Inside the Black Box of Prosecutor Discretion

76 Pages Posted: 28 Jul 2021 Last revised: 27 Apr 2022

See all articles by Megan S. Wright

Megan S. Wright

The Pennsylvania State University (University Park) – Penn State Law

Shima Baradaran Baughman

University of Utah - S.J. Quinney College of Law

Christopher T. Robertson

Boston University; University of Arizona - James E. Rogers College of Law

Date Written: July 26, 2021


In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what sorts of limits, supervision, or guidelines prosecutors work within. And we do not know what types of information prosecutors rely upon when making their decisions. Prosecutors’ decisions have accordingly been called a “black box” for their inscrutability.

Until now. We recruited over 500 prosecutors nationwide, and had them charge an identical case given identical substantive law, specify the plea bargain terms they would seek, and explain their decisions. We also learned about their internal office guidelines and procedures, and the information they rely upon when making charging and bargaining decisions.

Our study tells a story of surprising severity in how prosecutors dispose of a relatively mild case with no harm to victims, creating potentially devastating consequences for an offender suffering from apparent mental illness. Taking advantage of our vignette-survey design, which presents the exact same case to hundreds of prosecutors, we also document wild heterogeneity in prosecutor charging practices, with some dismissing the case out of hand and others demanding months or years of incarceration. We also find that many prosecutors lack meaningful guidelines or supervision. Nonetheless, in our review of their qualitative explanations, we also find prosecutors aspiring to do justice, concerned about harm to victims and the rehabilitation of offenders, and considering the offender’s mental health and financial wherewithal. From these findings, we shed light in an otherwise theoretically rich but empirically lacking area of criminal scholarship.

The National Prosecutor Survery can be accessed at:

Keywords: prosecutors, charging, crime, sentencing, discretion, empirical legal studies, mass incarceration, prison, decision making

Suggested Citation

Wright, Megan and Baughman, Shima Baradaran and Robertson, Christopher T., Inside the Black Box of Prosecutor Discretion (July 26, 2021). 55 UC Davis Law Review 2133 (2022), Penn State Law Research Paper No. 19-2021, University of Utah College of Law Research Paper No. 459, Available at SSRN:

Megan Wright (Contact Author)

The Pennsylvania State University (University Park) – Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

Shima Baradaran Baughman

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Christopher T. Robertson

Boston University ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
6179100649 (Phone)
02215 (Fax)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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