Free market economists are acutely sensitive to the power of incentives to shape the behavior of market participants. For example, it seems certain that if the price of some commodity falls, consumers will ceteris paribus purchase more; if the government substantially raises the corporate tax rate, businesses will try to maintain their profits by raising prices or lowering costs; if the price of labor in manufacturing dramatically increases in some jurisdiction, employers will relocate or automate; etc.
Public choice theorists have observed the comparable influence of incentives in the political process, identifying and fruitfully analyzing such phenomena as “the free rider problem,” the disproportionate influence of “single issue voters,” bureaucratic empire-building, and so forth. Nowhere is it more critically important to get these incentives right than in the administration of justice, one of the core governmental functions. Sadly, in the recently concluded Kyle Rittenhouse trial, we have witnessed the latest example in a long line of prosecutorial misconduct, which is directly attributable to the perverse incentives faced by these judicial officers.
To start with the basics, prosecutors are governed by the rules of professional conduct established by their state bar associations. Many have adopted the American Bar Association’s model Criminal Justice Standards for the Prosecution Function, which states that a prosecutor is “an administrator of justice, a zealous advocate, and an officer of the court.” Rule 3-1.2(a). Moreover, and most importantly:
The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. Rule 3-1.2(b).
And yet hundreds of convicted criminals, on death row or serving life sentences, have been exonerated as a result of work done by public-minded individual attorneys and such organizations as the Innocence Project. Shockingly, the most comprehensive study on this subject has found that, “Official misconduct contributed to the false criminal convictions of more than half — 54 percent — of innocent people who were later exonerated.” Prosecutors were determined to have engaged in misconduct in 30% of these wrongful convictions.[1]
Sadly, this horrific situation is exactly what we should expect given the incentive structure that shapes prosecutorial decision-making. That is, prosecutors have strong motivations to disregard their ethical and legal obligations in favor of a “win at all costs” strategy, and face little in the way of negative consequences for doing so.
First, state and local district attorneys are elected officials, and for political reasons wish to be perceived as “tough on crime.”[2] Unsolved felonies and acquittals are bad for business.[3] Second, the line level attorneys that actually try criminal cases probably seek out these positions because they (i) have especially strong aversion to crime and criminals and (ii) have the sort of combative personalities that are drawn to high-stakes litigation. Finally, a successful track record in major cases likely enhances the status of these prosecutors within their departments.
On the other hand, there are scant disincentives to discourage these attorneys from betraying their professional responsibilities. Note initially that they are virtually invulnerable to civil lawsuits by those they have wrongfully convicted because of the doctrine of “qualified immunity.” With respect to discipline from the state bar associations that theoretically are policing this, a report prepared in 2020 by the Innocence Project quotes Nina Morrison, one of its senior attorneys, who observes that they are, “Often…overwhelmed with other cases, lack expertise in criminal law or, in some cases, are biased in favor of prosecutors and give them every benefit of the doubt.”
This 2020 report also describes the findings of one of the IP’s previous surveys of prosecutorial misconduct, which:
looked at five diverse states over a five-year period (2004-2008) and identified 660 cases in which courts found prosecutors committed misconduct, such as tampering with key evidence, withholding evidence from the defendant or coercing a witness to give false testimony. In 527 cases, judges upheld the convictions, concluding that the prosecutorial error did not impact the fairness of the defendant’s original trial. In 133 cases, convictions were thrown out. Of the 660 cases examined, only one prosecutor accused of misconduct was disciplined.
This information should, of course, infuriate anyone with the slightest concern for basic individual rights and the proper administration of justice.
All of the flaws in the system were on full display in the Rittenhouse prosecution. As journalist Victoria Taft accurately reports, Binger and Kraus, the assistant district attorneys who prosecuted the case, engaged in many of the classic abuses: overcharging, lying to the press, failing to turn over exculpatory evidence in a timely manner, and brazenly traducing in open court the defendant’s constitutional right to remain silent. Based on the trial judge’s remarks it seems almost certain that—had the jury not acquitted—he was prepared to grant the defense’s motion for a mistrial and was even considering doing so with prejudice, meaning that Rittenhouse could not be retried.
A dismissal with prejudice takes the case out of the jury’s hands, and so was an unlikely outcome. A conventional mistrial could have resulted in a gross miscarriage of justice, since Rittenhouse might not have the resources required to mount an effective defense in a costly second trial. In any case, with the acquittal all seems to have been forgiven and forgotten as far as the outrageous behavior of Binger and Kraus is concerned. No referral to the state bar, no lawsuits, nothing. Until this changes gross violations of justice will continue apace.
One solution would be to allow acquitted defendants to petition the Supreme Court of their respective states for the appointment of a special prosecutor with subpoena power, who would be authorized to indict and try rogue prosecutors. I am not heavily invested in this specific solution, but this corrupt system must be reformed or more innocent people will suffer grave harm.
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[1] While police were found to have been engaged in misconduct in 34% of the exonerations included in the study, it is reasonable to assume that their conduct is largely shaped by the attitudes, standards, and expectations set by the attorneys who supervise and try these cases.
[2] There is a separate and distinct problem that arises when voters unwittingly elect district attorneys who implement policies and procedures that imperil public safety by ignoring justice in favor of promoting “social justice.” This also costs innocent people their lives, as appears to have just happened in the Waukesha parade mass murder. However, a full commentary on this will have to wait for another day.
[3] The prosecution of federal crimes is the responsibility of the Department of Justice and the various U.S. Attorney’s offices scattered around the country. The top officials are political appointees, while the line-level prosecutors are civil servants. These attorneys do not face reelection campaigns, but can be subject to political pressure and often have the same dangerous mindset described in the text.
