Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, March 30, 2011

Cash for Conviction Rates?

This story is a few days old, but I flag it because while I was initially very skeptical, I am now somewhat uncertain.  A DA in Colorado has instituted a system of bonuses for line ADAs: try at least 5 cases a year (that is not a large number, in my experience), reach a conviction rate of at least 70%, and receive a bonus in the range of about $1,000 to $3,000.

One important thing that will color any assessment of this plan is that we are talking about conviction rates and not total convictions (the title of the piece is potentially misleading).  One might think that to the extent that the bonus system conditions a prosecutor's discretion about whether to bring a case at all, it might be a good thing.  Also, and as a general matter, we want prosecutors to give better deals for weaker cases, and to try stronger cases, so perhaps the incentives in this kind of system may match up with the public interest.

On the other hand, it is certainly possible that the bonus system might make a prosecutor push to try a case that ought really to settle, thereby misallocating resources in an already resource-strapped system.  On the third hand, it might be thought a good thing to provide incentives for more cases to be tried, since the risk aversion of prosecutors to trials, and the deleterious effects on the development of criminal law, is problematic (thanks to Mike Simons for this thought).  On the fourth hand, suppose the year is coming to a close, and a line ADA has not met his quota.  Wouldn't that ADA have incentives to go for broke and try a whole string of cases, because a few more losses would not affect his salary, but a few more wins might vault him "into the bonus"?  Finally (5th hand), who makes the decision about when to try?  The DA herself, or the line ADA?  I can see problems here if the discretion about whether to push for trial is solely (or even mostly) in the DA's hands.

There are also potential difficulties under the ethics rules (Rule 3.8 and maybe even Rule 1.5's proscription against contingent fees in criminal cases) that are implicated.  Thoughts about the justifiability of this scheme? 


DeGirolami, Marc | Permalink

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We don't permit contingency fees in criminal law or family law b/c we don't want attorneys to try to "win" at all costs, especially in these contexts where there are real human costs that come with a "win" pursued uncritically. (We also don't want crim defense attys to stop trying when it's clear that they won't win.) Isn't this unethical for that reason?

Posted by: rob vischer | Mar 30, 2011 12:55:19 PM

Rob, I agree, and I think there are such problems here, but do you think it's exactly the same? First, the bonus here deals with conviction rates, not convictions themselves. If the program rewarded convictions themselves, we'd have a parallel situation to the contingent fee in criminal cases context. But since we're dealing with conviction rates, isn't it possible that an ADA might be more circumspect about bringing a weak case, because it would not likely be one which would add to his conviction rate?

On the question of ceasing to try mid-trial when it becomes clear that you won't win, that is an interesting question too, but I also see differences with the criminal defense context of charging contingent fees. In that context, the contingent fee would be established up front, and it would constitute the whole of the payment. Here, the decision whether to try gets made fairly late in the game, and the bonus coming your way even if you can add the conviction to your success rate is fairly small.

But I agree that this system is problematic, just maybe not as problematic as the criminal defense contingent fee issue. Thanks for the thought.

Posted by: Marc DeGirolami | Mar 30, 2011 1:12:33 PM

In almost every scenario I can think of, the incentives this establishes are bad.

* There are those easy cases where defendants are willing to plead guilty in exchange for a relatively small concession in sentencing. These pleas are good because they reach a basically assured result with a much lower cost to public resources. This bonus would incentivize prosecutors to try those cases to bad their conviction rate.

* There are various diversion proceans that are pursued in drug/alcohol/youthful offender cases because they have superior social outcomes. Prosecutors would be incentivized to avoid those programs and seek criminal convictions instead.

* In more difficult cases, especially ones where there are issues of unresolved law, prosecutors will have an even stronger-than-normal incentive to file unreasonably tough charges to drive a defendant to the bargaining table unfairly.

* In tough cases, prosecutors will be more willing to push ethical boundaries and bend the rules to get an unjust conviction if they have a personal financial stake in the outcome. Even if they don't break the law or ethics rules, the closer they get to tha line, the worse off our justice system is.

Beyond all the specific incentives, though, the real problem is that this suggests that a prosecutor's job is to win convictions, when instead it should be to seek justice in an efficient way.

Posted by: Andrew MacKie-Mason | Mar 30, 2011 2:19:34 PM

Andrew, I agree with the first bullet: I do think that there are economic advantages to pleas in strong cases. I'm not sure I agree with that point in all cases, however.

I think your second bullet point might be right, but I don't necessarily see how a judge could not take those sorts of circumstances into account at sentencing.

I don't think I understand your third bullet. Perhaps you could explain more. I'm unclear about how the law being unsettled predictably would drive a prosecutor to overcharge. I have the same reaction to your fourth bullet point. I don't see how a prosecutor would necessarily be more willing to bend the rules "in tough cases." He or she might be just as interested in not overcharging, or in not bringing any charges at all, in order to avoid what is predicted to be a loss. Furthermore, I don't understand the "close to the line" comment. If the charge and the prosecution that follows it is ethically unproblematic, why should we care that it is "close to the line"?

Posted by: Marc DeGirolami | Mar 30, 2011 3:36:56 PM

First bullet: yes, there are going to be easy cases where the prosecutor shouldn't give any leeway in sentencing. However, the crude statistics approach doesn't even attempt to identify those cases where pleading is appropriate or where charging is appropriate. Instead of taking a numerical easy way out, supervisors should, well, supervise.

Second bullet: excuse me, *programs. Autocorrect got me. And many such programs are done without convictions or pleas. The case is suspended while the defendant goes through what is effectively a probation period. Upon successful completion, the case is dismissed.

Of course judges can still play a role in that even if prosecutors don't offer those programs, but judges have their own incentives not to "go easy" on offenders. By incentivizing prosecutors to seek convictions rather than rehabilitative programs, you're increasing jail crowding and decreasing treatment. The programs won't go away, of course, and some people will still get treatment. But it'll be fewer of them.

Third bullet: in tough cases, prosecutors want to get defendants to plead guilty. One way they do that is to overcharge with lots of lesser included offenses. All they need to do is pass a probable cause standard (in practice, laughably low: judges almost never don't bind charges over to trial), and then the threat of conviction on the higher charges, however unlikely, tips the plea-bargaining that little extra bit in the prosecution's favor.

In my own experience, I've seen what was pretty clearly a low-level felony assault charged as attempted murder, with various "lesser included offenses": assault with intent to commit great bodily harm, assault with intent to maim, aggravated assault, and assault and battery. If I remember correctly, the prosecutor offered an aggravated assault plea basically from day one.

If you make a loss at trial mean a financial loss to the prosecutor, you're incentivizing them to get good pleas (pleas that their bosses will approve of). And that means they'll be more inclined to over-charge than they normally would be in order to procure those pleas.

Fourth bullet: if you put money at stake, people are going to become more willing to sacrifice a bit of their integrity, consciously or subconsciously. Obviously a bonus isn't going to turn an ethical prosecutor into a lying cheat, but it might convince someone who follows the rules out of fear of disbarment to bend or break them a little.

As to the idea that prosecutors just won't bring a case, my understanding is that while they have some leeway in offering pleas, they can't just dismiss the charges (especially not in higher-profile cases). And let's be honest: if a DA has so little trust for his assistants that he has to offer them bonuses to try to convict criminals, do you really think that DA is going to allow the assistants substantial freedom to dismiss cases on their own discretion?

As to ethical lines: there's a difference between what's illegal, what's unethical (as in, a violation of the code of ethics), and what's wrong. Just because a certain wrong action isn't technically unethical or illegal doesn't mean we should spend money incentivizing prosecutors to do it. The opposite, in fact.

For just a few cases where we should expect prosecutors to do better than the ethics rules dictate:

* Brady information. There's no reason prosecutors should be stingy with it, but there's significant ethical leeway for them to hide what is arguably relevant information from the defense.

* Overcharging. For some reasons, most ethics rules only demand that prosecutors think there's probable cause in order to bring charges. That's a ridiculously low standard: after all, what business does a prosecutor have trying to convince a jury that there's no reasonable doubt, when the prosecutor personally has reasonable doubt. And it's even more wrong to file a charge that you're not even hoping to win, just to increase your bargaining hand.

* Suborning perjury. There's also lots of ethical leeway here. Prosecutors (all lawyers, really) can basically know that the testimony they're introducing is perjury, but so long as they don't "actually" know, there's no ethical violation. But surely we can agree that this isn't a line we want prosecutors experimenting with.

Those are just a few examples, of course. Not everything that's "ethical" is good, and the more we pay prosecutors to do something that isn't their job, the more they'll experiment with ethical lines, to the detriment of the entire criminal justice system's integrity.

Posted by: Andrew MacKie-Mason | Mar 31, 2011 1:58:24 AM

Personally knowing someone that is being a victim of the Cash for Convictions Ive never seen something more crazy. Along with all the witness' talking outside of court saying that they are being coached by investigators and the DA of what to say on the stand. Unfortunately also overhearing that they are really just lying. This Cash for Convictions thing has taken DA's looking for justice only looking for cash. Justice isn't being sought; the DA that I witnessed in Arapahoe County yesterday was straight lying to the judge and I dont want to see anyone go to prison because oh lies a DA has compiled when she knows she should have dropped the case. I watched her have investigators scramble for new witness' as the ones she had told that the so called suspect wasn't involved. This whole idea needs to be removed from the justice system.

Posted by: Katie Mendonsa | Apr 20, 2011 5:14:13 PM

Are officials participating in these programs aware of the serious procedural and credibility issue they pose? And if they are (or if they’re not, for that matter), what does their participation say about our criminal justice system?

Posted by: Paul Vimax | Aug 24, 2011 10:31:52 AM