorial discretion were restricted, a judge would necessarily be required to exercise broader authority over charging decisions, a feature incompatible with our accusatorial system.
245. Id. at 1353 ("To ask that an American judge play a similarly aggressive role with respect to charging decisions raises serious separation of powers problems and runs contrary to the adversary tradition in which judges are assigned a neutral and passive role with respect to charging decisions and the development of evidence at trial. If we wish to limit prosecutorial power and 'reform' our prosecutors to fit the civil law model, we would have to reform our concept of judicial power to fit the civil law model as well." (citations omitted)).
246. See supra Part I.C.
247. Mandatory cost disclosures also serve the same purpose as the Government in the Sunshine Act.
248. See Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1976);
249. id. § 2 ("[T]he public is entitled to the fullest practicable information regarding the decision-making processes of the Federal Government.");
250. H.R. Rep. No. 94-880(I) (1976) (discussing making government "fully accountable to [the people] for the actions which it supposedly takes on their behalf"). The procedural, information-forcing statute proposed in this Article is meant to facilitate an effective democratic check and parallels the Freedom of Information Act (FOIA) and the National Environmental Policy Act (NEPA).
251. See National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970);
252. Freedom of Information Act, Pub. L. No. 89-554, 80 Stat. 383 (1966);
253. see also Dep't of the Air Force v. Rose, 425 U.S. 352, 372 (1976) ("[T]he basic purpose of the Freedom of Information Act [is] to open agency action to the light of public scrutiny." (quotation omitted));
254. Albert C. Lin, Clinton's National Monuments: A Democrat's Undemocratic Acts?, 29 ECOLOGY L.Q. 707, 732 (2002) ("The public notice and participation requirements of NEPA have a strong democratic element in their emphasis on direct citizen participation.");
255. Lorna Jorgensen, Note, The Move Toward Participatory Democracy in Public Land Management Under NEPA: Is it Being Thwarted by the ESA?, 20 J. LAND RESOURCES & ENVTL. L. 311, 315 (2000) ("NEPA's strength lies in its democratization of Federal administrative law. NEPA mandates public and interagency involvement. It thereby empowers citizens with the information they need to meaningfully contribute to the environmental decision making process." (quoting 139 Cong. Rec. E2342 (daily ed. Oct. 5, 1993) (statement of Rep. Owens))).
256. As explained above, whether and how to build law enforcement costs into this model falls outside the scope of this Article. See supra note 20.
257. That these disclosures might not be complete for several years after the case is completed appears at first glance to present a bit of a weakness in the cost disclosure proposal. After a several year period, individual prosecutors might not be in the same job such that voters can hold them easily accountable. But opportunities for accountability remain on two fronts. First, those same statistics could still be brought to bear in campaigns against those prosecutors if they are running for higher office. Second, in prosecutorial campaigns in the same jurisdiction, the candidates could be asked to evaluate the earlier cost-benefit decisions, and voters could consider their candidacies accordingly.
258. Whether a parent should serve a lesser sentence than a non-parent for the same crime is by no means an easy question of punishment theory, nor is the answer assumed in this discussion. Rather, the answer will emerge through the aggregation of informed voter sentiment in each community. In other words, if voters think a parent of a small child should serve a lesser sentence than a similar offender without a child, they can vote out their prosecutor for treating the two offenders similarly. Or perhaps voters might wish these two offenders be treated similarly and hold their prosecutor accountable for treating them differently. Whatever the preferences of each local constituency, there is hardly a reliable way to discern voter sentiment without the disclosures proposed here. Those voter preferences are likely ignored at present because they are exogenous to a prosecutor's charging calculus.
259. DAVIS, supra note 9, at 189-91;
260. see also Gordon & Huber, supra note 36, at 336.
261. "Decisions of prosecutors are quintessentially sovereign acts in that they are moments when officials can decide who shall be removed from the purview of the law." Sarat & Clarke, supra note 13, at 410-11;
262. see also AGAMBEN, supra note 13, at 17-18.
263. 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.");
264. see also MODEL RULES OF PROF'L CONDUCT R. 3.8 ("The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.").
265. Because of overlapping criminal codes, numerous charges could be brought on most sets of facts.
266. See supra Part II.A. Nonetheless, prosecutors should list all charges that could have been supported by the evidence but were not filed.
267. See Leipold, supra note 95, at 1305 (discussing the stigma of a charged defendant).
268. Reporting itself need not be costly. Cost disclosure reports can be posted on the internet to save a great deal on paper and ink. An online posting would also make the data easier to access.
269. Lynch, supra note 97, at 2139. As one commentator framed this cost-benefit analysis, prosecutors will prosecute only where the cost of pursuing the prosecution and the harm to the public do not outweigh the harm caused by the defendant. Rich, supra note 60, at 1253.
270. See, e.g., DAVIS, supra note 9, at 189-90; Barkow, supra note 16, at 895-906;
271. Brown, supra note 16, at 371;
272. Gershowitz, supra note 16, at 65-72;
273. Vorenberg, supra note 16, at 1560-72.
274. See Bibas, supra note 11, at 962 ("[M]ost [scholars] favor external regulation of prosecutors by other institutions. One strand of this scholarship, exemplified by James Vorenberg's work, favors legislation to restrict prosecutorial discretion ex ante⋯ . [T]hese external, institutional controls have proven to be ineffective. Legislation is too crude, and ex post review of individual cases is too narrow, to attack the deeper, systemic problems with patterns of prosecutorial discretion.");
275. see also Vorenberg, supra note 16, at 1562-63 (urging prosecutors to create specific guidelines explaining how they will exercise discretion given a particular set of facts).
276. See DAVIS, supra note 9, at 37 ("Beyond the intellectual power of any judges or legislators is the capacity to write rules that will be satisfactory for all future cases without knowing the facts of such cases.").
277. See id. at 190 (raising possibility of a system of prosecutorial precedent). Using prosecutorial actions as "guidelines and policies" is far less burdensome and encourages the free flow of information necessary for democratic governance. Bibas, supra note 18, at 374-75. Nonetheless, this Article does not advocate memoranda explaining deviations from prior precedent.
278. See id. When voters are concerned or an election challenger questions an incumbent prosecutor regarding a particular case, the prosecutor would then be forced to defend her actions in that case, and this additional discourse would provide voters a sufficient stream of information without imposing a greater burden than necessary on prosecutors.
279. See supra Part II.A. Perhaps it is not surprising that this Article's proposal diverges sharply from Davis's or Vorenberg's because this proposal seeks democratic accountability and efficiency rather than protection of due process. That a democratic result can slight due process is hardly controversial.
280. See DE TOCQUEVILLE, supra note 30, at 239-64 (discussing tyranny of the majority). Due process concerns are beyond the objectives of this Article.
281. See Brown, supra note 16, at 371.
282. Once legislatures see prosecutorial expenditure statistics, they may opt to exercise greater oversight authority and control via legislation. This too would be an improvement from a democratic theory perspective because a representative body would control the broader policy decisions. Admittedly, legislation might diminish prosecutorial discretion in individual cases, which could force prosecutors into making inefficient decisions. But even if such decisions are inefficient individually, the broader scheme of prosecutorial priorities would more likely embody voter preferences as the voters would no longer face cost blindness, and thus implementation of prosecutorial priorities would be more efficient overall.
283. A shift of discretionary power from prosecutors to judges would reflect the axiom that power abhors a vacuum.
284. Pizzi, supra note 30, at 1353 ("To ask that an American judge play a similarly aggressive role with respect to charging decisions raises serious separation of powers problems and runs contrary to the adversary tradition in which judges are assigned a neutral and passive role with respect to charging decisions and the development of evidence at trial.").
285. Such separation of powers concerns derive from the premise that the prosecutorial function is traditionally executive.
286. See Morrison v. Olson, 487 U.S. 654, 705-06 (1988) (Scalia, J., dissenting). Mandatory cost disclosures risk neither legislative overreaching into prosecutorial decisions, the very concern animating the Bill of Attainder Clause, U.S. CONST. art. I, § 9, cl. 3, nor judicial overreaching incompatible with the adversarial system .
287. See Gershowitz, supra note 16, at 67 ("Although it is impossible to say for certain whether an informational campaign would have any effect on prosecutors' charging decisions, there is a body of social psychology literature that gives cause for optimism.").
288. Gershowitz suggests alleviating prison overcrowding by requiring state bureaucracies to inform prosecutors about (1) the total number of incarcerated prisoners, (2) the change in number from previous years, (3) the percentage of prisons at or exceeding capacity, and (4) whether any prisons are under court orders regarding overcrowding. This added information, he suggests, will alter prosecutorial decisionmaking- a proposition that he supports largely through social psychology literature.
289. Id. at 65-72.
290. See Vorenberg, supra note 16, at 1525 ("Even when bargaining is not involved, however, there are good reasons to see prosecutors' virtually unlimited control over charging as inconsistent with a system of criminal procedure fair to defendants and to the public. This is especially true because the recent and successful attacks on the discretion of sentencing judges and parole and corrections authorities have had the effect of increasing prosecutors' powers.").
291. As a general matter, Bibas seems correct that "legislatures lack the interest and incentive to check prosecutors vigorously; they would rather be seen as prosecutors' allies in the fight on crime." Bibas, supra note 11, at 968. But legislatures do have an incentive to pass legislation that empowers voters (so long as the added power does not come at the expense of legislatures) because voters seem to like the idea that they control their government. This incentive could trump legislatures' general reluctance to regulate prosecutors.
292. This proposal does not run afoul of Bibas's criticism: [H]oping for legislatures to rein in prosecutorial discretion is a pipe dream. Legislatures have strong incentives to give prosecutors freedom and tools to maximize convictions and minimize costs. For example, legislatures broaden criminal liability, pass overlapping statutes, and raise punishments to give prosecutors extra plea-bargaining chips. By doing so, they drive down the cost and increase the certainty and expected value of each conviction. Prosecutors can thus convict more defendants and procure longer sentences for the same amount of time and money. This increase in efficiency serves legislators' interest in being tough on crime and prosecutors' interest in maximizing convictions while minimizing workloads.
293. Bibas, supra note 11, at 966.
294. Coleman v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *116 (E. & N.D. Cal. Aug. 4, 2009), enforced, 2010 WL 99000 (E. & N.D. Cal. Jan. 12, 2010), appeal docketed sub nom. Schwarzenegger v. Plata, No. 09-1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed,-U.S., 130 S.Ct. 3413 (2010); Act of Oct. 11, 2009, ch. 28, 2009 Cal. Stat. 4392.
295. See Wright, supra note 9, at 582-83.
296. See id.
297. See, e.g., Sam Allen & Abby Sewell, Bell is Not the Only Big Spender, L.A. TIMES, Aug. 15, 2010, at A33;
298. Jeff Gottlieb & Ruben Vives, Is a City Manager Worth $800,000?, L.A. TIMES, July 15, 2010, at A1. Just as with FOIA disclosures, the media would channel information to the public eye.
299. See Michael Russo, Are Bloggers Representatives of the News Media Under the Freedom of Information Act?, 40 COLUM. J.L. & SOC. PROBS. 225, 227 (2006).
300. See Sacramento Schools to Cut 430 Jobs, Increase Class Sizes, ABC NEWS 10 (Mar. 5, 2010), http://www.news10.net/news/local/story.aspx?storyid=76603.
301. See Vorenberg, supra note 16, at 1547 (explaining that prosecutors currently consider "whether the probability of a successful prosecution is worth the time and resources that must be invested in the case").
302. Misner, supra note 23, at 719.
303. This calculus is complicated by the cross-cutting pressure that overcrowded prisons "perpetuate a criminogenic prison system that" threatens, rather than protects, public safety. Coleman v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *299 83-85 (E. & N.D. Cal. Aug. 4, 2009), enforced, 2010 WL 99000 (E. & N.D. Cal. Jan. 12, 2010), appeal docketed sub nom. Schwarzenegger v. Plata, No. 09-1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed,-U.S.-130 S.Ct. 3413 (2010);
304. accord Pritikin, supra note 61, at 1058. In Coleman, California officials conceded that prison overcrowding threatens public safety. 2009 WL 2430820, at *86.
305. See supra Part II.A.
306. Simons, Punishment Theorists, supra note 103, at 324 (arguing that mandatory minimums shift a great deal of power to prosecutors); Simons, Advisory Guidelines, supra note 103, at 384-85;
307. see also BUTLER, supra note 61, at 107 ("Sentencing guidelines and mandatory minimum sentences have reduced the discretion that judges used to have to fit the punishment to the crime. The prosecutor can circumvent required sentences simply by charging a different crime, or leaving out some of the evidence."). Three-strikes laws are no different for these purposes. This is particularly true with "wobblers," crimes that can be charged as either felonies or misdemeanors.
308. See Ewing v. California, 538 U.S. 11, 16 (2003). Only when charged as a felony do wobblers trigger a threestrikes penalty.
309. Id. Thus, wobblers trigger a hefty mandatory sentence only when a prosecutor so desires.
310. Missouri recently recognized the importance of considering cost at sentencing. Its sentencing commission created a system that allows judges to see and consider the costs of various sentencing options for a particular offender. Davey, supra note 47. Judge Michael Wolff of the Supreme Court of Missouri explains that judges had been asking for such data.
311. Id.
312. Lynch, supra note 97, at 2139 ("Discretion in enforcement permits rapid adjustment of priorities as the extent and perceived obnoxiousness of such offenses wax and wane.").
313. See JOAN E. JACOBY, THE AMERICAN PROSECUTOR: A SEARCH FOR IDENTITY 38 (1980) (describing prosecutors' role as "local representation applying local standards to the enforcement of essentially local laws").
314. See supra Part I.A.
315. Judith N. Phelan & Michael D. Schrunk, The Future of Local Prosecution in America, in THE CHANGING ROLE OF THE AMERICAN PROSECUTOR 248 (John L. Worrall & M. Elaine Nugent- Borakove eds., 2008).
316. Id.
317. Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations', N.Y. TIMES, Apr. 23, 2008, at A1.
318. Id.
319. Pizzi, supra note 30, at 1344;
320. cf. Albert W. Alschuler, Disparity: The Normative and Empirical Failure of the Federal Guidelines, 58 STAN. L. REV. 85, 100-02 (2005) (recognizing geographic variation in federal sentencing).
321. Heather Ratcliffe, Crime's Locale May Sway Decision to Seek Death Penalty, ST. LOUIS POST-DISPATCH, July 6, 2008, at A1. A detailed empirical study confirmed the disparity of death sentences in rural versus urban Missouri. Katherine Barnes et al., Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases, 51 ARIZ. L. REV. 305, 307 (2009) ("[T]here are large disparities in the decision-making process and in outcomes depending on the place of the prosecution. . . . [D]efendants in Missouri's two largest cities-St. Louis and Kansas City-are less likely to face capital trials and less likely to be sentenced to death than defendants in the rest of the state."). That result derives from the fact that "prosecutors in St. Louis City and Jackson County [which encompasses Kansas City] filed capital charges much less frequently than prosecutors in the rest of the state."
322. Id. at 344. A reader might wonder whether the fact that urban prosecutors seek the death penalty less often than rural prosecutors indicates that prosecutors already attempt to satisfy their constituents' preferences. That is probably true. Yet prospects for actually adhering to voter preferences on a large scale would improve if those constituencies were well informed regarding the costs of prosecution and the relative priorities that information demonstrated.
323. See supra Part I.B;
324. see also Bibas, supra note 11, at 983 ("Though in theory prosecutors serve the public interest, the public cannot monitor whether they are in fact serving the public well. Voter turnout is low, especially in local elections. Members of the public have sparse and unreliable information about how well prosecutors perform. Most public information about criminal justice comes from crime dramas or novels, reality television shows, or sensational, unrepresentative news stories. As a result, the public suffers from chronic misperceptions about how the criminal justice system actually works. The public also has very little power to influence criminal justice." (citations omitted)).
325. See ANDREU MAS-COLELL ET AL., MICROECONOMIC THEORY 368 (1995) ("The presence of privately held (or asymmetrically held) information can confound both centralized (e.g., quotas and taxes) and decentralized (e.g., bargaining) attempts to achieve optimality." (emphasis in original));
326. HAL R. VARIAN,MICROECONOMIC ANALYSIS 466-69 (3d ed. 1992).
327. Allowing a perfectly competitive market to reach equilibrium is presumably why simple economic models assume perfect information. MAS-COLELL ET AL., supra note 155, at 716 ("Up to now we have concentrated the analysis on a model where spot trading for goods occurs under conditions of perfect information about the state of the world. In this section, we relax this feature by considering the possibility that this information is not perfect. In doing so, we shall see that there is a key difference between the case of symmetric information (all traders have the same information), which is largely reducible to the previous theory, and the case of asymmetric information, where a host of new and difficult conceptual problems arise." (emphasis in original)).
328. See Vorenberg, supra note 16, at 1526-27. Vorenberg seems correct that in high-profile cases prosecutors' discretion is already checked to a certain extent by their electorates.
329. See id.
330. See Wright, supra note 9, at 602 ("The candidates talk a great deal about last year's notorious case⋯[But] an outcome in one big case tells us little about the quality of prosecution work more generally.");
331. see also Vorenberg, supra note 16, at 1526-27 ("Prosecutors exercise the least discretion over those crimes that most frighten, outrage, or intrigue the public, such as murder, rape, arson, armed robbery, kidnapping, and large-scale trafficking in hard drugs, particularly when the circumstances make the crime unusually heinous. Since visibility focuses greater scrutiny on the prosecutor, only a prosecutor whose political position is unusually secure can disappoint expectations that are part of the climate in which he works. Of course, what is seen as outrageous varies with time and place.").
332. Lack of usable information seems to account for the two failures of prosecutor elections. "First, they do not often force an incumbent to give any public explanation at all for the priorities and practices of the office. Second, even when incumbents do face challenges, the candidates talk more about particular past cases than about the larger patterns and values reflected in local criminal justice." Wright, supra note 9, at 583.
333. This attempt to force information into voters' hands scores with Wright's suggestion that better informed voters would make better choices. Id. at 606.
334. See DAVIS, supra note 9, at 143 ("Possibly the most important check of discretionary action is simply the normal supervision of subordinates by superiors.");
335. Stuntz, supra note 21, at 535 ("District attorneys are likely to seek to manage their offices in ways that win them public support. To some degree, line prosecutors will seek to do that too, because that is their bosses' goal, and they must satisfy their bosses in order to keep their jobs.").
336. Phelan & Schrunk, supra note 148, at 250-51. Related to the effective democratic check on the prosecutor is the notion that "prisons [are] a rough reflection of the societies that create and maintain them-that is, that nations get the prison systems they want or deserve." Craig Haney, Counting Casualties in the War on Prisoners, 43 U.S.F. L. REV. 87, 90 (2008).
337. Winston Churchill similarly observed that the "mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country." WINIFRED A. ELKIN, THE ENGLISH PENAL SYSTEM 277 (1957) (quoting a Winston Churchill speech before the House of Commons). In Coppedge v. United States, the Court explained that "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." 369 U.S. 438, 449 (1962).
338. See Vorenberg, supra note 16, at 1559 ("The results are disheartening for one who believes that the legislature and the public should have sufficient information to improve the way government works. Prosecutorial discretion precludes access to such information. For example, a prosecutor may have an unannounced practice of holding in abeyance charges for most first-offense larceny cases against youthful offenders, while being very tough on sales of even small amounts of drugs. Typically there is no way of testing the effects of reversing the practice, or of determining whether this approach reflects the public's wishes. The fact that prosecutors or their appointing authorities must seek election is small comfort in view of the low visibility with which they exercise their discretion.").
339. "[A]n informed public is the essence of working democracy." Minneapolis Star &Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 585 (1983).
340. This was the same principle animating Judge Learned Hand's democratic wager-"democracy is best protected by a principle that forbids government to limit or control political speech in any way for the purpose of protecting democracy." DWORKIN, supra note 6, at 353.
341. Ronald Dworkin's "sophisticated version of the majoritarian conception" of democracy echoes the notion that democracy requires an informed populace, "insist[ing] that the majority's opinion does not count as its will unless citizens have had an adequate opportunity to become informed and to deliberate about the issues."
342. Id. at 357.
343. Layered on top of this concern about the functioning of a democratic check absent information is that "[t]he nature of the democratic process may not lend itself to meaningful policy dialogue between those in power and the populace." Fairfax, supra note 41, at 742;
344. accord SPENCER OVERTON, STEALING DEMOCRACY: THE NEW POLITICS OF VOTER SUPPRESSION 43-64 (2006). Such a lack of dialogue presents difficulties in preservation of popular sovereignty, a notion deeply entwined with democracy.
345. See DWORKIN, supra note 6, at 365.
346. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980) (plurality opinion);
347. id. at 592-97 (Brennan, J., concurring in judgment);
348. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964);
349. In re Oliver, 333 U.S. 257, 270 n.24 (1948);
350. see also JOHN HART ELY, DEMOCRACY AND DISTRUST 73-104 (1980);
351. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521;
352. The Supreme Court, 1979 Term, 94 HARV. L. REV. 75, 150-54 (1980).
353. DWORKIN, supra note 6, at 357.
354. Bordenkircher v. Hayes, 434 U.S. 357, 368 n.2 (1978) (Blackmun, J., dissenting) ("[I]t is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one.");
355. see also Misner, supra note 23, at 763 (prosecutors who use their resources inefficiently will be voted out of office); Weinstein, supra note 102, at 103 n.69 (prosecutors who abuse their power or use it ineffectively will be voted out).
356. Fred Zacharias advocated using the political check to rein in prosecutorial misconduct, but his trust in the effectiveness of the check applies equally in the broader context of checking all exercise of prosecutorial discretion. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 765 (2001).
357. Misner, supra note 23, at 717 ("In theory, the electorate holds decision-makers responsible for their actions. However, because of the current diffusion of responsibility, the electorate cannot easily scrutinize the actions of any one official or hold that official independently accountable for the successes or failures of the entire system. In fact, no one is currently held accountable for the successes or failures of the criminal justice system."). This concern echoes in part Justice Scalia's concern that the independent counsel was not accountable to the public. Morrison v. Olson, 487 U.S. 654, 731 (1988) (Scalia, J., dissenting).
358. Gordon &Huber, supra note 36, at 349-50.
359. BUTLER, supra note 61, at 4 ("In the United States, the rush to punish is out of control. In addition to the violent creeps I put away, I sent hundreds of other people to prison who should not be there."). Supreme Court of Missouri Judge Wolff explained recently that "sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer." Davey, supra note 47. The three-judge panel decision in Coleman v. Schwarzenegger bears on this prediction insofar as it relies on evidence that "conclusively showed that public safety would not be adversely affected by releasing low-risk, nonserious, nonviolent offenders from the prison system without placing them on parole supervision." Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *103 (E. &N.D. Cal. Aug. 4, 2009), enforced, 2010 WL 99000 (E. &N.D. Cal. Jan. 12, 2010), appeal docketed sub nom. Schwarzenegger v. Plata, No. 09-1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed, U.S. , 130 S.Ct. 3413 (2010). That supervising these offenders would not contribute to public safety also indicates that the benefit of prosecuting and incarcerating such offenders is not terribly high. Moreover, these crimes were not included on Vorenberg's list of highprofile crimes likely to stir up public interest. Vorenberg, supra note 16, at 1526-27.
360. Missouri's sentencing commission recently concluded that costs of sentences are a relevant factor in fashioning an appropriate sentence. See Davey, supra note 47.
361. Gershowitz, supra note 16, at 52 ("The United States incarcerates more offenders per capita than any industrialized nation in the world: three times more than Israel, five times more than England, six times more than Australia and Canada, eight times more than France, and over twelve times more than Japan.").
362. Liptak, supra note 150; Rough Justice, supra note 61 ("No other rich country is nearly as punitive as the Land of the Free.").
363. Gershowitz, supra note 16, at 52.
364. Sullivan, supra note 98.
365. Gershowitz, supra note 16, at 47.
366. Steiker, supra note 15. The incarceration rate remained steady from the mid-1920s through the mid-1970s, a period encompassing "the Roaring Twenties, the Great Depression, the run up to World War II, World War II itself, its aftermath, the Korean War, the civil rights movement, the tumultuous 1960s, and the Vietnam War."
367. Haney, supra note 162, at 102. "But in the mid-1970s everything began to change. Thus, after a half century of near-perfect stability, the rate of incarceration began its unprecedented and unremitting climb. Over the next twenty-five years alone, from the mid-1970s until 2000, a previously stable rate increased more than fivefold."
368. Id.
369. Too Many Laws, Too Many Prisoners, supra note 61, at 26 ("Justice is harsher in America than in any other rich country."). Craig Haney has identified what he terms a "War on Prisoners."
370. Haney, supra note 162, at 89. He contends that "we declared this War on Prisoners as a matter of political choice or preference, not necessity."
371. Id. at 102. Moreover, "governmental spending priorities shifted to accommodate the new prison realities."
372. Id. at 105. Yet, one cannot help but wonder whether, given the lack of effective political check, this is indeed our societal choice or merely a political choice meant to avoid the potential costs of appearing soft on crime.
373. See Beale, supra note 56, at 29 ("The epithet 'soft on crime' is the contemporary equivalent of 'soft on Communism.'").
374. E.g., BUTLER, supra note 61, at 4;
375. Too Many Laws, Too Many Prisoners, supra note 61, at 26;
376. Rough Justice, supra note 61, at 13.
377. Bibas, supra note 11, at 982.
378. Gary Fields, Hidden Costs: Communities Pay Price of High Prison Rate-Phoenix Neighborhood's Missing Men, WALL ST. J., July 10, 2008, at A1.
379. See BUTLER, supra note 61, at 19 ("There is a tipping point at which crime increases if too many people are incarcerated. The United States is past this point. If we lock up fewer people, we will be safer.");
380. id. at 31 ("[H]igher rates of incarceration were not a deterrent and may in fact have produced more criminals.");
381. Pritikin, supra note 61, at 1091 ("[A]ny further increases in incarceration beyond [2008] levels would actually create more crime than they would prevent.");
382. see also Coleman v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *83- 85 (E. &N.D. Cal. Aug. 4, 2009) (overcrowded prisons threaten rather than protect public safety), enforced, 2010 WL 99000 (E. &N.D. Cal. Jan. 12, 2010), appeal docketed sub nom.
383. Schwarzenegger v. Plata, No. 09-1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed, U.S. , 130 S.Ct. 3413 (2010);
384. Beale, supra note 56, at 31 (arguing that harsher enforcement continues even in the face of evidence that harsher sentences do not produce additional deterrence).
385. BUTLER, supra note 61, at 46. "Department of Corrections data show that about a fourth of those initially imprisoned for nonviolent crimes are sentenced for a second time for committing a violent offense. Whatever else it reflects, this pattern highlights the possibility that prison serves to transmit violent habits and values rather than to reduce them." Craig Haney &Philip Zimbardo, The Past and Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Experiment, 53 AM. PSYCHOLOGIST 709, 720 (1998);
386. accord Pritikin, supra note 61, at 1054-55.
387. See, e.g., BUTLER, supra note 61.
388. Henry K. Lee, Many Contra Costa Crooks Won't Be Prosecuted, S.F. CHRON., Apr. 22, 2009, at B1, available at http://articles.sfgate.com/2009-04-22/bay- area/17194086-1-prosecutedeputy- district-contra-costa-county. Crimes not prosecuted will include assaults, thefts, and burglaries. Contra Costa County may continue to prosecute some misdemeanors such as domestic violence, driving under the influence, firearms offenses, vehicular manslaughter, sex crimes and assault with a deadly weapon.
389. Id.
390. Similar decisions have been made in Ventura County, California, where prosecutors are treating possession of small amounts of marijuana and a handful of other misdemeanors as infractions subject only to a monetary fine. Theresa Rochester, Misdemeanors Becoming Infractions Under New County Guidelines, VENTURA COUNTY STAR, Mar. 17, 2009, http://www.vcstar.com/news/2009/mar/17/ misdemeanors-becoming-infractions-under-new/.
391. Wesley P. Hester, Chesterfield Prosecutor Says He Needs Additional Funds, RICHMOND TIMES DISPATCH, Mar. 24, 2009, at B1, available at http://www.timesdispatch.com/news/2009/mar/24/pros24-20090323-223024-ar-48533/.
392. Lynda Edwards, Justice Systems Sent Reeling, A.B.A. J., Jan. 2009, at 60, 61.
393. Id. at 61.
394. See, e.g., Malaika Fraley, Overwhelmed Contra Costa Prosecutors Pained by Looming Furloughs, CONTRA COSTA TIMES, Dec. 13, 2010, http://www. contracostatimes.com/ news/ci-16836846;
395. Press Release, Elizabeth A. Egan, Fresno County District Attorney, Statement by the District Attorney to the Fresno County Board of Supervisors (June 22, 2010), http://www.co.fresno.ca.us/uploadedFiles/Departments/District- Attorney/062210-DA Egan Speaks to BOS About Budget Cuts.pdf (speaking out against how budget cuts have forced the Fresno DA to reduce the size of her office)
396. Becky Purser, District Attorney's Office Not Immune from Furloughs, MACON.COM, Mar. 30, 2009, http://www.macon.com/2009/03/30/666154/ districtattorneys-office-not.html#.
397. Schwarzenegger, supra note 7.
398. A recent article contends that voters' support for tougher sentencing relies on voters' lack of awareness of costs. 2007 California Criminal Legislation: Meaningful Change, or Preserving the Status Quo, 13 BERKELEY J. CRIM. L. 97, 110-11 (2008). Fully informed voters might think differently.
399. Act of July 1, 2009, Act No. 266, 2009 La. Acts 2287;
400. Act of Mar. 3, 2009, ch. 316, 2009 Miss. Legis. Serv. 58;
401. Act of June 19, 2009, ch. 1251, 2009 Tex. Gen. Laws 3979.
402. Sullivan, supra note 98. California was judicially ordered to release inmates. Coleman v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351, 2009 WL 2430820, at *83-85 (E. &N.D. Cal. Aug. 4, 2009) (overcrowded prisons threaten rather than protect public safety), enforced, 2010 WL 99000 (E. &N.D. Cal. Jan. 12, 2010), appeal docketed sub nom. Schwarzenegger v. Plata, No. 09- 1323 (U.S. Apr. 14, 2010), and consideration of juris. postponed, U.S. , 130 S.Ct. 3413 (2010). The California legislature has complied. Act of Oct. 11, 2009, ch. 28, 2009 Cal. Stat. 4392.
403. Act of May 15, 2009, ch. 83, 2009 Minn. Laws 1024 (creating safety-valve from mandatory minimums); Act of Apr. 7, 2009, ch. 56, 2009 N.Y. Sess. Laws 128 (McKinney) (allowing for shorter sentences on drug crimes and expanding availability of substance abuse treatment programs to additional offenders);
404. Act of Nov. 13, 2009, ch. 346, 2009-4 R.I. Gen. Laws Adv. Legis. Serv. 742 (LexisNexis) (eliminating mandatory minimum sentences for drug possession charges).
405. Act of Sept. 12, 2009, ch. 67, 2009 Me. Laws 138.
406. Gershowitz, supra note 16, at 52 (citing MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA 1 (2006)).
407. Simpson, supra note 3.
408. Butler argues that massive incarceration expenditures are one reason why voters should care about the frequency with which we imprison people. BUTLER, supra note 61, at 34 (implying that voters care about the costs and opportunity costs of criminal law enforcement spending).
409. Attempting to predict which crimes would be less often prosecuted relies on the notion that "[t]here is indeed core agreement on ranking which offenders deserve the most punishment."
410. Bibas, supra note 11, at 982. Admittedly, this is less than an exact science.
411. Nonetheless, this prediction relies on the dramatic increase in incarceration of drug offenders over the past 30 years. "The number of people in jail and prison for drug violations increased from 50,000 in 1980 to almost 500,000 today."
412. Robert G. Lawson, Drug Law Reform-Retreating From an Incarceration Addiction, 98 KY. L.J. 201, 201 (2010) (quoting Ethan A. Nadelmann, Criminologists and Punitive Drug Prohibition: To Serve or to Challenge?, 3 CRIMINOLOGY &PUB. POL'Y 441, 442 (2004)). "[D]rug offenders constituted 20% of state prison inmates in 2006 and 52% of federal prison inmates in 2008."
413. THE SENTENCING PROJECT, FACTS ABOUT PRISONS AND PRISONERS (2010), available at http://www.sentencingproject.org/doc/publications/publications/ inc-factsAboutPrisons-Dec2010.pdf.
414. Sullivan, supra note 98;
415. Act of Mar. 24, 2009, ch. 96, 2009 Ky. Acts 1072, 1072 ("WHEREAS, over 80 percent of the persons involved in the Kentucky Criminal Justice System are there as a result, either directly, or indirectly of drug abuse.").
416. Sullivan, supra note 98.
417. Id.
418. Too Many Laws, Too Many Prisoners, supra note 61, at 26.
419. At the end of 2006 (the year of the most recent statistics available from the Bureau of Justice Statistics), drug offenders comprised approximately 20% of state prison inmates. WILLIAM J. SABOL ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISONERS IN 2008, at 37 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf. In New York, in 2005, drug offenders represented 35.7% of the prison population.
420. Weissman, supra note 2, at 249.
421. See SABOL ET AL., supra note 204, at 37 (stating that African-Americans comprise 44.2% of state prison inmates incarcerated on drug charges but only 36.7% of state prison population incarcerated on other charges as of year-end 2006).
422. Fields, supra note 181.
423. Id.
424. Weinstein, supra note 102, at 98. A recent article aptly recognized the tremendous nonmonetary costs of what the author calls the "War on Prisoners," including the indirect costs on inmates' dependents. Haney, supra note 162, at 88-90. The author expounds on these very human costs: The sheer number of people who have been touched by the experience of imprisonment is enormous. They are the direct and collateral casualties of the War on Prisoners that we have waged. For example, there are over one million people who come out of our prisons and jails each year, as a slightly larger number enters them⋯In addition to the enormous number of people who go in and out of our prisons each year, and the unprecedented number that languish for long sentences inside, there are numerous relatives and loved ones-including many children-who are directly impacted by their incarceration. They, too, struggle with the financial, familial, and interpersonal instability brought about by the incarceration of persons close to them. Personal, social, and economic resources are stretched thin as families, government agencies, and community organizations struggle to fill the void created by incarceration and to absorb the consequences of prisoners' eventual transition back into the neighborhoods where they once lived.
425. Id. at 89-90. More direct consequences attach to the inmates.
426. Id. at 107 ("[M]ost prisoners cannot leave the psychic scars of these experiences miraculously behind them upon release, just as most people cannot simply chose [sic] to set aside the aftereffects of damaging, traumatic events.");
427. Id. at 111 ("The stress of prison overcrowding likely interacts with and amplifies the pre-existing problems that prisoners may bring into the prison setting. For example, we know the risk factors and various forms of trauma that predispose persons to a range of psychological problems (including substance abuse, criminality, and violence), are prevalent in the pre-prison lives of incarcerated men and women.").
428. LAUREN E. GLAZE &LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SPECIAL REPORT, PARENTS IN PRISON AND THEIR MINOR CHILDREN 1 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pptmc. pdf; Press Release, Bureau of Justice Statistics, U.S Dep't of Justice (Aug. 26, 2008). These are the most recent statistics available from the Bureau of Justice Statistics.
429. GLAZE & MARUSCHAK, supra note 209, at 1.
430. Id. at 4 ("Among male state prisoners, violent (47%) and property (48%) offenders were less likely to report having children than public-order (60%) and drug (59%) offenders⋯For women held in state prison, violent (57%) offenders were less likely than drug (63%), property (65%), and public-order (65%) offenders to be a mother.").
431. Attorney General Eric Holder, in a 2009 speech, discussed some of these difficulties. Eric Holder, Att'y Gen., Attorney General Eric Holder at the Fatherhood Town Hall (Dec. 15, 2009), available at http://www.justice.gov/ag/ speeches/2009/ag-speech-091215.html ("And we know that children of incarcerated parents suffer from: the physical and emotional separation; the stigma associated with having a parent detained;
432. The loss of financial support; and the disruption caused by introducing new caregivers into a child's life, no matter how well meaning those caregivers may be. As a result, children of incarcerated parents often struggle with anxiety, depression, learning problems, and aggression, undermining their own chances of future success.").
433. Haney's recent article explained the long-term consequences that children of prisoners face. Haney, supra note 162, at 124.
434. See Brown, supra note 16, at 326.
435. Missouri judges are now able to attempt to strike a better cost-benefit balance at sentencing because they now have available information comparing the costs of various sentencing options for a particular defender. Davey, supra note 47.
436. Sullivan, supra note 98.
437. See id.
438. See id.
439. See id.
440. The Center for Court Innovation estimates that there are 2500 problem-solving courts in the U.S. Eileen Libby, Watch What You Ask For, A.B.A. J., Apr. 2009, at 24.
441. Similar programs have gained popularity in Taiwan recently, where prosecutors can defer prosecution conditioned on compliance with certain obligations. Margaret K. Lewis, Taiwan's New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms, 49 VA. J. INT'L L. 651, 676 (2009). This Taiwanese practice, placing the deferred prosecution decision in the hands of the prosecutor rather than a judge, was modeled after a similar Japanese practice and is used in approximately 13% of cases.
442. Id. at 676-78. A Canadian study concluded: [P]lacing low-risk offenders in often overcrowded high-security facilities resulted in high rates of reincarceration. The rates were significantly higher than those of comparable low-risk offenders who had been placed in halfway houses. The researchers concluded that the failure to properly divert low-risk offenders from high- to low-security facilities-something that overcrowded prison systems often lack the capacity to do-"may actually increase the risk of future recidivism."
443. Haney, supra note 162, at 120 (quoting James Bonta &Laurence L. Motiuk, The Diversion of Incarcerated Offenders to Correctional Halfway Houses, 24 J. RES. CRIME &DELINQ. 302, 311-12 (1987)). In addition to the psychological consequences, increased recidivism also results from medical conditions developed during incarceration in an overcrowded penal system and negative employment consequences resulting from long-term removal from the workforce and the stigma of conviction. Id. at 119, 122. If our incarceration choices cause more crime
444. see BUTLER, supra note 61, at 46;
445. Pritikin, supra note 61, at 1091, then broad reconsideration of the cost-benefit analysis underlying these choices is necessary.
446. Bibas considers the flourishing of such alternative programs as "reflecting the public's willingness to soften enforcement." Bibas, supra note 11, at 990. That may be true, but they also evidence a public concerned about effective law enforcement.
447. DIVERT stands for Dallas Initiative for Diversion and Expedited Rehabilitation and Treatment. Wade Goodwyn, Texas Court Aims to 'Divert' First-Time Offenders, National Public Radio (Aug. 15, 2008), available at http://www.npr.org/templates/story/story.php? storyId=93614135.
448. Id. Perhaps this recidivism rate is lower partly because DIVERT Court participants are firsttime offenders, but that fact does not seem to account for the entire disparity. Rather, there is good reason to think that imprisoning nonviolent offenders increases recidivism.
449. See BUTLER, supra note 61, at 46 ("What the War on Drugs means is that we've taken nonviolent offenders, exposed them to violent ones, and then reintroduced them to our communities⋯[P]rison serves to transmit violent habits and values rather than to reduce them.");
450. Pritikin, supra note 61, at 1054-55.
451. A study by the New York City Criminal Justice Agency showed that participants in alternatives to incarceration programs "were significantly less likely to be rearrested than people who received jail sentences." Weissman, supra note 2, at 243 (2009). Only 41% of alternative program participants were "rearrested, compared to fifty-three percent of people released from jail."
452. Id.
453. Goodwyn, supra note 220.
454. Id.
455. Id.
456. A drug court is a "special court given responsibility to handle cases involving drug-addicted offenders through extensive supervision and treatment programs⋯Rather than focusing only on the crimes drug offenders commit and the punishments they receive, drug courts attempt to address and solve the underlying causes of addiction." Frederick G. Rockwell III, The Chesterfield/Colonial Heights Drug Court: A Partnership Between the Criminal Justice System and the Treatment Community, 43 U. RICH. L. REV. 5, 7-8 (2008).
457. Several studies have concluded that participating in drug courts reduces recidivism. See id. at 16.
458. Id.
459. Non-graduates were convicted of 250% fewer offenses than were similarly situated offenders outside the program.
460. Id.
461. One recent estimate calculates the cost as at least $3 million per case. Martin Kaste, Opponents Focus on Cost in Death Penalty Debate, NAT'L PUB. RADIO (Apr. 1, 2009), http://www.npr.org/templates/story/story.php?storyId= 102570588.
462. Philip J. Cook, Potential Savings from Abolition of the Death Penalty in North Carolina, 11 AM. L. &ECON. REV. 498, 526 (2009).
463. Ratcliffe, supra note 153.
464. Kaste, supra note 229.
465. Id.
466. This concern stands in stark contrast to the eighteenth-century English system in which poor criminals had an advantage over wealthy ones because they were judgment proof. Friedman, supra note 24, at 490. Moving away from a system where wealthy defendants are less likely to face incarceration would be a clear improvement from a Rawlsian perspective because a person behind the veil of ignorance would not know whether she would be rich or poor and would thus hope for equal justice for those two populations.
467. See JOHN RAWLS, A THEORY OF JUSTICE 10-15 (rev. ed. 1999). Although most do not subscribe to this strict Rawlsian conception of justice, it seems quite likely that most Americans do nonetheless consider disparity between the amount of legal fairness afforded to rich and poor an injustice.
468. It bears reiterating here that prosecutors are not solely to blame for the current state of criminal law enforcement. See supra note 8. Nonetheless, this Article has focused on their decisionmaking processes as the last clear chance to halt the criminal justice mechanism.