Prosecutorial discretion is a problem that most scholars attack from the outside. Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct. 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 decisionmaking. The more promising alternative is to work within prosecutors' offices, to create incentives for good performance. This symposium essay explores a neglected toolbox that head prosecutors can use to influence line prosecutors: compensation and other rewards. Rewards can both attract and retain the best candidates and also encourage those who are already prosecutors to perform better. Though we take lock-step seniority-based salaries for granted, recent management literature has emphasized the need to pay for performance, to attract and retain stars and encourage quality performance and hard work. First, Part I discusses possible metrics of prosecutorial success, to decide what traits and behavior to reward. Historically, prosecutors have focused on a couple of statistics such as conviction rates, but these numbers are manipulable and incomplete. Prosecutors' multiple constituencies and goals require subtler measures. A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does. This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies. The next step is to devise incentives to encourage success on these metrics. Part II surveys pay and reward systems designed to attract and retain good prosecutors and to encourage them to succeed. A first step is to offer variable salaries, raises, promotions, and awards tied to the metrics of success. More radical solutions could range from hourly rates to performance-based bonuses to contingency fees. While some of the more radical solutions, such as contingency fees, would be unwise or unworkable, others are worth trying.
Criminal law, prosecutorial discretion, prosecutorial incentives, accountability, management of prosecutors, conviction rates, oversight, feedback, victims, peers, compensation, promotion, bonuses, contingency fees
Bibas, Stephanos, "Rewarding Prosecutors for Performance" (2009). Faculty Scholarship at Penn Law. 245.