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Prosecutorial Administration: Prosecutor Bias and the Department of Justice

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlim-ited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymak-ing. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.

This Article describes the current regime of “prosecutorial admin-istration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction. It focuses on three areas of criminal justice poli-cy— corrections, clemency, and forensics—and describes how these matters came under the aegis of the Department without much con-cern about the conflicts they would create with the Department’s law enforcement mission. It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases. As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as per-ceived by the Department’s prosecutors) will dominate.

Thus, if decisions about corrections, forensics, and clemency are be-ing made by prosecutors—and thus through the lens of what would be good for prosecutors and their cases—it is possible that these deci-sions are not accounting for what would be good policy overall, taking into account interests other than law enforcement. Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they tend to focus on the short-term pressure of dealing with current cases and may develop cognitive biases that make it hard for them to see a broader perspective. 

The Article thus turns to the question of how institutional design could help create a more balanced approach in the areas of correc-tions, forensics, and clemency that is not so tilted to law enforcement concerns. After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.

The Liability Rule for Constitutional Torts

There is no liability rule for constitutional torts. There are, rather, several different liability rules, ranging from absolute immunity at one extreme to absolute liability at the other. States and state agencies are absolutely immune from damages liability for violations of constitutional rights, no matter how egregious their conduct may be. The same is true for those who perform legislative, judicial, and certain prosecutorial actions. In contrast, local governments are strictly liable for constitutional violations committed pursuant to official policy or custom, even if the right found to have been violated was first recognized after the conduct triggering liability. Most defendants — including federal, state, and local officers — are neither absolutely immune nor strictly liable. Instead, they are protected by qualified immunity, a fault-based standard approximating negligence as to illegality. 

This article attempts a unified theory of constitutional torts. Less grandly, it offers a comprehensive normative guide to the award of damages for violation of constitutional rights. It seeks generally to align the damages remedy on one liability rule, a modified form of qualified immunity, with limited deviations justified on functional grounds and constrained by the reach of those functional justifications. The analysis begins with absolute immunity, then proceeds to absolute liability, and concludes with extended consideration of qualified immunity. The argument calls for curtailment of the first two categories and reform of the third. The overall goals are restoration of money damages as an effective means of enforcing constitutional rights; protection against the downside risks of wholly unconstrained damages liability; and rationalization of the law through simplification of existing doctrine.

Persuasion Treaties

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, we simply cannot address critical global problems without them.

I use the term “persuasion” to communicate the observation that the success—and sometimes the very existence—of treaties in this class depends upon whether state parties can successfully enlist private sector support. The theory builds on recent scholarship that identifies the depth of regulatory interdependence between private and public sector actors. Business entities may choose either to cooperate with or to impede domestic regulatory regimes, and their decisions are not fully susceptible to legal control. The business choice is significant on the international stage: without a successful domestic regulatory regime, a state will not be able to keep corresponding international commitments. Moreover, many states do not commit to treaties they cannot implement or enforce. Thus, persuasion treaty regimes must attract the support of relevant business entities, either ex ante (to secure international agreement) or ex post (to achieve results).

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