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Is there any incentive for prosecutors to do the right thing?

Over at Sentencing Law and Policy, Doug Berman reports on a recent article wondering why prosecutors are rarely punished when they do illegal things.

According to Radley Balko at Reason, one prosecutor in Florida has put four men in prison who were later exonerated. That prosecutor is now on the bench hearing criminal cases.

Balko asks,

[a]s DNA exonerations continue to accumulate across the country, we’re left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect’s innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Balko isn’t just complaining in a vacuum, he notes that the Innocence Project identified prosecutorial misconduct as a significant cause of a false conviction in at least a quarter of its cases. None of those prosecutors have been subject to meaningful discipline.

This is yet another sad part of how the incentives for prosecutors line up in a way that is not consistent with the public interest.

Prosecutors are rewarded by career advancement and, in some cases, cash awards, for getting convictions. Prosecutors are not rewarded for exercising good judgment to decline to prosecute when they ought to, or to seek a lighter sentence when appropriate. Maybe prosecutors really do act in the public’s interest most of the time, but I don’t think we’d create an incentive structure like that in any other area of public life.

The rejoinder to this is that prosecutors, as public servants, will pull up and exercise their discretion well. Certainly that happens, and when it does it should be celebrated. But the incentives don’t line up to suggest that it will happen often. Why should such a prosecutor care that they did the right thing?

Our system relies on prosecutorial discretion, yet there is no meaningful incentive to develop or exercise good judgment as a prosecutor. And Balko argues that there is no reason to fear any meaningful punishment for bad behavior. With no carrot for behaving well, and no stick to punish behaving poorly, what kind of discretion should we expect from our nation’s prosecutors?

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