Do DA Performance Bonuses Help Or Hurt Defendants?

The ABA Journal reported, last week, that a Colorado defense lawyer is seeking documents relating to the Arapahoe County DA's policy of giving line prosecutors with high conviction rates bonuses.  Presumably, the defense bar thinks that this will result in some violation of a prosecutor's duty to justice .  Fair enough guess - but I think the defense bar might have this one wrong.  Per the Journal:

[Arapahoe DA] Chambers paid bonuses last year to felony prosecutors who won convictions in at least 70 percent of their cases. They were required to have tried at least five cases, and plea bargains and mistrials didn’t count. Prosecutors assigned to complex trials were exempted. The average bonus paid was $1,100.

Notice this: DA's make more money if they win a high percentage of their trials.  But pleas don't count in the denominator.  And they only need five trials.  What would an optimizing prosecutor do?  I suspect she'd plead out a ton of cases that could go either way.  Basically, anything that's not a slam dunk would get plead.  Indeed, one might worry that it would be the general public - not the defendants - who'd lose under this policy, because there might be a number of instances when a case really should go to trial (for the sake of the victim, public safety, or expressive reasons) but would present a risk of acquittal. 

I think that the DA is probably attempting a valid goal here - encouraging lawyers to try cases excellently - but using conviction rates in this way doesn't seem like a very effective strategy.

Comments

[Larry Rosenthal]

Beyond that, an optimizing prosecutor might hesitate to bring charges in cases involving thin evidence and an aggressive defense counsel, worrying that that might not be resolved even by a generous plea bargain (or that superiors might not approve an unduly generous plea bargain), necessitating a trial on thin evidence. This approach, in short, could be a defendant's bonanza.

Larry Rosenthal
Chapman University School of Law

[Jim Fischer]

isn't this the reason the bar prohibits contingent fees in criminal representaion. How does a bonus for convictions differ from a contingent fee, other than in form, if that?

[Cynthia]

Defendants who are found guilty after a trial get significantly higher sentences than if they plead guilty. So, it seems one end result of this policy is that these "easy win" cases will not get offers and those defendants will end up getting higher sentences (and serving more time). Policies like this seem to encourage behavior that runs contrary to the ultimate ethical duty of every prosecutor: to do justice. Not to earn a bonus.

[Larry Rosenthal]

Cynthia:

This policy is unlikely to affect "easy win" cases because prosecutors cannot prevent a defendant from pleading guilty. In these "easy win" cases, moreover, even without erformance incentives, prosecutors will rarely offer much in the way of concessions (why would they?), and defendants will usually plead guilty anyway to avoid whatever trial tax might otherwise be imposed. Thus, with respect to "easy win" cases, this policy should produce the same outcome that a "do justice" model would produce -- a plea of guilty with the court free to impose whatever sentence it deems warranted. It is the cases in which the evidence of guilt is thin that this policy is most likely to lead to distortions -- and those are likely to benefit the defendant.

Larry Rosenthal
Chapman University School of Law

[Jake Stevens]

I think it depends on the jurisdiction (obviously). In NYC even "easy win" cases may be resolved through charge bargaining because easy doesn't necessarily mean cheap in terms of prosecutorial and judicial resources.

Jake Stevens
Hofstra School of Law

[Kevin]

I agree with Cynthia.

Prosecutors can prevent a Defendant from pleading guilty by offering a less than attractive sentence. There is an incentive to take "easy" cases to trial under this model.

Normally, Defendants do not want to plead guilty. It is usually after concessions are made by the State that they do (i.e. a shorter term of incarceration, longer probationary sentence). Many are afraid to do an "open" plea where the sentence has not been negotiated with the State.

I do not like the policy one bit. Cash strapped prosecutors (I am one), should be given raises. Not performance based bonuses. Managing prosecutors based on their conviction rate isn't wise.

Kevin
Pennsylvania

[Larry Rosenthal]

Jake and Kevin:

A defendant that wants to plead guilty to avoid a trial tax and is being offered no concession by the prosecution simply pleads guilty without a plea agreement. This enables the defendant to avoid the trial tax, which is a "concession" that the prosecutor cannot prevent the defendant from obtaining, and that the judge is usually only too happy to offer, regardless of the prosecutor's views, to avoid a wasteful trial. In my years as a prosecutor, the most common outcome I saw in strong prosecution cases was a plea of that character (even without any kind of prosecutorial pay plan in effect to discourage plea agreements in such cases). It is hard for me to believe that defense lawyers in your jurisdictions behave much differently. Jake seems to be a law student likely to have highly limited (if any) experience in such matters, and Kevin does not claim that defendants facing strong cases in Pennsylvania will not make an "open" plea in a case where the evidence is strong if there is any meaningful trial tax in play. Why would a defendant fail to make an "open" plea in such a case? -- the trial tax means it is in the defendant's interest to plead guilty even without a plea agreement.

Larry Rosenthal
Chapman University School of Law

[Cynthia]

Larry,

"Simply" pleading guilty without a plea agreement leaves the defendant at the mercy of the particular judge and when I was practicing law many judges had a policy that they would not give any indication of what the sentence would be. This makes it difficult for a defense lawyer to advise a client that it is in their best interest to "plead open." I practiced in front of a number of judges who would treat "pleading open" as they would a finding of guilty by a jury (so the sentences would be similiar). Many judges thought that if the defense and prosecutor can't agree this must be a serious case. Of course, that thinking might be changed if it is a jurisdiction where the prosecutor is known to game play and not work to settle cases that should be settled before trial. Unfortunately, in my years as a public defender I saw enough unpredictable and irrational behavior (from the bench and prosecutors) that would make me (and many defense lawyers) hesitate to "plead open" without knowing the consequences.

And, as Jake referenced, "pleading open" is not a great option if the charges are an issue. If the case is overcharged, or if there are multiple counts, without a plea agreement none of the charges will be reduced or dismissed.

But, I think we have collectively moved away from the more serious question: Is it good policy to reward prosecutors for "winning" cases? In a system that we all know can be easily manipulated, and in a system with serious consequences (including deprivation of liberty) should we reward "winning" convictions? Or should prosecutor's offices have a more sophisticated method of attorney performance evaluation (as most do)? I also question whether this kind of policy helps to prevent wrongful convictions.

[Patrick S. O'Donnell]

I think this succinct comment from Monroe Freedman, renowned legal ethicist, says it all: "Outrageous. It's an incentive to overlook ethical obligations, like Brady."

[Larry Rosenthal]

Patrick:

The incentives are surely more complicated than that. Given the professional risks involved in making a conscious decision to breach Brady obligations -- for financial reasons no less -- it seems to me that a revenue-maximizing prosecutor would be more likely to refrain from filing charges in cases with substantial exculpatory evidence when compensation is linked to conviction rate.

Larry Rosenthal
Chapman University School of Law

[Jake Stevens]

Larry:
I am not sure what in my very brief comment would lead you to believe I am a law student. Perhaps it is an indication that all professorial comments must be long-winded? I think we are even now, so moving on to the topic at hand...

What professional risks would be involved in making a conscious decision to breach Brady obligations? I am not sure I have heard many cases where prosecutors suffered professional harm from gaming Brady. In the couple of cases which landed on my desk in my 17 years as a public defender either the assistant in question had moved on to other work by the time the appeal was resolved or the office seemed to treat it with the same seriousness as when they were found to have violated Batson principles (i.e. very little). As wiser professors than I have explored, prosecutors can suffer from cognitive biases which make them under-perceive the potential Brady-ness of evidence.
Again, our comments may reflect the jurisdictions in which we have practiced. And of course the great federal/state divide. But in the Bronx, even a strong prosecution case is likely to get a discount from a prosecutor to avoid trial.

Jake Stevens
Still at Hofstra Law, but now openly a faculty member...