Previous articleNext article FreeComment on “‘A Million Dollars in Free Advertising’: Politics and Sex Offense Prosecution in the Wake of Duke Lacrosse”Adi LeibovitchAdi Leibovitch*Assistant professor, Hebrew University of Jerusalem Faculty of Law. Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreProsecutors play a central role in how cases proceed and are resolved in the criminal justice system. They command a wide degree of discretion over the question of indictment, the charged offenses, and the terms of plea bargains. Yet the study of prosecutorial decision making has been hampered by lack of data and by the problem of endogeneity between the behavior of prosecutors and the institutional and local environments in which they operate. In quest of exogenous sources of legal variation, the passage of sentencing reforms has been helpful in exploring the extent of prosecutorial discretion. For example, empirical studies of prosecutors’ response to the legislation of three-strikes laws or mandatory minimum sentences have demonstrated how prosecutors exercise discretion to increase sentences (Kessler and Piehl 1998) or to effectively circumvent the mandatory statutory requirements through altering the conviction charges (Engen and Steen 2000; Bjerk 2005). Whether prosecutors use their power benevolently or strategically, however, is a different question. In particular, prosecutors may be driven by reelection pressure and other career advancement opportunities in choosing which cases to prosecute (Glaeser, Kessler, and Piehl 2000) and in pursuing more trials (Boylan and Long 2005; Bandyopadhyay and McCannon 2014) and longer sentences (Boylan 2005).Such political incentives are at the heart of “‘A Million Dollars in Free Advertising’: Politics and Sex Offense Prosecution in the Wake of Duke Lacrosse.” McCannon and Wilson (2019, in this issue) propose that the publicized wrongful prosecution of the members of Duke University’s lacrosse team with charges of rape—allegedly driven by the district attorney’s political ambitions while facing contested elections—could serve as a quasi-natural experiment to further the study of the impact of political incentives on prosecutors’ decision making. McCannon and Wilson’s approach is novel in using the Duke lacrosse case, not as a source of legal change stemming from the content of a decision in the case but for the media attention it garnered. This inventive move enables the authors to identify a plausibly exogenous shock to the extent of public scrutiny over prosecutorial conduct and to employ it to study the possible role of public opinion in curtailing or inducing prosecutorial hawkish behavior. By comparing differences in the number of serious sex offenses charged and in the disposition of such cases through trials or plea bargains, before and after the unraveling of the scandal in 2006, the authors aim to test the impact of the extensive media coverage of the case on the exercise of prosecutorial discretion, both in general and in particular when prosecutors face reelection.The North Carolina data, however, allow the authors to observe only the cases that end in a criminal disposition but not the universe of cases to which prosecutors apply their discretion. In light of the limitations of the data, it is important to have not only a theory of how public attention could affect the decisions of prosecutors but also a theoretical framework of the potential mechanisms for the influence of public attention on cases throughout the different stages of the criminal justice system—from the initial criminal behavior to the final disposition—and on the magnitude of the effect attributable specifically to prosecutorial discretion.The Duke lacrosse scandal could have affected prosecutorial incentives and behavior in two opposite ways. District Attorney Nifong’s statement to his campaign manager, as captured in the article’s title, that the case is worth “a million dollars in free advertising” suggests a positive incentive for prosecutors to pursue similarly high-profile cases in light of the heightened media attention to rape prosecutions. Alternatively, the public outcry sparked by the wrongful prosecution could have generated a chilling effect, warning off prosecutors from misconduct and from the bad press associated with it. Under either theory, however, the existence of an effect depends crucially on the availability of a large enough number of cases amendable to a different decision following the change to prosecutorial incentives. The media-seeking motivation could have changed prosecutors’ charging decisions only to the extent that prosecutors were largely unaware of such a consideration before and only if, once informed, they had enough available cases that they had been otherwise reluctant to charge but could nevertheless credibly file post 2006. With regard to a possible chilling effect, it should be noted that the Duke lacrosse case involved the district attorney withholding exculpatory evidence from the defense. The unraveling of the scandal may have thus discouraged prosecutors from knowingly charging innocent defendants (or from withholding exculpatory evidence), but it is unclear why it would have discouraged them from bringing charges in cases that were evidentiary sound. The article does not directly address these assumptions and, consequently, the extent that findings on this margin rely on a presumption of the prevalence of prosecutorial misconduct.The two aforementioned hypotheses further assume that prosecutors continue to make their decisions based on a relatively stable stream of cases and similar availability of resources. The data, however, span a period of 18 years from 1999 to 2017, during which time many factors could have contributed to changes in the underlying composition of cases from which prosecutors decide, including changes in offending rates and reporting. Furthermore, both a change to prosecutorial charging policy and the media coverage of the Duke lacrosse case (as well as of other cases and legislation)1 could have also altered the behavior of potential perpetrators and victims as well. McCannon and Wilson (2019) seek to address these concerns by constructing the dependent variable as the number of filed rape charges relative to the number of filed felony charges and interpreting the negative coefficient as evidence of a relative reduction in the prosecution of sex offenses specifically. Using felonies as a benchmark presumes that the crime and reporting trends of different types of offenses are similar enough for one to serve as a comparison group for another. The period of study, however, has seen a downward trend in the reporting of sex offenses in the United States in general and in North Carolina in particular.2 Using the ratio of filings to complaints in rape cases as a dependent variable could have better taken into account changes in the composition of cases available to prosecutors.3In addition, the negative trend documented in the article does not seem to differ across years whether or not prosecutors ran for reelection. The findings of a decline in the charging of sex offenses over the last decade is interesting and valuable in and of itself, especially in light of the severity of these crimes and their prominence in the public discourse. There is a question though about the proposed political mechanism in the aftermath of the Duke lacrosse case.4 McCannon and Wilson’s interpretation of the results is that before 2006 prosecutors were less likely to file rape charges in reelection years, whereas after 2006 the reelection effect is muted and prosecutors are less likely to file rape cases in general. The first finding—that previously prosecutors pursued less rape cases in reelection years—runs counter to the district attorney’s action in the Duke lacrosse case (and to the presumption underlying the chilling effect hypothesis that this may have been a more widespread phenomenon). The second finding—that after 2006 prosecutors became less likely to file rape cases in general but no more so in years when they face reelection—does not lend preference to political incentives as the underlying cause among potential explanations.McCannon and Wilson (2019) also present results regarding the different ways that cases are disposed following the decision to press charges. As the authors acknowledge, the analysis is impeded by the inability to observe acquittals in the data, but they conjecture that the smaller proportion of cases disposed in jury trials post 2006 might serve as an indication that prosecutors file cases that are more evidentiary sound. This part of the analysis further emphasizes the challenge to the study of prosecutors, where not only is the universe from which prosecutors are selecting the cases to bring to court unknown, but the bargaining dynamics are also unobserved. One can only speculate about the reasons why less cases end with a jury trial. If defendants are the ones who prefer to avoid trials, would that be because cases are more evidentiary sound or perhaps because defendants have become increasingly suspicious of prosecutors and of how they might conduct such trials? Alternatively, perhaps prosecutors are less inclined to pursue trials and are willing to offer more favorable plea bargains to defendants—because they worry about the heightened scrutiny that might accompany a publicized trial, because they are concerned that the salience of wrongful prosecutions might make jurors less likely to convict, or because they have less resources to devote to litigation?Some of those hypotheses could, at least initially, be probed by looking at changes to the average sentences in cases that end in plea bargains as an indication of the relative attractiveness of plea bargains and trials. It seems, however, that the data lend at least some support to resource constraints as one possible explanation. Following 2006, a smaller proportion of sex offense cases were disposed through trials, but a similar proportion of cases were resolved with guilty pleas, and a similar proportion of cases were dismissed. Ostensibly, the change in the proportion of cases ending in trial is countered by an increase in the proportion of cases that remain pending by the end of the year. More pending cases can impose a greater toll on prosecutors’ resources (or reflect resource constraints of the prosecutors’ offices or of the courts) leading them to resolve less cases, and less trials, per year. This also highlights more generally the dynamic equilibrium underlying prosecutors’ decisions and the challenges it poses to the study of prosecutorial behavior throughout the chain of criminal justice. Notes 1 McCannon and Wilson (2019) focus on the Duke lacrosse case, but during the period of study other high-profile rape cases garnered media attention as well, including the Kobe Bryant prosecution in 2003 and the vacating of the convictions of the Central Park Five in 2002. Increased public awareness to the accumulating backlogs in the processing and testing of DNA evidence in sexual assault cases was also at the backdrop of the passage of the Debbie Smith Act and the DNA Sexual Assault Justice Act of 2004. The multiplicity of prominent cases and legislation involving sex offenses in close temporal proximity complicates the ability to isolate the impact of any one event in particular.2 https://crime-data-explorer.fr.cloud.gov/explorer/state/north-carolina/crime.3 In addition, sex offense prosecutions are often laborious. If prosecutors reasonably operate under resource constraints, then a reduction in rape prosecutions could potentially allow prosecutors to devote more resources to other felonies and vice versa, and the use of felonies as the denominator may exacerbate any differences.4 Note that the majority of prosecutors need not be concerned about retention: in about a third of the elections in the sample the incumbent prosecutor did not run for reelection and in another third the incumbent prosecutor run uncontested. One may plausibly expect heightened political pressure to be associated with contested reelections specifically and, although both an incumbent and a challenger’s decision to run for election may not be exogenous, it would have been interesting to see those results. Prosecutors’ likelihood of running for reelection may also be correlated with exogenous factors, such as age or the availability of other lucrative employment opportunities (Boylan and Long 2005). Utilizing such variation could have been useful to scrutinize the robustness of the findings and of the proposed political channel specifically.ReferencesBandyopadhyay, Siddhartha, and Bryan C. McCannon. 2014. “The Effect of the Election of Prosecutors on Criminal Trials.” Public Choice 161 (1–2): 141–56.First citation in articleCrossrefGoogle ScholarBjerk, David. 2005. “Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing.” Journal of Law and Economics 48 (2): 591–625.First citation in articleLinkGoogle ScholarBoylan, Richard T. 2005. “What Do Prosecutors Maximize? Evidence from the Careers of US Attorneys.” American Law and Economics Review 7 (2): 379–402.First citation in articleCrossrefGoogle ScholarBoylan, Richard T., and Cheryl X. 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