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Article Excerpt
INTRODUCTION
I. THE PROSECUTOR AS LEVIATHAN A. The Danger B. The Path to Unchecked Power II. THE ADMINISTRATIVE LAW MODEL A. Internal Separation B. Other Checks on Agency Power III. REDESIGNING THE PROSECUTOR'S OFFICE IV. THE POLITICS OF REFORM A. Other Mechanisms for Checking Prosecutorial Power 1. Judicial oversight 2. Limit plea bargaining or charging discretion 3. Greater legislative or public oversight 4. Prosecutorial guidelines or open processes B. The Benefits of Using Internal Separation CONCLUSION
INTRODUCTION
It is hard to overstate the power of federal prosecutors. The number of federal criminal laws has exploded in recent decades, (1) and the punishments attached to those laws have increased markedly. (2) There are now approximately 200,000 federal prisoners, (3) making the federal prison system the largest in the country, eclipsing each and every state. (4)
Federal prosecutors control the terms of confinement in this vast penal system because they have the authority to make charging decisions, enter cooperation agreements, accept pleas, and recommend sentences. In the current era dominated by pleas instead of trials, federal prosecutors are not merely law enforcers. They are the final adjudicators in the vast majority of cases. (5) It is only in the rare 5% of federal cases that go to trial that an independent actor reviews prosecutorial decisions. (6) In the 95% of cases that are not tried before a federal judge or jury, there are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion to bring charges, to negotiate pleas, or to set their office policies. (7) In a national government whose hallmark is supposed to be the separation of powers, federal prosecutors are a glaring and dangerous exception. (8) They have the authority to take away liberty, yet they are often the final judges in their own cases. (9)
One need not be an expert in separation-of-powers theory to know that combining these powers in a single actor can lead to gross abuses. Indeed, the combination of law enforcement and adjudicative power in a single prosecutor is the most significant design flaw in the federal criminal system. Standard judicial and legislative oversight has failed to correct this power grab by prosecutors. Despite the arguments of scholars for greater judicial supervision, (10) federal judges continue to rubber stamp cooperation, charging, and plea decisions. (11) Similarly, although commentators have called on Congress to rein in prosecutorial discretion with federal criminal code reform (12) and the repeal of mandatory minimum sentences, (13) members of Congress lack the incentives to enact these reforms as long as they reap political rewards for looking tough on crime. (14) Although scholars have made persuasive cases for these reforms, they are simply unrealistic in the current political climate. The solution must be sought elsewhere.
This Article looks within the prosecutor's office itself to identify a viable corrective on prosecutorial overreaching. In particular, by heeding lessons of institutional design from administrative law, this Article considers how federal prosecutors' offices could be designed to curb abuses of power through separation-of-functions requirements and greater attention to supervision. (15) The problems posed by federal prosecutors' combination of adjudicative and enforcement functions are the very same issues raised by the administrative state--and the solutions fit equally well in both settings. In both instances, individuals who make investigative and advocacy decisions should be separated from those who make adjudicative decisions, the latter of which should be defined to include some of the most important prosecutorial decisions today, including charging, the acceptance of pleas, and the decision whether or not to file substantial assistance motions. Using this model from administrative law is not only sensible, it is more politically viable than the leading alternative proposals for curbing prosecutorial discretion.
Part I begins by describing the combined law enforcement and adjudicative powers of federal prosecutors, thereby laying the groundwork for why an institutional check on prosecutorial power is needed. Part II explains that the dangers posed by the combination of law enforcement and adjudicative power are hardly new to the federal system; rather, as Part II describes, the very same risks are posed by traditional administrative agencies. A central mission of administrative law is to design checks on agency overreaching in light of these combined powers. Part III then explores how the traditional regulatory agency model of internal separation could be effectively and feasibly applied to the prosecutor's office. Part IV considers the administrative and political viability of using institutional design to check prosecutors and explains the advantages of using functional separation within the office over other means of checking prosecutorial power that have been the subject of scholarly attention.
I. THE PROSECUTOR AS LEVIATHAN
Numerous scholars have chronicled and critiqued the expansion of federal criminal law. (16) Federal criminal laws govern a huge sweep of conduct, (17) and the punishments are often severe. (18) In theory, federal prosecutors stand as the gatekeepers to ensure that these laws are properly applied and are used judiciously. That is, prosecutors working in United States Attorneys' Offices should ensure that no matter how broadly a criminal statute is worded, it is not applied except in those instances where a defendant is actually blameworthy. These prosecutors should also make sure that a law is not applied to a given case if the punishment dictated by the law would be excessive. (19) Federal prosecutors have an additional responsibility to ensure that federal involvement is the proper course and that a matter should not be pursued by state prosecutors instead. (20)
Unfortunately, as Subpart A explains, there is currently little to no oversight of federal prosecutors to ensure that these considerations are taken seriously. Subpart B takes up the question of why supervisory mechanisms have not been put in place.
A. The Danger
Federal prosecutors are the prototypical executive official. (21) There are ninety-three United States Attorneys, who are appointed by the President with confirmation by the Senate, (22) and they work with Assistant United States Attorneys, who are hired without Senate confirmation. (23) Each of these prosecutors is charged with investigating and enforcing federal criminal laws. Because there is discretion about whether and which charges to bring in a given case, (24) this law enforcement function carries enormous power over individuals' lives. (25)
If prosecutors exercised only this executive power, their authority would be broad, but, from a constitutional and governance perspective, unremarkable. Today, however, federal prosecutors' power goes beyond law enforcement. At the federal level, just as in the states, most criminal cases are resolved without ever going to trial. (26) Plea bargaining--whether over charges or sentences--is the norm. (27) This means that a prosecutor's decision about what charges to bring and what plea to accept amounts to a final adjudication in most criminal cases. Because numerous federal laws govern similar behavior and are written broadly, (28) prosecutors often have a choice of charges, which often, in turn, means a choice of sentence as well. (29) With the prevalence of mandatory minimum laws, a prosecutor's decision to bring or not bring charges can dictate whether a defendant receives a mandatory five-, ten-, or twenty-year term, or whether he or she is sentenced far below that floor. (30) The United States Sentencing Guidelines, like mandatory minimums, have also increased prosecutorial leverage by curbing judicial sentencing discretion. They have prompted more pleas and fewer trials. (31) Although recent Supreme Court decisions have revamped federal sentencing law to relax the effect of the United States Sentencing Guidelines, (32) in the vast majority of cases judges continue to sentence according to the Guidelines or depart only with a government motion, (33) the chief basis for a departure being that a defendant has provided substantial assistance to the government. (34) A claim of substantial assistance is also the only way for most defendants to avoid a mandatory minimum statutory term, (35) and that also requires a motion from the prosecutor. (36) In most cases, then, the prosecutor becomes the adjudicator-making the relevant factual findings, applying the law to the facts, and selecting the sentence or at least the sentencing range. (37)
If a defendant could costlessly take his or her case to trial, the prosecutor's role in charging and accepting pleas would be less remarkable. After all, if a defendant could exercise his or her jury trial rights without penalty, then all the charging and bargaining would take place in the shadow of that trial regime, and presumably the prosecutor's freedom would be bounded by the expected outcome at trial. Put another way, the prosecutor could not demand more than what the defendant would expect to receive at trial, so the real adjudicative power would remain with a court and with a jury.
But going to trial is far from costless for defendants. As an initial matter, defendants face stiffer sentences--often significantly stiffer sentences--if they opt to go to trial instead of pleading guilty. In Bordenkircher v. Hayes, (38) the Supreme Court held that the Constitution does not prohibit prosecutors from threatening defendants with more serious charges if they exercise their trial rights. In that case, for example, the Court upheld a prosecutor's decision to offer to recommend a five-year sentence to the judge if the defendant pleaded guilty but to bring charges subjecting the defendant to a mandatory life sentence if the defendant opted for trial. (39) Although this kind of threat would otherwise seem to impose an unconstitutional condition on the exercise of a defendant's jury trial rights, (40) the Court accepted this coercive power because it believed that plea bargaining was an entrenched practice that was necessary to keep the courts from being overwhelmed with criminal cases. (41) The practical effect of the Court's decision was to give prosecutors the ability to exact a heavy price on defendants who opt to take a case to trial in order to get them to plead guilty to the charge the prosecutor believes is the appropriate one. After Bordenkircher, "[p]rosecutors have a strong incentive to threaten charges that are excessive, even by the prosecutors' own lights." (42) And prosecutors have taken advantage of the opportunity. (43)
Congress, in turn, now legislates with precisely this framework of prosecutorial power over pleas in mind. Representatives from the Department of Justice and the various United States Attorneys' Offices often argue before Congress that legislation with inflated or mandatory punishments should be passed or retained because those laws give prosecutors the leverage they need to exact pleas and to obtain cooperation from defendants. (44) Congress continues to pass mandatory minimum sentencing laws even though there is uniform agreement by experts--including the United States Sentencing Commission--that these laws are unwise and lead to greater disparity in practice because of the power they vest in prosecutors. (45) Members of Congress support these laws because they do not want to be viewed as soft on crime or resistant to prosecution demands.
Congress therefore routinely passes laws with punishments greater than the facts of the offense would demand to allow prosecutors to use the excessive punishments as bargaining chips and to obtain what prosecutors and Congress would view as the more appropriate sentence via a plea instead of a trial. (46) Pleas and cooperation with the government are the preferred norm, not the exception. For example, although the criminal code has a range of mandatory minimum offenses, it also has a provision that allows prosecutors--and prosecutors alone--to exempt defendants from those mandatory punishments if the prosecutor concludes that the defendant has offered the government substantial assistance. (47) No one expects the maximum punishment established by statute to be imposed in the ordinary case, and even mandatory minimums can be altered by prosecutors through bargaining. As a leading casebook on criminal law has observed, "[c]riminal statutes now commonly permit (or purport to require) draconian punishments that no one expects to be imposed in the typical case" such that "'[l]eniency' has therefore become not merely common but a systemic imperative." (48)
The result of the Court's rulings and Congress's response is that prosecutors can exact such a high price on defendants who pursue their trial rights that the trial right becomes too costly to exercise. At the federal level, defendants who refuse to waive their right to a jury trial receive an average sentence three times longer than those who plead. (49) Although this might reflect, in part, substantive differences between the cases that go to trial and those that plead out, even conservative estimates of the acceptance of responsibility discount at the federal level show a roughly 35% sentence reduction for that factor alone. (50) As Ronald Wright has shown, districts where prosecutors make the greatest use of acceptance of responsibility and substantial assistance discounts have more guilty pleas and fewer acquittals than districts that do not use these mechanisms as frequently. (51) Thus, as he concludes, prosecutors use their leverage to "convince[] defendants to plead guilty and to opt out of trials that might have ended in acquittals." (52) When prosecutors have this kind of leverage, considerable adjudicative power inevitably transfers from judges and juries to the prosecutors.
An additional factor further erodes the ability of defendants to take cases to trial. Defendants and their lawyers often have divergent interests when it comes to bargaining with prosecutors. The vast majority of federal criminal cases involve indigent defendants. (53) These defendants are often appointed counsel who are paid either "a flat fee per case, or a low hourly rate coupled with a ceiling on total compensation payable." (54) Because the court-appointed lawyers are typically paid below-market rates for their services, (55) any time spent on an indigent's defendant's case is less financially rewarding than time spent on the cases of paying clients. For lawyers with other client options, then, the faster the case involving the indigent client proceeds, the better off these lawyers are, so trials are not in their economic interest and there is a greater incentive to plead. For lawyers that rely on Criminal Justice Act (CJA) wages because they have few or no other clients, they may have more of an incentive to prolong cases to increase their fees, but they usually face a cap on overall wages that would not cover the full cost of a trial. (56) Some indigent defendants have public defenders as their counsel, and although the incentives between the lawyers and clients match more closely in that situation, even there they are not perfectly aligned. Public defender offices are woefully underfunded and understaffed, (57) so there is a limit on how many cases they can credibly threaten to take to trial. Finally, even when a defendant can afford to retain counsel, in most cases the lawyer is paid a flat fee in advance. (58) These lawyers therefore have an incentive to resolve the case as quickly as possible to maximize the financial return on their time, which may lead them to pursue a plea.
As a result of these pressures and costs of exercising trial rights, the trial is an insufficient check on prosecutorial power. With his or her power to choose from a range of federal criminal laws, to exercise significant leverage over defendants to obtain pleas and cooperation, and to control the sentence or sentencing range through charging decisions, the prosecutor combines enforcement and adjudicative power.
This combination of power in one actor is troubling because it puts prosecutors in a position to judge their own cause--the classic threat to the rule of law. John Locke put it best: when people act as judges in their own case, they tend to be "partial to themselves and their friends" and to allow "ill-nature, passion and revenge [to] carry them too far in punishing others." (59)
Prosecutors who investigate a case are poorly positioned to make a final assessment of guilt because they cannot view the facts impartially. After investing time and effort in pursuing a particular defendant, the prosecutor cannot view the facts as a neutral party. Indeed, to admit that the defendant is not culpable is to admit that all of the prosecutor's efforts were wasteful. A prosecutor who will be the advocate for the government's position at trial is similarly in a poor position to make adjudicative decisions about the defendant because those decisions will be colored by the prosecutor's self-interest. Prosecutors may feel the need to be able to point to a record of convictions and long sentences if they want to be promoted or to land high-powered jobs outside the government, (60) and that will affect their assessment of a defendant's case. If the prosecution wants to avoid what will be a difficult or long trial but keep up his or her conviction rate, he or she has an incentive to threaten defendants with inflated charges if they exercise their trial rights to extract a plea.
The consolidation of adjudicative and enforcement power in a single prosecutor is also troubling because it creates an opportunity for that actor's prejudices and biases to dictate outcomes. (61) It is hard to ignore the racially skewed composition of the federal prison population. Nearly 40% of the federal prison population is black and almost a third is Hispanic. (62) One in every nine black males between the ages of 20 and 34 is incarcerated. (63) While a variety of factors likely have contributed to the disproportionate percentage of black men in federal prison, it is certainly possible that unchecked prosecutorial discretion over enforcement and adjudication could be a contributing cause. Indeed, researchers have found that, even after controlling for legally relevant factors, race and gender affect charging and sentencing decisions. (64) Consolidating all the important decisions in a criminal case with one actor who faces no outside check creates the risk that improper factors will enter the decision-making calculus without being exposed.
B. The Path to Unchecked Power
Federal prosecutors have not always possessed such sweeping powers. As an initial matter, federal criminal law itself was a limited category for much of the nation's history. Federal criminal law barely existed prior to 1896. Indeed, there was no federal penitentiary before that date. (65) In the early years of federal criminal law, it was therefore reasonable to expect most cases to go to trial because that would not tax the system. (66) For many years, then, the criminal trial served as the vehicle for overseeing prosecutorial power, with independent life-tenured judges presiding and jurors drawn from the community rendering verdicts.
Over time, however, federal criminal law expanded. After the Civil War, Congress passed criminal laws prohibiting mail fraud and other crimes involving interstate commerce. (67) A much bigger increase in federal criminal jurisdiction occurred with the passage of the Eighteenth Amendment and Prohibition. (68) In 1929, the director of the Bureau of Prisons highlighted the "great increase in Federal crime" and "a transference of many offenses from the states to the Federal government." (69) The New Deal era saw another crop of newly enacted federal criminal laws, including the provision of criminal punishment for regulatory violations. (70) The largest boom in federal criminal law is the most recent. Since the 1970s, federal criminal law has exploded. "More than 40% of the federal criminal provisions enacted since the Civil War have been enacted since 1970," and "more than a quarter of the federal criminal provisions enacted since the Civil War have been enacted within a sixteen year period since 1980." (71)
As federal criminal laws increased, so did the number of cases. (72) This put pressure on federal resources and led to cases being disposed of by pleas instead of trials. (73) Prohibition provides an obvious example. As Dan Richman has observed, it forced U.S. Attorneys "to scale up their operations" and "compromise[] cases at fire-sale prices." (74)
As trials yielded to pleas in the face of resource pressures, some experts called attention to the power that vested in prosecutors. The Prohibition-era, post-World War I expansion, for instance, prompted some commentators to point out the changing role of prosecutors. (75) Thus in 1931, a report by the National Commission on Law Observance and Enforcement observed that "[i]n every way [the prosecutor] has much more power over the administration of criminal justice than judges, with much less public appreciation of his power. We have been ... careless of the continual growth of the power in the prosecuting attorney." (76) Thurman Arnold similarly argued that "[t]he idea that a prosecuting attorney should be permitted to use his discretion concerning the laws which he will enforce and those which he will disregard appears to the ordinary citizen to border on anarchy." (77) The Wickersham Commission, created by the federal government to study criminal justice in the United States, likewise criticized the lack of meaningful checks on prosecutorial power and discretion. (78)
Despite these calls for reform, nothing was done to check this power either in Congress or on the Supreme Court. On the contrary, subsequent years "witnessed a dramatic expansion of the power and prestige of prosecutors" (79) without any corresponding checks. Congress, as noted, expanded prosecutorial discretion by passing additional criminal laws and enacting mandatory minimum penalties and the Sentencing Guidelines. (80)
Perhaps more surprising, though, was the Supreme Court's reaction to the changing role of the prosecutor. As plea bargaining began to take over the federal criminal justice system, the Supreme Court all but ignored abuses associated with plea bargaining and focused instead on ensuring protections in trials. While the Warren and Burger Courts recognized expansive Fourth and Fifth Amendment rights, (81) they failed to establish protections for defendants who pleaded instead of taking a case to trial. Santobello (82) explicitly endorsed plea bargaining as a matter of administrative convenience. (83) Indeed, the Court believed plea bargaining should be "encouraged" as "an essential component of the administration of justice." (84) That "encouragement" included the Court in Bordenkircher giving permission to prosecutors to threaten punishments orders of magnitude longer if a defendant exercised his or her trial rights. (85) Later, in Armstrong, the Court emboldened prosecutors still further by making claims of selective or discriminatory prosecution almost impossible to bring. (86)
The Supreme Court's criminal procedure revolution, then, fell far short when it came to addressing the criminal justice system that had emerged by the 1960s and 1970s. The Court chose not to oversee coercive plea-bargaining tactics that made the defendant's decision to exercise his or her trial right so costly that adjudication effectively moved from the federal courthouse to the office of the U.S. Attorney. (87)
As a result, federal prosecutors now do not merely enforce the law, they make key adjudicative decisions as well. As Judge Gerard Lynch has observed, "[t]he substantive evaluation of the evidence and assessment of the defendant's responsibility is not made in court at all, but within the executive branch, in the office of the prosecutor." (88) Indeed, Ronald Wright and Marc Miller have pointed out that "[w]e now have not only an administrative criminal justice system, but one so dominant that trials take place in the shadow of guilty pleas." (89)
II. THE ADMINISTRATIVE LAW MODEL
Contrast the largely stealth accumulation of adjudicative and executive powers in the prosecutor's office with the outward and obsessive concern about the consolidation of power in administrative agencies. Because the problem of combined powers was obvious from the birth of modern administrative agencies, administrative law devotes significant attention to the dangers of combining prosecutorial and adjudicative power. Although administrative law scholars tend to be preoccupied with judicial review as the governing check on agency behavior, (90) administrative agencies actually face a complex of additional checks on their behavior including institutional checks from within. As Jerry Mashaw has persuasively demonstrated, "the internal law of administration"--including structural separation and supervision within an agency--is a critically important means of checking agencies and holding bureaucrats accountable. (91)
This Part describes how structural checks prevent biased decision making from the accumulation of adjudicative and prosecutorial powers in a single individual. It begins by discussing the separation-of-functions requirement in the Administrative Procedure Act (APA). Although this requirement does not apply to all agency actions, it is predominant in agency actions imposing penalties, with many agencies adopting separation even when the APA has not required it. (92) Moreover, in those pockets of decision making where separation does not exist, an alternative scheme aims to prevent bias.
A. Internal Separation
One of the most important checks on combined prosecutorial and adjudicative power comes from the institutional design of the agency itself. The APA prohibits, in all cases of formal adjudication, "lain employee or agent engaged in the performance of investigative or prosecuting functions for an agency" from "participat[ing] or advis[ing] in the decisions, recommended decision, or agency review ... except as witness or counsel in public proceedings." (93) In other words, the APA sets up a bar between prosecutors and adjudicators. As Rebecca Brown has observed, this separation "compensate[s] for departures from the structural constitutional norms" that agencies present by otherwise combining executive and adjudicative power under one roof....
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