No judge should have a financial stake in the outcome of a case. A prosecutor acts in a quasi-judicial capacity. Therefore prosecutors shouldn’t be paid for the number of cases they handle. But the U.S. Attorney’s Office in Los Angeles is doing just that.
It is a first principle of procedural justice that the judge should have no financial stake in the outcome of a case.
The decision to prosecute is a quasi-judicial act. The prosecutor wields a fearsome power on behalf of the state; not every act that might be construed as an infraction of the law deserves prosecution, and a defendant can be ruined even if he is eventually acquitted.
Therefore, a prosecutor should have no financial stake in the decision to prosecute.
Basing prosecutors’ performance appraisals and raises on their raw case counts — even as one measure among several — gives each prosecutor a financial stake in each decision to prosecute. It is therefore grossly improper.
Perhaps when Attorney General Mukasey has finished giving torturers their “get-out-of-jail-free” cards, he might deign to consider the management problems in the once-proud organization over whose continued decline he now presides.
Author: Mark Kleiman
Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out.
Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken)
When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist
Against Excess: Drug Policy for Results (Basic, 1993)
Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989)
View all posts by Mark Kleiman