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Attorney’s Incentives: Why Conviction Rate-Based Bonuses for Federal Prosecutors Are Unjust

Posted in In the Courts

Today, I welcome Berk Law’s David Martin, Director of The Corporate Observer, with a guest post on attorneys’ incentives and the role of Federal prosecutors.

In Berger v. United States (1935), Supreme Court Justice George Sutherland best summed up the responsibility of a Federal prosecutor:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

A recent Denver Post story about attorney’s incentives has me extremely concerned. In the 18th District of Colorado, felony prosecutors are awarded bonuses (averaging over $1000) based simply on their annual felony conviction rate. Come on down! Simply try five or more felony cases and win at least seventy percent, and you win!

District Attorney Carol Chambers, who instituted the policy late last year, has pitted monetary incentive directly against Justice Sutherland’s eloquent summary of a prosecutor’s duty. By paying only for trial success and ignoring successful plea bargains (not to mention cases dropped for lack of merit), Ms. Chambers unconditionally encourages her office to take cases to trial; unsurprisingly, in 2010 her district held vastly more felony trials than districts like Colorado’s Second District, which includes Denver.

More troubling than the additional trials—a purely logistical concern—is the unfairness to defendants, who are forced to negotiate with a prosecutor that is eligible to receive a bonus only if a case goes to trial. Once a case is in trial, the District Attorney’s office pays the prosecutor’s bonus based on winning, rather than ensuring "justice shall be done" as Justice Sutherland prescribed.

I don’t doubt that Ms. Chambers had good intentions when she enacted this policy. I understand the background reasoning: What better way to determine merit-based bonuses than by tying them to success rate? The problem is, she chose a flawed statistic, which misaligns her prosecutors’ incentives. (Indeed perhaps there is no just statistic.)

I do not blame Ms. Chambers, but now that the true effects of her policy have come to light I hope she does the right thing and returns to the status quo.


Guest post by David Martin