Rewarding Prosecutors for Performance

Prosecutorial discretion is a problem that most scholars attack from the outside. What forces should constrain or guide prosecutors to pursue the right numbers and types of cases, rank them well, treat them equally, behave ethically, invest appropriate effort, and seek fitting punishments? Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. As I have argued elsewhere, at best these approaches can catch the very worst misconduct. They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decision making. So what alternatives are there? There may be some underused external regulatory strategies, such as legislative oversight hearings. But the most promising alternatives work within prosecutors’ offices. Prosecutorial discretion poses a principal-agent problem, which requires measures to align prosecutors’ incentives with voters’, victims’, and defendants’ interests. This is a two-step process: first, head prosecutors must have incentives to serve their principals’ interests; second, head prosecutors must have tools to encourage their subordinates to do the same. I have previously discussed the importance of victim oversight, office culture, personnel practices, information sharing, and performance evaluation in this process. In a series of works, Ronald Wright and Marc Miller have examined prosecutorial self-regulation through internal office policies. In this symposium, Ronald Wright considers how well prosecutorial elections may discipline head prosecutors, aligning their self-interests in reelection with voters’ desires. Here I will explore another neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both