This article explores some facets of internal regulation - efforts within the branch, and indeed within individual prosecutors' offices, to control and legitimize prosecutorial discretion. Our thesis is simple but profound. We believe that the office policies and practices of thoughtful chief prosecutors can produce the predictable and consistent choices, respectful of statutory and doctrinal constraints, that lawyers ordinarily expect from traditional legal regulation. Indeed, with regard to many legal and policy concerns, such as prosecutorial race and gender bias, we believe that internal regulation can deliver even more than advocates of external regulation could hope to achieve. We use more than a decade of detailed data from the New Orleans District Attorney's office (NODA) to explore this thesis. The database covers all cases handled by the NODA office between 1988 and 1999. It contains detailed information on around 430,000 charges and about 280,000 cases (involving 145,000 defendants), filed or adjudicated between 1988 and 1999. We find that declinations in New Orleans reveal an internal legal order at work. This legal order is practically hidden and virtually unknown to the scholarly and policy community; at the same time the values it incorporates are strangely familiar. This internal order responds not only to the policy priorities of the elected leaders of the office, but it also enforces and deepens the commands of the substantive criminal law and the adversarial criminal process. The inner workings of the NODA Office under Harry Connick suggest that while scholars and policy-makers have missed the importance of internal regulation, the best prosecutors have not. In this article we describe four distinct sources for the internal regulations visibly at work in New Orleans. Some internal regulations reflect procedural constraints, including constitutional criminal procedure, where prosecutors decline cases if they believe that the police violated the rules of search and seizure or other investigation constraints. This executive exclusion function can both predict the ultimate reaction of courts to these cases, and perhaps add to the procedural requirements that courts might impose. A second source of internal regulation comes from a most unexpected legal guest at the prosecutorial table, as prosecutors rely on doctrines in the substantive criminal law (particularly mens rea requirements) to sort cases. Third, some internal regulations derive from practical problems of proof and evidence, particularly when prosecutors account for the role and preferences of victims. Fourth, prosecutors account for various kinds of regularized policies, including the hostility to plea bargains examined in our earlier study. Together these four kinds of reasons have a surprisingly comfortable and familiar feel.
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