The Black Box
63 Pages Posted: 6 Sep 2008
Date Written: September 5, 2008
Classic accounts of prosecutorial discretion, from Herbert Wechsler through the present day, portray charging discretion as the antithesis of law. Scholars express particular concerns about racial and other nefarious grounds for prosecution, while others worry about the increased range of choices available to prosecutors when criminal codes become bloated with new crimes.
The familiar response to this problem features a call for greater external legal regulation. The external limits might come from judges who review prosecutorial charging decisions, or from legislatures reworking the criminal code. These external oversight projects, however, have failed.
This article explores some facets of internal regulation - efforts within prosecutors' offices to control and legitimize prosecutorial discretion. Based on remarkably detailed data from New Orleans and observations from several other major cities, we are able to examine the inner working of prosecutors' offices - the black box - to learn about the reasons prosecutors give for their declinations. The long-delayed arrival of the information age to prosecutors' offices allows us to understand more about the internal regulatory forces within those offices.
Our thesis is simple but profound: the internal office policies of thoughtful chief prosecutors can produce the predictable choices, respectful of legal constraints, that lawyers expect from traditional legal regulation. The reasons prosecutors give for their charging decisions show the influence of substantive and procedural legal doctrines and the policy priorities of supervisors - all sources that one would expect to dominate in a system that respects the rule of law. Moreover, these reasons show prosecutors responding to social norms, living up to group expectations about what it means to be a prosecutor in that particular office.
The internal norms of prosecutors differ from other social norms recognized and studied by legal scholars because they grow and operate within a government organization. Norms within government organizations are far more susceptible to design changes than social norms in public and private groups.
The key virtue of social norms within a prosecutor's office is transparency. Internal regulations deserve respect when they expose the prosecutor's black box to scrutiny and accountability.
Keywords: prosecutorial discretion, prosecutor, external legal regulation, internal legal regulation, social norms
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