Prosecutorial Discretion under Resource Contsraints

By Goelzhauser, Greg | Judicature, January/February 2013 | Go to article overview
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Prosecutorial Discretion under Resource Contsraints

Goelzhauser, Greg, Judicature


Do prosecutorial resource constraints influence death-charging decisions? Using new data on death-charging decisions from 301 prosecutorial districts across 34 states, the results presented here suggest that the conventional wisdom is wrong. The probability of facing a death charge is higher in prosecutorial districts with larger budgets. The results inform our understanding of the politics of prosecutorial behavior and the policy debate over capital punishment.

When asked whether resource constraints would influence his decision to seek the death penalty, local prosecutor Steve Tucker said that filing a death charge "is about seeking justice" and that resources do "not play into [the decision] at all."1 Although some local prosecutors admit that budget constraints necessitate fewer death charges,2 the prevailing view among practitioners is that resources do not influence their decision-making in prospective capital cases.3 Although scholars have offered competing anecdotes concerning the relationship between budgets and deathcharging decisions, the limited empirical evidence (from a single state) supports the conventional wisdom that resource availability does not influence prosecutorial decision-making.4 However, the importance of the question and lack of available data led one schoiar to contend that "[a] careful consideration of the impact of budgets. ..on prosecutorial charging decisions is long overdue."5 This article begins to fill this gap in the literature by examining the relationship between budget constraints and deathcharging decisions, while locating the discussion within the broader theoretical literature on prosecutorial behavior.

The relationship between budget constraints and death-charging decisions has important policy implications. Some scholars contended that a death-charging decision based on resource availability is arbitrary and capricious, thereby violating the defendant's constitutional rights.6 Moreover, basing death-charging decisions on budget constraints may contribute to the perception that the implementation of capital punishment resembles a "geographic lottery."7 Many reforms have been proposed for mitigating the impact of this geographic lottery, but the merit of these proposals will ultimately be judged by empirical evidence concerning the extent to which such a lottery exists.

The question of whether prosecutorial decisions are based on extralegal factors is also of special interest to law and courts scholars. The local prosecutor has been called "the single most powerful figure in the administration of criminal justice."8 This singular power derives from the extraordinary discretion that prosecutors have to decide whether to bring charges against criminal suspects and which charges to bring. To constrain this "practically unlimited discretion,"9 the American Bar Association's rules of professional responsibility require prosecutors to "seek justice."10 But the extent to which local prosecutors remain faithful to this command remains unclear.

Law and courts scholars have devoted comparatively little attention to local prosecutors notwithstanding their prominence in the criminal justice system.11 This is particularly unfortunate because many of the theoretical issues concerning prosecutorial behavior, such as the exercise of discretion and demands of political accountability, are central to the study of other political institutions. Although scholars have made substantial progress studying other prosecutors, including United States Attorneys12 and state attorneys general,13 it is important to further develop our understanding of local prosecutorial behavior. This article contributes to the study of prosecutorial behavior and the policy debate over capital punishment by presenting the first systematic empirical analysis of the relationship between budgets and death-charging decisions. Using data on death-charging decisions in 2004 and 2005 from 301 prosecutorial districts across 34 death penalty states, the results suggest that larger budgets are associated with an increased likelihood of prosecutors seeking death.

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