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Crime and Justice volume 41 (2012)
Prosecutors and Politics: A Comparative Perspective
By Michael Tonry
The University of Chicago PressCopyright © 2012 The University of Chicago
All rights reserved.
Prosecutors and Politics in Comparative Perspective
Prosecutors are potentially the most powerful figures in any country's criminal justice system. They decide what crimes to prosecute; whom to charge; what to charge; whether to plea-bargain, offer concessions, or divert a case; how aggressively to seek a conviction; and what sentence to propose. Police arrest people, but prosecutors decide whether those arrests lead to charges. Judges preside over trials and sentence convicted offenders, but only those whom prosecutors bring before them.
Police, courts, and corrections systems are much the same in all developed countries, but prosecutors differ radically. Police everywhere mostly wear uniforms, operate within paramilitary organizations, and devote most of their time to directing traffic, patrolling streets, responding to calls, investigating crimes, and apprehending offenders. Local police cultures vary a bit from place to place, as do uniforms, technologies, and organizational structures, but their functions do not.
Courts process cases, act as impartial fact finders and adjudicators, and decide on dispositions. Organizational charts vary, lay judges or juries may or may not be involved, and trial procedures differ, but the core functions and responsibilities are everywhere the same.
Probation, prison, and parole systems likewise are much the same everywhere. They may be well or poorly managed, brutal or humane, and more or less committed to rehabilitative aspirations, but their responsibilities are the same: to manage people convicted of crimes safely and securely, to supervise performance of conditions, to coordinate delivery of services, and to react appropriately when people under their control misbehave.
Individual police officers, judges, and correctional workers may be corrupt or incompetent or insensitive or biased, and institutions may be run poorly, but all those things are palpably undesirable and are everywhere seen as individual or institutional failings. In principle, all these officials and institutions, in every country, are expected to be apolitical, unbiased, and honest processors of offenses and offenders. They are expected to be neutral agents of the state, charged with evenhanded enforcement of law and processing of criminal cases.
Prosecutors are different. They are not everywhere the same. One fundamental difference concerns their relations to partisan politics and public opinion. In most developed countries, particularly in continental Western Europe, Canada, and Japan, prosecutors are resolutely nonpolitical and nonpartisan. They are expected to make decisions about individual cases on their merits, without regard to public attitudes, opinions, and emotions or to politicians' preferences or priorities. In the United States, however, local chief prosecutors in 45 states are elected (Perry 2006). In the federal system, US attorneys are appointed on the basis of partisan and sometimes ideological criteria. American prosecutors sometimes openly and unashamedly take media reactions, public opinion, and political considerations into account when deciding what cases to prosecute and how to handle them. In England and Wales, the director of public prosecutions and her senior advisors are political appointees. Lesser-ranking prosecutors are not elected or selected on partisan political grounds, but political appointees set priorities on the basis of government policy preferences and political interests.
Transparently political prosecutions occur in some places. In some Eastern and Central European countries, justice ministers use the prosecution service to settle political scores. This happened regularly in recent years in Poland (Krajewski, in this volume). Western governments repeatedly condemned politically motivated prosecutions in Ukraine of former prime minister Yulia V. Tymoshenko (Barry 2011) and in Russia of Kremlin opponent Mikhail B. Khodorkovsky (Schwirtz 2012). Political prosecutions are less common in traditionally democratic countries but not unheard of. The American presidential administration of George W. Bush initiated politically motivated prosecutions of Democratic state officials, most notoriously of former Alabama governor Don Siegelman (Nossiter 2008), and fired Republican US attorney David Iglesias in New Mexico and other US attorneys because they refused to initiate politically motivated prosecutions (Lichtblau and Otterman 2008; US Department of Justice 2008).
In most developed countries prosecutors are career civil servants, but they are not everywhere the same. In some countries, for example, in Sweden, Finland, and Germany, legal and professional norms predispose prosecutors to be evenhanded, reactive, case processors. In theory and to a considerable extent in practice, they base their decisions in individual cases solely on whether they believe that a crime has been committed, a particular individual committed it, and sufficient admissible evidence is available to justify a conviction. In others (the Netherlands, Japan, and the United States are well-known examples), prosecutors openly exercise discretion over what kinds of cases and which individuals to prosecute.
There are other important structural differences. In some countries, prosecutors are members of the judiciary. Individuals may serve as prosecutors and judges at different times in their careers. In some, they are part of the executive branch of government. In a few, including Norway and Denmark and until 1986 England and Wales, they are (or were) members of police departments. In most countries, prosecutors, although based in particular cities or towns, work for national (or state or provincial) agencies. In a few places, most notably throughout the United States, prosecutors work for local—city or county—governments. Local prosecution agencies in 47 of the 50 American states are headed by elected officials (Wright 2009), as are a few (e.g., Geneva) in Switzerland.
Those organizational differences make a huge practical difference in what prosecutors do and in the roles they play. In most of the developed world, prosecutors project an image of impartiality, objectivity, and insulation from political influence. Many US prosecutors proudly claim to reflect local political and cultural values—as the Boerner, Wright, and Miller and Caplinger essays in this volume make clear. That these vary widely, and therefore lead to stark differences within a state in how similar cases are dealt with, is seen as inevitable. Local prosecutors in recent decades often openly subscribed to "law and order" values, and many ran for office promising they would be tougher than their opponents (Gordon and Huber 2002). In contested prosecutorial elections, candidates tend to focus on prominent criminal trials and conviction rates rather than on less emotive issues (Wright 2009). An accumulating literature shows that impending elections sometimes cause changes in the behavior of elected judges and prosecutors. Research in Pennsylvania showed that elected trial judges became more punitive in their sentencing decisions as elections approached (Huber and Gordon 2004). Trial judges in some judicial districts in Kansas run in unopposed retention elections; judges in other districts run for reelection in partisan contests. Gordon and Huber (2007) showed that judges elected in partisan districts were more punitive than those in nonpartisan districts.
If judges, whose professional ethos includes impartiality, become more severe before elections, it would be astonishing if prosecutors did not. Bandyopadhyay and McCannon (2011) found in North Carolina that prosecutors' offices conducted five times as many jury trials (which in the United States are associated with harsher sentences than plea bargains or bench trials) in election years as in other years.
By contrast, prosecutors in many countries, for example, in Scandinavia, strongly believe that similarly situated offenders should be treated equally, or as close to equally as is humanly possible, no matter where within a country or by whom they are prosecuted. Petter Asp (in this volume) reports that Swedish judges, prosecutors, and newspapers would consider the existence of different sentencing patterns in Malmo and Stockholm to be fundamentally unjust: a principle of equal treatment requires that the state treat similarly situated citizens in the same way.
Remarkably little research is done on public prosecution within single countries, or on jurisdictions within them, or on differences between systems in different places. The European Commission for the Efficiency of Justice biennially publishes statistics for the Council of Europe on judicial and prosecutorial caseloads, case flows, and budgets and summarizes information on a variety of subjects (CEPEJ 2010). With the exception of a few book-length case studies of one or a few countries (e.g., Fionda 1995; Johnson 2002; Hodgson 2005) and a number of collections containing articles providing descriptions of different national systems (e.g., vander Beken and Kilchling 2000; Tak 2004; Jehle and Wade 2006; Jehle, Wade, and Elsner 2008), comparative knowledge about prosecution systems is largely anecdotal.
Despite its scantiness, the comparative literature makes it clear that the American system of public prosecution is unique in the world and in an important sense lawless. Discretionary prosecutorial decisions are for all practical purposes immune from judicial review. The existence in most states and the federal system of mandatory minimum sentence, three-strikes, and "repeat offender" laws means that prosecutors can routinely file or threaten criminal charges that would subject defendants to sentences that are disproportionately severe relative to the offenses for which they were arrested. Offers to dismiss such charges as a condition of a guilty plea to a different charge often are too good to be refused (e.g., Knapp 1991). Partly as a result, 95 percent or more of convictions result from plea bargains.
This means that a prosecutor, not a judge, determines which defendants, if any, warrant special consideration and which should serve disproportionately long prison sentences. Federal Court of Appeals Judge (and Columbia Law School professor) Gerald Lynch observed:
The prosecutor, rather than a judge or jury, is the central adjudicator of facts (as well as replacing the judge as arbiter of most legal issues and of the appropriate sentence to be imposed). Potential defenses are presented by the defendant and his counsel not in a court, but to a prosecutor, who assesses their factual accuracy and likely persuasiveness to a hypothetical judge or jury, and then decides the charge of which the defendant should be adjudged guilty. Mitigating information, similarly, is argued not to the judge, but to the prosecutor, who decides what sentence the defendant should be given in exchange for his plea. (Lynch 2003, pp. 1403–4)
Lynch suggests that the American criminal justice system now resembles the inquisitorial judicial systems of continental Europe, with the crucial difference that an adversary prosecutor rather than an impartial judge acts as fact finder and assessor of guilt and punishment for most cases.
The system Lynch describes is relatively recent. Before 1975, every American state and the federal system had an indeterminate sentencing system in which judges set maximum and sometimes minimum sentences but parole boards decided when prisoners were released (Rothman 1971; Blumstein et al. 1983, chap. 1). Mandatory minimum sentence laws were few in number and typically required either a minimum 1-year sentence or the addition of a 1-year increment if, for example, a gun was used (Tonry 2009). Plea bargaining was common, but the stakes were not high. If the judge had little control over the lengths of prison sentences, the prosecutor could not have much influence either.
All that changed after 1975 (Fisher 2003). Some states and the federal government abolished their parole boards, which meant that the sentences judges announced in those jurisdictions ceased to be nominal; less predictable reductions for good time (time off for good behavior), the sentence imposed determined the time spent in prison. Every American jurisdiction enacted new mandatory minimum sentence laws, more than half enacted three-strikes laws, more than half enacted "truth-in-sentencing" laws requiring that some offenders serve at least 85 percent of announced prison terms, and many enacted "career criminal" or "repeat offender" laws requiring lengthy minimum sentences for repeat offenders. A few jurisdictions, preeminently the federal system acting through the US Sentencing Commission, enacted "mandatory" sentencing guidelines (Tonry 2011, chap. 1).
Those changes tied judges' hands and shifted enormous power to prosecutors, as Albert Alschuler (1978) quickly recognized and predicted. The power to charge a provable offense subject to a mandatory minimum 10-year sentence or to a three-strikes law requiring a minimum sentence of 25 years to life is tantamount to the power unilaterally to sentence offenders. The power under the federal sentencing guidelines to select the cell in a guidelines matrix that will determine an offender's sentence is tantamount to unilateral power over sentencing.
The statutory changes were part of the "law and order" movement that sought to tie judges' hands and make sentencing harsher. David Boerner (1995), formerly deputy district attorney of King County (Seattle), Washington, pointed out that the transfer of power from judges to prosecutors was not inadvertent. Legislatures had much less worry that elected prosecutors would be "lenient" than that judges would be. Elected prosecutors are much more likely to pay attention to public attitudes and opinions, and the directions the political winds are blowing, than judges are.
Lynch (2003) is right in his description of the power of the prosecutor in many cases to determine both charge and sentence. The implications for the rule of law in American criminal courts are dire. European judges are nonpolitical, nonpartisan, nonadversary, and acculturated into professional values of neutrality, objectivity, and independence; their legal and sentencing decisions are subject to review by higher courts. None of those things is true of American prosecutors (K. Davis 1968; A. Davis 2007).
If prosecutors possess enormous power, as they do everywhere, and if they differ more greatly between jurisdictions than other criminal justice officials and agencies, as they do, we should want to know what differences those differences make. We don't. This essay surveys the intellectual topography of what we do know about prosecution systems and studies. Section I summarizes fundamental structural, normative, and policy characteristics and differences between national systems. Section II discusses important effects of those differences. Any rational, well-informed defendant facing prosecution somewhere would prefer that it happen anywhere except in the United States. Section III discusses explanations for the major differences and proposes ways in which more can be learned.
I. The Differences
There are formal differences between prosecution systems, and there are normative differences that influence day-to-day operations and decisions. Both are important.
A. Foundational Differences
Important differences derive from foundational characteristics of national legal systems. The most important are contrasts between continental European civil-law and Anglo-Saxon common-law systems, between systems characterized by the "legality principle" and the "expediency principle," and between countries in which political influence on criminal justice system operations is and is not considered legitimate. In legality principle jurisdictions, prosecutors officially have limited or no discretion in the handling of individual cases. In expediency principle jurisdictions, they do. These three contrasts move in parallel, but only partly. All common-law systems, for example, follow the expediency principle, but they differ over the legitimacy of political influence on prosecutorial decisions: Australia and Canada celebrate its absence, the English allow it, and Americans celebrate it.
1. Adversarial and Inquisitorial Systems The civil law/common law contrast is exemplified by competing images of "adversarial" and "inquisitorial" processes (e.g., Damaka 1975, 1986). In adversarial systems, the judge and jury in theory have no knowledge of the case. Competing counsel are legal gladiators. They present evidence and offer legal arguments favorable to their clients' interests, constrained only by evidentiary rules and injunctions against dishonest and unethical behavior. Detailed rules govern the admissibility of evidence in order to lessen the likelihood that lay jurors will be influenced by improper emotional considerations or unreliable evidence. The judge resolves legal issues and the judge or jury decides what happened and whether and of what the defendant is guilty.
Excerpted from Crime and Justice volume 41 (2012) by Michael Tonry. Copyright © 2012 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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