Comment on “The Independence of Prosecutors and Government Accountability”

Previous articleNext article FreeComment on “The Independence of Prosecutors and Government Accountability”Alexander LundbergAlexander Lundberg*Department of Economics, West Virginia University, Morgantown. Email: [email protected]. Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreMy goal in this comment is merely to provide context for the contribution of this work. Gutmann and Voigt lead with a quote by Garoupa (2012): “The economics of prosecutors is largely underdeveloped” (239). I agree. Game-theoretic models of the plea bargain are the only well-developed knowledge of prosecutor behavior, and even there, work remains to be done.Fortunately, economists do understand the importance of the prosecutor in modern society. Prosecutors wield tremendous discretion. They choose whether to file charges, what charges to file, and, with the power to negotiate guilty pleas for lesser sanctions, they largely determine what sentences citizens will receive. In a recent sample of 90 countries, 66 have instituted a trial waiver system in which defendants can waive their right to trial in exchange for lesser sanctions (Fair Trials 2017).In the international context, Gutmann and Voigt focus on two understudied features of prosecutor behavior. The first is prosecutor independence (similar to the independence of the judiciary from other government actors). The other is prosecutor accountability, as measured by the absence of prosecutor corruption. They find the latter mediates the impact of the former on the likelihood of formal charges against government officials who engage in misconduct. This finding is the key contribution over the only other empirical study on the relationship between prosecutor independence and charges against government officials (van Aaken, Feld, and Voigt 2010 ). Independence only increases the likelihood of charges when accountability is high.On a minor point, I might employ a different terminology for accountability here. The idea is that prosecutors may accept bribes to decline to file charges against powerful officials. Law enforcement can deter such bribes by holding prosecutors accountable. The empirical measure of “accountability,” which is based on a low perception of prosecutor corruption, should then go up. This line of thought is perfectly reasonable, but I might choose a term like “integrity” over accountability, even if only as a nod to the US system.To the best of my knowledge, the United States is unique in its predominant reliance on general elections for prosecutors, who are therefore accountable to voters. (Naturally, the strength of the accountability mechanism is debatable [e.g., Gordon and Huber 2009].) For better or worse, however, economic research on prosecutors has focused heavily on the United States. If the economics of prosecutors is largely underdeveloped, the economics of prosecutors in the international context is woefully underdeveloped. Gutmann and Voigt contribute to the literature by exploring the role of independence on prosecutor behavior, an already understudied topic, in an understudied global arena.In cross-country regressions, Gutmann and Voigt find independence only predicts the probability that a government official will be prosecuted for misconduct when perceptions of prosecutor corruption are low. The data come from surveys of legal experts in each country conducted by the World Justice Project. Respondents state whether they believe government officials would be prosecuted in cases of known misconduct. Separate questions address high government officials, legislators, police officers, local government officials, and mayors. For all but police officers, the conclusion is roughly consistent. As long as prosecutors are not too corrupt, the more independence they have, the more likely they are expected to prosecute government officials. Conveniently, the survey posits cases of misconduct with perfect evidence to convict, so any decision not to pursue charges must depend on extralegal considerations.For police officers, prosecutor independence has no effect on the decision to file charges, but accountability does. Loosely, this result is a reversal of those for other government officials. One explanation for the departure lies in the additional questions asked on police officers in the survey. For the other types of government officials, the hypothetical misconduct is financial in nature, as in bribery. For police, one scenario is financial, but another concerns severe physical harm inflicted on a suspect to obtain a confession, and a third asks respondents whether they believe police officers are generally prosecuted for any crimes they commit. For physical harm on a suspect and the general perception of police accountability, prosecutor corruption may carry more weight than independence in the decision to file charges. At least, if respondents believe so, then any effect of accountability in the regressions would likely outweigh any effect of independence because (1) the dependent variable is a mean average over all responses and (2) accountability and independence are highly correlated with each other.A more interesting possibility, as noted by the authors, is how the relationship between prosecutors and police differs from that of other government officials. I tend not to view prosecutors and police as members of a principal-agent relationship, however. I see the relationship as more cooperative. Unlike with other government officials, prosecutors have regular interactions with the police by necessity. According to the American Bar Association (2019), prosecutors should seek justice, not convictions. I believe most prosecutors and police do seek the goal of justice. They also have no choice but to rely on each other. Prosecutors rely on police to identify and apprehend offenders, and police rely on prosecutors to convict those offenders. For one illustration of the collaboration, a number of jurisdictions are experimenting with police involvement in the plea bargain process (Abel 2017). In addition, in low-level offenses, prosecutors rarely decline to charge individuals arrested by police, suggesting substantial agreement between the two parties (Natapoff 2015).Although the nature of the police-prosecutor relationship may vary by country, I suspect the respondents in the survey rightly distinguish the relationship from those of prosecutors with other government officials in general. Independence is simply not a big factor in determining whether prosecutors file charges against police officers. Rather, a sense of integrity, which overcomes the risk of alienating those in a close working relationship, determines whether prosecutors file charges against police officers. At the very least, the empirical results are consistent with such a story. This is another reason I think prosecutor “integrity” rather than “accountability” might be a better term here.Returning to a broader perspective on prosecutor independence, I think Gutmann and Voigt take a step forward in demonstrating the topic is worthy of study. Data limitations in any cross-country regression are clear, but the results here do suggest independence shapes prosecutor decision making. Of course, the conclusion is inferred from perceptions of prosecutor behavior in surveys of legal experts. The next step forward would be a test of how actual prosecutor behavior responds to independence.To achieve that next step, the definitions of independence and accountability will require more precision. A conceptual model may be helpful. To me, the two concepts overlap, and their boundaries are vague. In some cases, a prosecutor may be accountable to a specific government official, as with US attorneys and the president, who retains the discretion to appoint and dismiss them. A conceptual model would help identify when and where independence and accountability can be distinguished from each other and, as with US attorneys, where they cannot be. Even if “accountability” is narrowly defined to mean prosecutors face criminal repercussions for bribery, an absence of accountability may not guarantee corruption in jurisdictions with cultures of high integrity.Despite their ambiguity, I have no doubt that independence and accountability do influence prosecutors. If they can be defined more precisely, future research will be able to better identify the extent of their influence. The question is clearly relevant, even urgent, as calls for criminal justice reform spread across the United States and the world. Again, I commend Gutmann and Voigt for addressing prosecutors in the international context. Independence is an even greater topic of importance for many countries with less stable political institutions where corruption is relatively widespread. I look forward to future research on the subject.ReferencesAbel, Jonathan. 2017. “Cops and Pleas: Police Officers’ Influence on Plea Bargaining.” Yale Law Journal 126 (6): 1730–87.First citation in articleGoogle ScholarAmerican Bar Association. 2019. “ABA Criminal Justice Section.” https://www.americanbar.org/groups/criminal_justice/#1.4.First citation in articleGoogle ScholarFair Trials. 2017. “The Disappearing Trial.” https://www.fairtrials.org/sites/default/files/publication_pdf/Report-The-Disappearing-Trial.pdf.First citation in articleGoogle ScholarGaroupa, Nuno. 2012. “The Economics of Prosecutors.” In Research Handbook on the Economics of Criminal Law, edited by Alon Harel and Keith N. Hylton, 231–42. Cheltenham: Edward Elgar.First citation in articleGoogle ScholarGordon, Sanford C., and Gregory A. Huber. 2009. “The Political Economy of Prosecution.” Annual Review of Law and Social Science 5:135–56.First citation in articleCrossrefGoogle ScholarNatapoff, Alexandra. 2015. “Misdemeanors.” Annual Review of Law and Social Science 11:255–67.First citation in articleCrossrefGoogle Scholarvan Aaken, Anne, Lars P. Feld, and Stefan Voigt. 2010. “Do Independent Prosecutors Deter Political Corruption? An Empirical Evaluation across Seventy-Eight Countries.” American Law and Economics Review 12 (1): 204–44.First citation in articleCrossrefGoogle Scholar Previous articleNext article DetailsFiguresReferencesCited by Supreme Court Economic Review Volume 272019 Sponsored by the Antonin Scalia Law School, George Mason University Article DOIhttps://doi.org/10.1086/705362HistoryPublished online December 03, 2019 © 2019 by the University of Chicago. All rights reserved.PDF downloadCrossref reports no articles citing this article.