Stephanos Bibas (University of Pennsylvania Law School) has posted Rewarding Prosecutors for Performance
(Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
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.