The Situationist

Posts Tagged ‘prosecutorial discretion’

A Situationist View of Criminal Prosecutors

Posted by The Situationist Staff on August 2, 2009

ScalesBarbara O’Brien has recently posted her interesting article, “A Recipe for Bias: An Empirical Look at the Interplay between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making” (forthcoming in Missouri Law Review, 2009) on SSRN.  Here’s the abstract.

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Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought. The first school focuses upon institutional incentives that promote abuses of power. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so. The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress not because of sinister motives, but because they labor under the same cognitive limitations that all humans do. In this article, I begin to unify these two schools of thought into a comprehensive approach. I apply the lessons of cognitive science to identify the ways in which prosecutors’ distinctive institutional environment may undermine not just their willingness to play fair, but their ability to do so. Research on the psychological effects of accountability demonstrates that when people are judged primarily for their ability to persuade others of their position, they are susceptible to defensive bolstering at the expense of objectivity. I argue that prosecutors operate under precisely such a system, and are therefore particularly susceptible to biases that undermine their ability to honor obligations that require some objectivity on their part. In support of this claim, I present the results of two original experiments demonstrating that holding people accountable for their ability to persuade others of a suspect’s guilt exacerbates common cognitive biases relevant to prosecutorial decision making, and discuss the implications of this research for reform.

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To download the paper for free, click here.   To read a sample of related Situationist posts, see “Leaving the Past,” Behavioral Criminal Law and Economics – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “The Racial Situation of Criminal Juries and the Consequences,” “The Situation of “Justice” in Tulia Texas,” Jena 6 – Part I,” and “Jena 6 – Part II.”

Posted in Abstracts, Behavioral Economics, Law | Tagged: , , , , | 2 Comments »

The Situation of Capital Punishment – Abstract

Posted by The Situationist Staff on May 23, 2008

Image by ShanePapaDisel - FlickrKatherine Barnes, David Sloss, and Stephen Thaman, recently posted their paper, “Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri” on SSRN. Here is the abstract.

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This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser crimes; and defendants are sentenced to death, not lesser punishments.

The Missouri statute gives prosecutors very broad discretion. We estimate that at least 76 percent of the cases in the database are death-eligible under the statute. However, prosecutors pursued capital trials in only about five percent of the cases. Thus, death-eligible cases in which prosecutors chose not to pursue capital trials comprise at least 71 percent of the cases in the database. Prosecutors in different counties exercise their discretion differently, leading to substantial variation in charging and sentencing practices in different counties across the state. The analysis of cases by race of victim and race of defendant shows that there are racial disparities in charging and sentencing decisions, but the racial disparities are not as significant as the geographic disparities. The article presents measures of racial and geographic disparities without controlling for individual culpability; a follow-on study will introduce culpability measures as control variables.

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To read some related Situationist posts, see “The Situation of Death Row,” “Why We Punish,” and “Black History is Now.”

Posted in Abstracts, Law | Tagged: , , , | Leave a Comment »

 
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