Profit-Driven Prosecution and the Competitive Bidding Process, BYU Law, 2016
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Profit-Driven Prosecution and the Competitive Bidding Process Maybell Romero J. Reuben Clark Law School 2016 J. Reuben Clark Law School, Brigham Young University Research Paper No. 16-21 Electronic copy available at: http://ssrn.com/abstract=2820312 PROFIT-DRIVEN PROSECUTION AND THE COMPETITIVE BIDDING PROCESS Maybell Romero* “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.”1 ABSTRACT Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing “prosecutorial norm” in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and professional energies to criminal prosecution, and 3) tries to somehow do or effect some vague notion of “justice.” Such norms, however, are regularly challenged and flouted when the prosecutorial function is outsourced. While the outsourcing of nearly every function of the criminal adjudicative process has attracted great attention among scholars and policymakers, a greater critical lens must be focused on prosecutors. The hazards of prosecutorial outsourcing have largely been neglected because existing prosecutorial scholarship focuses on the United States Attorney or district attorneys’ offices in large, metropolitan areas. Not all prosecutorial offices are created equal, however. Cities, towns, and * Visiting Assistant Professor, J. Reuben Clark Law School, Brigham Young University. J.D, U.C. Berkeley School of Law, 2006; B.A., Cornell University, 2003. From 2006 to 2009, the author was a Deputy County Attorney in Cache County, Utah, and from 2010 to 2014 also served on a part-time basis as a Deputy County Attorney in Rich County, Utah. This paper was presented at a Works-in-Progress session at the J. Reuben Clark Law School at Brigham Young University in June 2016; at CrimFest, hosted by Cardozo School of Law at Yeshiva University in July 2016; and at the Inland Northwest Scholars Workshop, hosted by Gonzaga University School of Law in August 2016. Thanks to Gordon Smith, Lisa Sun, Brigham Daniels, Aaron Nielson, Carissa Hessick, Miriam Baer, Bruce Green, Rebecca Roiphe, Laura Appleman, David Pimentel, and to all the participants at the three workshops for your valuable feedback and insights. 1 H.L. MENCKEN, I, CANDIDATE FOR GOVERNOR: AND HOW I GOT LICKED 109 (photo. reprint 1994)(1935). Electronic copy available at: http://ssrn.com/abstract=2820312 2 PROFIT-DRIVEN PROSECUTION [8-Aug-16 other small political subdivisions throughout the country frequently hire prosecutors on a part-time basis through a competitive bidding process, releasing requests for proposals (RFPs) in an effort to procure bids. This practice, however, may be observed not only in small or rural municipalities, but also in cities located near larger population centers. Examples of such municipalities include Ferguson, Missouri, or Kyle, Texas. Such local governments often work with budgets that are not expansive enough to hire a full-time city attorney or prosecutor. Beyond demonstrating the qualifications the applicant attorneys or firms vying for a prosecution contract may have to serve as good prosecutors, applications from such applicants must also demonstrate cost effectiveness by detailing what budget and compensation is required during the term of service specified by the RFP. While engaging in a competitive bidding process may seem like a smart way to handle the problem of governmental waste and financial inefficiencies, it introduces a host of challenges and negative externalities. This Article sheds light on the problems caused by introducing an overtly economic calculation (how cheaply and how profitably the prosecutorial function may be fulfilled) into the criminal adjudicative process. This practice not only flouts American Bar Association and National District Attorney Association prosecutorial standards, but also undermines the prosecutorial norms described above in ways that are likely to destabilize confidence—and the social cohesion born of such confidence—in local criminal justice systems. This practice has the risk, however, of expanding beyond the reach of non-metropolitan jurisdictions to larger counties, cities, and local governments as budgets continue to shrink across the board and devolution and privatization continue to be advanced as curealls to economic woes. INTRODUCTION The shooting death of Michael Brown, an unarmed 18 year-old African American man, at the hands of Darren Wilson, a white Ferguson, Missouri police officer, prompted not only riots and protests in Ferguson and beyond, but also wide-spread debates and soul searching as to the nature of American criminal justice, especially focusing on issues such as law enforcement militarization, limits on the use of deadly force, and interactions between police and people of color.2 2 Similar calls for soul searching have been issued after the untimely deaths of Trayvon Martin, Eric Garner, Walter Scott, and, even a generation ago, Latasha Harlins. See, e.g., John Fritze, Obama calls for ‘soul searching’ in the wake of Gray’s death, BALT. SUN (Apr. 28, 2015), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md- Electronic copy available at: http://ssrn.com/abstract=2820312 8-Aug-16] PROFIT-DRIVEN PROSECUTION 3 A little less than a month after Michael Brown’s death the Civil Rights Division of the Department of Justice initiated its own investigation of the Ferguson Police Department pursuant to the Violent Crime Control and Law Enforcement Act of 1994, the Safe Streets Act, and Title VI of the Civil Rights Act of 1964.3 The Department of Justice’s investigation, in a subsequent report released on March 4, 2015, catalogued and scrutinized a wide array of faulty law enforcement practices perpetrated by the Ferguson Police Department against the public.4 One of the practices highlighted in the report was the Ferguson Police Department’s stubborn focus on generating revenue for the city: “City and police leadership pressure officers to write citations, independent of any public safety need, and rely on citation productivity to fund the City budget.”5 In stark contrast to the intense public scrutiny of the discretion based decision making and profit-motive of Ferguson’s police officers, the role of city prosecutor Stephanie Karr, who also prioritized the enforcement of Ferguson’s municipal code for the purposes of revenue generation, was largely ignored publically; the Civil Rights Division investigation revealed she engaged in a pattern of “recommending higher fines [on high volume offenses] and recommending probation only infrequently,”6 as well as freddie-gray-obama-20150428-story.html; Susan Crabtree, The limits of Obama’s Baltimore soul-searching, WASH. EXAM’R (Apr. 29, 2015), http://www.washingtonexaminer.com/obama-still-soul-searching-on-racialunrest/article/2563750; Andrea Ford & Tracy Wilkinson, Grover Is Convicted in Teen Killing: Verdict: Jury finds Korean woman guilty of voluntary manslaughter in the fatal shooting of a black girl, L.A. TIMES (Oct. 12, 1991), http://articles.latimes.com/1991-1012/news/mn-152_1_voluntary-manslaughter. 3 U.S. Dep’t. of Justice, Joint Statement of United States Attorney Richard G. Callahan, Acting Assistant Attorney General For The Civil Rights Division Molly J. Moran And FBI SAC William P. Woods|USAO-EDMO\Department of Justice (Aug. 13, 2014), https://www.justice.gov/usao-edmo/pr/joint-statement-united-states-attorney-richard-gcallahan-acting-assistant-attorney. U.S. Dep’t of Justice, Justice Department Announces Findings of Two Civil Rights Investigations in Ferguson, Missouri (Mar. 4, 2015), https://www.justice.gov/opa/pr/justice-department-announces-findings-two-civil-rightsinvestigations-ferguson-missouri. 4 See generally, U.S. Dep’t of Justice, Department of Justice Report Regarding the Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf. 5 U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 10 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf). 6 The Department of Justice’s report discussed the pressures upon the Ferguson City Prosecutor engage in revenue generation: Court staff are [sic] keenly aware that the City considers revenue generation to 4 PROFIT-DRIVEN PROSECUTION [8-Aug-16 encouraging police officers to cite individuals with every charge possible per incident in an effort to obtain the “correct volume of cases” on the Ferguson municipal court docket.7 Karr started as the part-time position of City Prosecutor in April 2011.8 At the time of this appointment, she was already serving as Ferguson’s city attorney, providing representation on civil matters.9 While Ms. Karr resigned from her position as Ferguson City Prosecutor on May 24, 2016 (noting, one must wonder if ironically, that she had “greatly enjoyed [her] work with the city of Ferguson”10), she still retains that same or similar title and position in seven other small Missouri cities.11 On July 16, 2016, Ms. Karr was awarded the Lou Czech Award from the Missouri Municipal Attorneys Association for “outstanding contributions to municipal law.”12 This award was meant to celebrate Ms. Karr’s “exemplary service, upholding the highest standards of ethical conduct and professionalism, and a record of outstanding contribution to the field of municipal law.”13 For other counties, cities, towns, and local governments of similar be the municipal court’s primary purpose. Revenue targets for court fines and fees are created in consultation not only with [the police chief], but also the Court Clerk. In one April 2010 exchange with [the police chief] entitled “2011 Budget,” for example, the Finance Director sought and received confirmation that the Police Chief and Court Clerk would prepare targets for the court’s fine and fee collections for subsequent years. Court Staff take steps to sure those targets are met in operating court. For example, in April 2011, the Court Clerk wrote to Judge Brockmeyer (copying [the police chief]) that the fines the new Prosecuting Attorney was recommending were not high enough. The Clerk highlighted one case involving three Derelict Vehicle charges and a Failure to Comply charge that resulted in $76 in fines, and noted this “normally would have brought a fine of all three charges around $400.” After describing another case that she believed warranted higher fines, the Clerk concluded: “We need to keep up our revenue.” There is no indication that ability to pay or public safety goals were considered. Id. at 14 – 15. 7 Id. 8 Complaint at 6, U.S. v. Ferguson, (E.D. Mo. 2016)(No. 4:16-cv-00180). 9 Id. 10 Mariah Stewart, Stephanie Karr steps down as Ferguson’s attorney, ST. LOUIS AM. (May 24, 2014), http://www.stlamerican.com/news/local_news/article_cf8a5544-21fd11e6-a536-03c101d5b28c.html. 11 Curtis, Heinz, Garrett & O’Keefe, http://www.chgolaw.net/attorneys/stephanie-ekarr-43 (last visited May 26, 2016). The cities are Calverton Park, Brentwood, Edmundson, Hazelwood, Bellerive Acres, and Bel-Nor. 12 Curtis, Heinz, Garret & O’Keefe, News and Insights from CHGO, http://www.chgolaw.net/news/chgo-attorney-stephanie-karr-wins-prestigious-award-77 (last visited July 26, 2016). 13 Id. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 5 size, hiring a full-time prosecutor or district attorney is often costprohibitive, if not impossible given scarce financial resources.14 In cities like Ferguson (generally too small to justify hiring a full-time district attorney) a prosecutor may be appointed to the post, often by a mayor or a city counsel. Candidates for such outsourced prosecution positions15 are often required to go through a competitive bidding process in which costsavings, fine generation, and outbidding competitors are prioritized over other evaluative concerns, submitting a bid in response to a request for proposal (“RFP”) issued by the jurisdiction in question. The prosecutors hired pursuant to this method of outsourcing the prosecutorial function have little in common with the popular cultural conception of district attorneys and other criminal prosecutors in the United States. In the popular imagination, a prosecutor is a practitioner who has been elected to the position, who leads an office in an attempt to seek justice on behalf of either “the People” or “the State.” Pop culture is rife with such examples, ranging from the ADAs of Law and Order to the bumbling yet consistently honest Hamilton Burger of Perry Mason, who (with his extraordinarily bad record at trial) described his work as requiring him merely to “do justice, and justice is served when a guilty man is convicted and when an innocent man is not.”16 Outsourcing prosecution through RFPs also creates serious tensions with the professional standards that bind prosecutors. The American Bar Association has promulgated prosecution function standards “to be used as a guide to professional conduct and performance.”17 Under these standards the “duty of a prosecutor is to seek justice, not merely to convict.”18 It is also incumbent upon the prosecutor to “seek reform and improve the administration of criminal justice.”19 The Model Rules of Professional Conduct, which have been adopted in whole or part by all 50 states20, also 14 Roger A. Fairfax, Jr., Delegation of the Criminal Prosecution Function to Private Actors, 43 U.C. DAVIS L. REV. 411, 419 (2009). 15 See infra Section II.C. 16 Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be An Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm. on the Judiciary, 111th Cong. (statement of Judge Sotomayor). Justice Sotomayor also discussed her fondness and admiration for Hamilton Burger in her autobiography: “I liked that he was a good loser, that he was more committed to finding the truth than to winning his case.” SONIA SOTOMAYOR, MY BELOVED WORLD 80 (2013). 17 CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION Standard 3-1.1 (AM. BAR. ASS’N 2015)(herein “ABA Prosecution Standards”). 18 Id. at Standard 3-1.2(c) 19 Id. at Standard 3-1.2(d) 20 Am. Bar Ass’n, Alphabetical List of States Adopting Model Rules, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_ of_professional_conduct/alpha_list_state_adopting_model_rules.html (last visited July 31, 6 PROFIT-DRIVEN PROSECUTION [8-Aug-16 bear upon the ethical obligations that are incumbent upon prosecutors. The National District Attorneys Association has similarly promulgated its own ethical standards for prosecutors, which are rather more detailed than those from the ABA. While it is instructive to examine the issues and conundrums raised by relying on outsourced prosecutors through the lenses of formulaic rules seen by many who practice law as the only minimal requirements necessary to consider when reflecting on their own comportment, this Article endeavors to hold our nation’s prosecutors, especially those local prosecutors to whom very little scholarship has been devoted, to the higher standards and norms that are popularly expected of them and that the needs for public accountability and devotion to “seeking justice” demand. While “[e]fficiency gains are the major reason that governments enter into privatization agreements,”21 the use of outsourced prosecution services, particularly those hired through an RFP/competitive bidding process is dangerous, subjecting the hired prosecutors to much of the same political pressure as elected officials while also generating unusual and outsized pressures to prioritize budgets and fine/fee generation. Even in the recent years during which criminal justice system reform has been discussed by both political liberals and conservatives alike, there is still a general belief that wrongfully prevails—that all prosecutors are elected. A piece published by The Atlantic stated that “[i]n all but four states, prosecutors are elected to office—about 2,400 of them[.]”22 In his recent address to the Democratic National Convention, President Barack Obama exhorted voters that if they “want more justice in the justice system, then we’ve all got to vote—not just for a president, but for mayors, and sheriff’s, and state’s attorneys, and state legislators. That’s where the criminal law is made.”23 While boons to those who have long been advocating for greater focus on local criminal justice system reform, both statements exhibit a lack of knowledge regarding the criminal justice system on a much more local level than that of federal or state government: Not all prosecutors are elected at all. This Article builds on the work of Professor Roger Fairfax, who has previously studied the ills that arise from varying methods of outsourcing 2016). 21 Wendy Netter Epstein, Contract Theory and the Failures of Public-Private Contracting, 34 CARDOZO L. REV. 2211, 2227-2228 (2013). 22 Juleyka Lantigua-Williams, Are Prosecutors the Key to Justice Reform?, THE ATL. (May 18, 2016), http://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-thekey-to-justice-reform/483252/. 23 President Barack Obama, Address to the Democratic National Convention (Jul. 27, 2016), https://www.whitehouse.gov/the-press-office/2016/07/28/remarks-presidentdemocratic-national-convention. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 7 the prosecutor’s role to private actors, providing useful general overviews.24 This Article, however, focuses that analysis, examining and highlighting the particular risks inherent in hiring prosecutors through RFPs. It identifies the specific incentives, both personal and institutional, that arise in smaller, often rural but also suburban and urban jurisdictions throughout the country when prosecutors are procured by way of RFPs, which tend to focus the prosecutor’s attention on efficiency and revenue generation, rather than justice—a focus compounded by the relatively short-term nature of many outsourcing contracts and the concomitant need for the prosecutor to reapply (and demonstrate cost-effectiveness) on a regular basis. The Article proceeds as follows: Part I examines the history of the American prosecutor’s role by focusing on scope of work as well as historical methods of compensation, demonstrating that the prosecutorial norm of a full-time public servant paid on a salary basis arose for a number of reasons. It also details the evolution of these norms from a pop cultural perspective as well as that from the more formalized, yet mainly aspirational, rules outlined in both American Bar Association and National District Attorney Association Standards. Part II describes the outsourcing of prosecution generally, with Part II.A. examining the challenges that may force local governments to outsource their criminal prosecutors. Part II.B. provides more background on the concepts of outsourcing and privatization, while Part II.C. introduces the RFP and competitive bidding process. Part II.D. analyzes the RFP language from a small selection of local governments from around the nation, highlighting language that creates greater pressure and incentives for prosecutors not only to save costs but also to generate revenue. Part III examines multiple incentives and disincentives both on the part of an individual prosecutor as well as local government councils, mayors, and executives to concern themselves with their bottom lines rather than providing services focused on providing justice to the public. Part III also demonstrates that prosecutorial outsourcing by way of RFP is substantially different and uniquely problematic compared to procurement for other services or goods, as doing so amounts to selling the concept of “justice” to the lowest bidder. Part IV concludes. I. THE AMERICAN PROSECUTOR’S EVOLVING ROLES A. From Private Actor to Public Servant 24 Roger A. Fairfax, Jr., Outsourcing Criminal Prosecution?: The Limits of Criminal Justice Privatization, 2010 U. CHI. LEGAL F. 265 (2010); and Delegation of the Criminal Prosecution Function to Private Actors, supra note, at 14. 8 PROFIT-DRIVEN PROSECUTION [8-Aug-16 While the usual norms characterizing a criminal prosecutor in the United States encompass, most often, a full-time government attorney elected directly by the people of a particular political subdivision, such a norm is unique to the United States and is of recent invention. Criminal prosecution processes in the colonies quickly came to diverge from those in England, where victims themselves funded prosecutions, hiring their own attorneys.25 Due to Dutch influence, public prosecutors with varying titles such as “state’s attorney,” “district attorney,” “county attorney,” and “attorney general” proliferated; thus, public prosecutors came to dominate American criminal justice systems far ahead of any English counterparts.26 These prosecutorial positions were initially filled by appointment, as were many other positions in state and local government, with great variance from state to state as to who exercised this power of appointment.27 American criminal prosecutors were also not originally full-time government employees, but usually took such positions to supplement income from private practices or other business ventures.28 As such, attorneys employed as public prosecutors were often “young, inexperienced attorneys or older, generally incompetent ones.”29 Prosecutorial budgets in the early republic were often anemic, resulting in complaints of overwork for too little pay so very reminiscent of grievances from today’s government employees.30 Talented, experienced criminal law attorneys, therefore, were disincentivized from considering such work, choosing to work as either defense counsel or private prosecutors hired by victims.31 Andrew Jackson’s assumption the presidency in 1829 began a period of rampant political patronage and reward, also widely known today as the “spoils system.” While rewarding loyal supporters with posts and positions had certainly been done before, Jackson’s presidency ushered in a period of American politics in which the system of political patronage 25 The Crown Prosecution Service, History, http://webarchive.nationalarchives.gov.uk/20070205205701/http:/www.cps.gov.uk/about/h istory.html (last visited June 16, 2016). 26 Robert M. Ireland, Privately Funded Prosecution of Crime in the NineteenthCentury United States, 39 AM. J. LEGAL HIST. 43, 43 (1995). 27 Michael J. Ellis, Note, The Origins of the Elected Prosecutor, 121 YALE L.J. 1528, 1530, 1537 (2012). 28 Id. at 1539. 29 Ireland, supra note 26, at 43. 30 Id. at 45. 31 “One of Kentucky’s more able prosecutors admitted in 1879 that in his district it was ‘almost impossible to get anyone to take office. . . .’ In the same year, a Kentucky federal district judge remarked that ‘in almost every criminal trial in this state there is on the side of the Government youth and inexperience. . . whilst on behalf of the accused is arrayed all the learning . . . experience, and . . . talent.” Id. (citation omitted). 8-Aug-16] PROFIT-DRIVEN PROSECUTION 9 reached a never-before seen zenith.32 An unprecedented number of public offices were filled through this system of patronage, including prosecutors and other government attorneys.33 In reaction to this system, a greater public support for popular election of district attorneys and prosecutors took hold; “electing prosecutors also allowed communities to maintain control over the functions of local government.”34 By 1877, every state had adopted the use of elected prosecutors at one level or the other, as would every other state admitted to the Union thereon.35 Simply because every state adopted some form of the elected prosecutor, either at the state attorney general level or district or county attorney level, however, does not mean that all positions handling criminal prosecutions were elected. Particularly in small, rural jurisdictions (cities, towns, counties, etc.) that neither had the budget to pay a full-time criminal prosecutor nor the population to make an election a practical option for choosing a criminal prosecutor (as such jurisdictions would have been lucky to have even one attorney living within their boundaries), alternatives to public election have persisted. These mainly break down into three models – 1) the part-time prosecutor model, under which attorneys are either elected to serve on a part-time basis while being allowed to engage in either a private law practice or other venture, or 2) the prosecution outsourcing model (herein the “outsourcing model,” or “outsourcing), under which local governments contract with law firms or individual attorneys for (usually part-time) prosecutorial services for a term of years, and 3) victim retained prosecution.36 Attorneys operating under an outsourcing model are often selected after responding to posted requests for proposals (herein “RFPs”). B. Prosecutorial Norms The widely accepted norm that prosecutors should not be influenced by concerns apart from serving the public’s interest arose in the United States much earlier than in the United Kingdom. For example, in Commonwealth v. Knapp, both the attorney-general and solicitor-general of Massachusetts were working together to prosecute a murder.37 The 32 Susan Rose-Ackerman, Political Corruption and Democracy, 14 CONN. J. INT’L. L. 363, 376 (1999). 33 Bruce J. Winick, Harnessing the Power of the Bet: Wagering with the Government as a Mechanism for Social and Individual Change, 45 U. MIAMI L. REV. 737, 787 (1991) 34 Ellis, supra note 27, at 1558. 35 Id. at 1568. 36 DAVID W. NEUBAUER & HENRY F. FRADELLA, AMERICA’S COURTS AND THE CRIMINAL JUSTICE SYSTEM 154 (2016). Some states still allow for victims to hire and fund their own prosecutors, which would present a third but uncommon model. 37 Commonwealth v. Knapp, 27 Mass 477, 490 (1830). 10 PROFIT-DRIVEN PROSECUTION [8-Aug-16 attorney-general sought to have a private prosecutor appointed to the prosecution team to assist in the case.38 On appeal, Knapp argued that, pursuant to Massachusetts’s statute delineating the roles of prosecutors at the time, that any privately compensated prosecutor should not have been allowed to assist in the case.39 The Knapp court explained that In cases where civil rights are in controversy and the form of proceeding is by indictment or information, the Court does not perceive any objection against permitting the party in interest to employ counsel in aid of the law officers. The same reasons would not apply to cases involving public considerations only. In such cases the statute supposes that the prosecution will be conducted by the law officers, for their salaries, and without any other compensation whatever . . . [T]his case presents the question, whether a counsellor may, at the request of the attorney-general, be admitted to aid him in the prosecution, without any pecuniary consideration being paid to him, or any other consideration which may be supposed to influence him, excepting a disinterested regard for the public good.40 Here, the Knapp court made an important and early distinction between cases in which there was a discernable “party of interest,” such as a victim, versus cases that involved a larger injury to “the public good.”41 A multitude of other states addressed whether privately paid prosecutors should be allowed to handle criminal actions on behalf of whatever jurisdiction such attorneys purported to represent; many of these cases were heard by state supreme courts through out the 1800s. For example, the Michigan Supreme Court held that that appointment of an 38 Id. at 489. Id. (Mass. St. 1807, c. 18, required county attorneys to act on behalf of the state “provided, that the attorney-general, when present, and, in his absence, the solicitorgeneral, if present, shall, in any court, have the direction and control of prosecutions and suits in behalf of the Commonwealth.” It also provided that “no attorney-general, solicitorgeneral or county-attorney shall receive and fee or reward from or in behalf of any prosecutor, for services in any prosecution, to which it shall be his official duty to attend.” (internal quotation marks omitted)). The appellant operated under the assumption that the attorney that the Commonwealth sought to appoint was being privately compensation; the attorney in question, however, explained that he was not working for any pecuniary inducement at all. 40 Id. at 490-491. 41 The Knapp court held that the private prosecutor who assisted the attorney general should have been allowed to do so as 1) he did so at the attorney-general’s request for the murder case alone and 2) the private prosecutor was doing the work pro bono. 39 8-Aug-16] PROFIT-DRIVEN PROSECUTION 11 additional prosecutor during the pendency of a forgery case was permissible, given that this attorney “was not employed by any private party, that he had no interest in the matter, that he was associated in business with the prosecuting officer, and had attended the prosecution on behalf of the people in the justice’s court.”42 Such cases present the early formation of a normative standard that prosecutors were expected to meet—that they should somehow be shielded from external or private interests and should only concern themselves with the public good and with the fair administration of justice.43 While accepting the mantle of such elevated ethical expectations would initially appear to create additional burdens upon prosecutors, prosecutors have used (or at least attempted to use) such higher standards to their tactical advantage by variously implying their greater trustworthiness in comparison to other actors in the criminal justice system, such as defendants or defense attorneys, or arguing for troublingly expansive roles.44 In oral argument for Miranda v. Arizona, Gary K. Nelson, assistant Arizona attorney general, attempted to bolster the state’s argument (that allowing for counsel at interrogations would unduly hamper investigative efforts) by relying on the prosecutor’s perceived duty to do justice: Our adversary system as such is not completely adversary even at the trial state in a criminal prosecution because Canon Five of the Canons of Ethics of the American Bar Association which are law in Arizona by rule of court says that the duty of the prosecution is not simply to go out and 42 People v. Foote, 93 Mich. 38, 39-40 (1892). The prosecutor’s position was conceived as “. . . one involving a duty of impartiality not altogether unlike that of the judge himself.” Meister v. People, 31 Mich. 99, 104 (1875). See also Berger v. United States, 295 U.S. 78, 88 (1935)(speaking in the context of federal prosecutions): 43 The United States Attorney is the representative not of an ordinary party to a controversy, but a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt should not escape or innocence suffers. He may prosecute with earnestness and vigor – indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. 44 Professor Bruce Green noted a similar point in his article Why Should Prosecutors “Seek Justice”? Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J. 607, 614-615 (1999). 12 PROFIT-DRIVEN PROSECUTION [8-Aug-16 convict but is to see that justice is done. I know, I’ve talked to many prosecutors myself in my short time, I’ve gotten as much satisfaction out of the cases when I – which I was compelled to confess error in a case where a man has been deprived of his rights by due process that I’ve gotten satisfaction in being upheld in a tight case in court.45 Prosecutors have also, for example, attempted to leverage high ethical expectations when vouching improperly for themselves,46 witnesses,47 or even a combination thereof.48 The heightened duty placed upon prosecutors to do justice may function as an additional advantage the government can wield against defendants, often paired with greater material resources as well as the assistance of law enforcement. Pop cultural representations of prosecutors are also illustrative of prevailing prosecutorial norms both past and present (as well as other social mores, customs, and beliefs).49 There still is, of course, a great deal of 45 Oral Argument at 55:37, Miranda v. Arizona, 384 U.S. 436 (1966) (No. 759), https://www.oyez.org/cases/1965/759. 46 Prosecutors vouch improperly for themselves or witnesses when they “place the prestige of [their] office behind the government’s case by, [for example], imparting [their] personal belief in a witness’s veracity or implying that the jury should credit the prosecution’s evidence simply because the government can be trusted.” U.S. v. PerezRuiz, 353 F.3d 1, 9 (1st Cir. 2003)(citing U.S. v. Figueroa-Encarnación, 343 F.3d 23, 28 (1st Cir. 2003). For an additional example of a prosecutor improperly vouching for themselves, see, e.g., Shelton v. U.S., 983 A.2d 363, 373, note 22 (in which a prosecutor attempted to bolster the government’s case by emphasizing the first prosecutor’s ethical duties): At another point the prosecutor asked: Prosecutor: In fact, [the first prosecutor] told you that the last thing he wanted to do was to have the wrong person in jail; isn’t that right? [Witness]: He told me that but I didn’t believe him […] 47 See, e.g., Greenberg v. U.S., 280 F.2d 472, 475 (1st Cir. 1960)(“To permit counsel to express his personal belief in the testimony (even if not phrased so as to suggest knowledge of additional evidence not known to the jury), would afford him a privilege not even accorded to witnesses under oath and subject to cross-examination. Worse, it creates the false issue of the reliability and credibility of counsel. This is peculiarly unfortunate if one of them has the advantage of official backing.”). 48 See, e.g., U.S. v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005)(quoting statements made by the prosecutor at trial in which the prosecutor offered improper statements at trial, vouching for himself and law enforcement by referring to the prestige and veracity of the government). 49 MICHAEL ASIMOW & SHARON MADER, LAW AND POPULAR CULTURE 153-180 8-Aug-16] PROFIT-DRIVEN PROSECUTION 13 debate as to what extent pop culture instigates change on its own, a question which this Article will not attempt to address or answer but which cognitive psychologists have addressed extensively through the formulation and debate surrounding cultivation theory.50 In the first decades of the 1900s, as prosecutors began to take on a more central and powerful role in the criminal justice system,51 they also began to take on a greater pop cultural role. In the 1930s, prosecutors joining police in the fight against organized crime also boosted the prestige and visibility of the job throughout the nation.52 This new spotlight helped inspire the proliferation of fictitious prosecutor/district attorney roles in popular media.53 A fascinating example of an early fictitious district attorney can be found by listening to the 1940s radio drama Mr. District Attorney, which Professor David Ray Papke noted was generally “free of complexity, and character motivation and the conflict between lawbreakers and law enforcement are easy to understand.”54 Mr. District Attorney, who otherwise was nameless for the majority of the show’s many years on the air, was depicted as “honest, brave, and devoted to his work.”55 The show’s opening lines, intoned by the show’s announcer (known as the “Voice of the Law”) proclaimed that Mr. District Attorney was the “[c]hampion of the people, defender of truth, guardian of our fundamental rights – life, liberty, and the pursuit of happiness.” Such opening lines may strike today’s listeners as simultaneously quixotic, wooden, and misleading – they are not, however, much different than those uttered in the opening scenes of every episode of the longestrunning crime drama in the United States, Law & Order: “In the criminal justice system, the people are represented by two separate, yet equally important groups: The police who investigate crime and the District Attorneys who prosecute the offenders […]” The contrast between this (2004). 50 Cultivation theory examines the interaction between media and society, specifically operating as “‘a theory of media’s role in social control. This is, it examines how media are used in social systems to build consensus…on positions through shared terms of discourse and assumptions about priorities and values.’ . . . Crucially, cultivation theory assumes that, since mass media is produced by cultural elites in a commercial system, ‘the system works so as to benefit social elites.’” Cynthia D. Bond, “We, the Judges”: The Legalized Subject and Narratives of Adjudication in Reality Television, 81 UMKC L. REV. 1, 16 (2012). 51 See, Allen Steinberg, The “Lawman” in New York: William Travers Jerome and the Origins of the Modern District Attorney in Turn-of-the-Century New York, 34 U. TOL. R. REV. 753 (2003). 52 Id. at 783 – 784. 53 David Ray Papke, Mr. District Attorney: The Prosecutor During the Golden Age of Radio, 34 U. TOL. L. REV. 781, 782 (2003). 54 Id. at 788. 55 Id. at 790. 14 PROFIT-DRIVEN PROSECUTION [8-Aug-16 public perception of prosecutors and the public perception of defense attorneys is telling. While prosecutors hold a greater position of trust and authority not only in pop culture but also their communities, defense lawyers conversely “generally toil amid a culture of scorn” and “are often perceived as amoral gunslingers who thrive on the thrill of beating the system and defending the guilty.”56 Comparing state prosecutorial versus indigent defense budgets also illustrates the extent to which the prosecution function is prioritized over that of Gideon mandated indigent defense: in 2007 the total operating budget of state prosecutors’ offices throughout the country was $5.8 billion,57 while states in 2012 only spent $2.3 billion on public defense.58 There has been of late, however, a chipping-away, if not crisis, of public confidence in the criminal justice system.59 Long-standing features of American criminal law and justice, such as the death penalty, have been reconsidered in the public consciousness.60 Confidence in prosecutors has lately been shaken as well, with notable examples arising from the deaths of Michael Brown in Ferguson and Eric Garner in Staten Island. In both cases prosecutors sought indictments before grand juries against police officers Darren Wilson and Daniel Pantaleo, respectively, and in both of these cases the prosecutors failed. The burden of proof for obtaining a grand jury indictment is the exceptionally low probable cause standard;61 the laxity of this standard was perhaps most familiarly styled by Sol Wachtler in Tom Wolfe’s The Bonfire of the Vanities: “[A] grand jury would ‘indict a ham 56 Rod Smolla, The Best Defense, SLATE (Nov. 2, 2005), http://www.slate.com/articles/news_and_politics/jurisprudence/2005/11/the_best_defense.h tml. 57 Steven W. Perry & Duren Banks, Prosecutors in State Courts, 2007 – Statistical Tables, Bureau of Justice Statistics, 2 (2011), http://www.bjs.gov/content/pub/pdf/psc07st.pdf. The 2007 operating budget was a decrease from the 2001 total of $6.1 billion (amounting to 5%). 58 Erinn Herberman & Tracy Kyckelhahn, State Government Indigent Defense Expenditures, FY 2008-2012 – Updated, Bureau of Justice Statistics (2015), http://www.bjs.gov/content/pub/pdf/sgide0812.pdf. I rely on the most recent statistics from the Bureau of Justice Statistics for both figures on prosecutorial and defense spending. Studies examining both rolls are not usually conducted nor release simultaneously nor based on the same years, unfortunately. 59 As noted by Carolyn B. Ramsey back in 2002 and which is still the status quo, “[e]mpirical scholarship on the relationship between public opinion and criminal justice has not focused primarily on prosecutorial ethics.” Carolyn B. Ramsey, 39 AM. CRIM. L. REV. 1309, 1319 (2002). 60 See Richard C. Dieter, , A Crisis in Confidence: Americans’ Doubts About the Death Penalty, Death Penalty Info. Ctr. (2007), http://www.deathpenaltyinfo.org/CoC.pdf. 61 Kaley v. U.S., 134 S.Ct. 1090, 1103 (2014)(“Probable cause, we have often told litigants, is not a high bar: It requires only the ‘kind of “fair probability” on which ‘reasonable and prudent [people], not legal technicians, act.’”) 8-Aug-16] PROFIT-DRIVEN PROSECUTION 15 sandwich,’ if that’s what you wanted.” The inability to secure indictments against Wilson and Pantaleo ignited weeks of civil unrest, with many alternately doubting the competence or vigilance of the prosecutors involved.62 While there has been a greater recent push toward bipartisan criminal justice reform, much of that effort has been focused, understandably, on the roles of law enforcement and defense counsel. One can, at best, speculate as to the reasons for those emphases. Perhaps latent acceptance of the prosecutorial norms thus far described has shielded the prosecutorial role from the spotlight. Perhaps prosecutors are so aligned with law enforcement in the public mind that efforts to reform police and policing somehow feel like they address potential evils arising amongst their prosecutorial counterparts. Moreover, any criticism of prosecutors, both from the legal academy and other sources, largely falls on those operating in the federal system; this disproportionate focus on federal criminal prosecution is easily explained by the greater homogeneity of the federal system, which renders it correspondingly more straightforward to study, especially with tools of data collection and analysis.63 This Article makes a unique contribution to prosecution focused scholarship by departing from that usual federal focus and to concentrating on the prosecutorial functions of those smaller jurisdictions such as counties and municipalities that often go neglected by scholars and the wider, popular 62 See, e.g., Monica Davey & Julie Bosman, Protests Flare After Ferguson Police Officer Is Not Indicted, N.Y. TIMES (Nov. 24, 2015), http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-browngrand-jury.html; Travis Andersen et al., Thousands protest Eric Garner case in downtown Boston, BOSTON GLOBE (Dec. 4, 2014), http://www.bostonglobe.com/metro/2014/12/04/protest-planned-christmas-tree-lightingcommon/875sx4ZA1JcHliKte9UyCJ/story.html; Brandt Williams, Protests shut down part of I-35W for over an hour, MPR NEWS (Dec. 4, 2014), http://www.mprnews.org/story/2014/12/04/protesters-close-i35w; Editorial Board, A Crisis in Confidence in Prosecutors, N.Y. Times (Dec. 8, 2014), http://www.nytimes.com/2014/12/09/opinion/a-crisis-of-confidence-inprosecutors.html?_r=0. 63 “The United States is a federal system, and both the federal government and the states have the authority to define and punish criminal violations. This division of responsibility permits significant difference between federal and state practice, and . . . between and within individual states. This variability is enhanced by traditions concerning the training and selection of both individual prosecutors and chief prosecutors. In general, the U.S. systems promote some form of democratic accountability, and the fragmentation of authority virtually guarantees that different offices will develop different priorities and practices.” Sara Sun Beale, Prosecutorial Discretion in Three Systems: Balancing Conflicting Goals and Providing Mechanisms for Control, in DISCRETIONARY CRIMINAL JUSTICE IN A COMPARATIVE CONTEXT 27, 31 (Michele Caianiello & Jaqueline S. Hodgson eds., 2015). 16 PROFIT-DRIVEN PROSECUTION [8-Aug-16 media. C. Governance of Prosecutors Under ABA and NDAA Standards and ABA Model Rules Both the federal government and every state in the nation has the authority, to differing degrees, to prosecute criminal offenses generally committed within their borders. Engaging in study of the criminal law on a state level is, of course, often challenging given the great variance in laws and policies between all the states. To some degree, however, there is great unity in the promulgation of each state’s rules of professional conduct; each state has, to some extent, adopted the American Bar Association’s Model Rules of Professional Conduct (herein “Model Rules”), with Michigan, West Virginia, California, Hawaii, and Georgia not making any changes since their original adoption.64 The bar associations of each of the states, with the exception of Wyoming, issue public ethics opinions in an effort to educate attorneys about the proper application of their respective ethical rules as well. The ABA has also promulgated its Criminal Justice Standards for the Prosecution Function (herein “ABA Prosecution Standards”), serving as a complement to the Model Rules and providing greater specificity than the Rules regarding concerns unique to prosecutors.65 The National District Attorneys Association has also circulated its own set of National Prosecution Standards (herein “National Prosecution Standards”).66 These National Standards “are much more comprehensive 64 Am. Bar Ass’n, States Making Amendments to the Model Rules of Professional Conduct Dates of Adoption, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_ of_professional_conduct/chrono_list_state_adopting_model_rules.html (last visited June 12, 2016). 65 The ABA Prosecution Standards explain that: [T]hese Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are written and intended to be entirely consistent with the ABA’s Model Rules of Professional Conduct, and are not intended to modify a prosecutor’s obligations under applicable rules, statutes, or the constitute. They are aspirational or describe ‘best practices,’ and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability, or to serve as a predicate for a motion to suppress evidence or dismiss a charge.” ABA Prosecution Standards, supra note 17, at Standard 3-1.1(b). 66 Similarly to the ABA Prosecution Standards, the National Standards were “intended to supplement rather than replace the existing rules of ethical conduct that apply in a jurisdiction.” NAT’L PROSECUTION STANDARDS (NAT’L DIST. ATT’YS ASS’N 2009)(herein “NDAA Standards”). 8-Aug-16] PROFIT-DRIVEN PROSECUTION 17 than the [Model Rules]” as well as the ABA Standards,67 likely due to the National Standards being written “for prosecutors by prosecutors.”68 Both sets of standards are similar in that they “are hortative in nature”69 and begin by grounding themselves in an exhortation to prosecutors to “seek justice,”70 whatever that may mean. I. Proposed organization of prosecution functions Both sets of standards from the ABA and NDAA forthrightly express an overwhelming preference for full-time attorneys of the sort that follow traditional prosecutorial norms as described in Part I.B., above. The ABA Prosecution Standards provide that (a) The prosecution function should be performed by a lawyer who is (i) a public official, (ii) authorized to practice law in the jurisdiction, and (iii) subject to rules of attorney professional conduct and discipline.71 A brief justification for limiting the preferred organization of the prosecutorial function is also provided: “Prosecutors whose professional obligations are devoted full-time and exclusively to the prosecution function are preferable to part-time prosecutors who have other potentially conflicting professional responsibilities.”72 The National Prosecution Standards also encourage a full-time rather than part-time scheme in even stronger terms than found in the ABA Prosecution Standards: The chief prosecutor in a jurisdiction should be a full-time position. A full-time prosecutor, whether the chief prosecutor or otherwise, should neither maintain nor profit from a private legal practice. A chief prosecutor may serve part-time in those jurisdictions that are unable or unwilling to fund a full-time prosecutor, but while serving as a part67 Mitchell Stephens, Ignoring Justice: Prosecutorial Discretion and the Ethics of Charging, 35 N. Ky. L. Rev. 53, 56 (2008). 68 NAT’L PROSECUTION STANDARDS, Background (NAT’L DIST. ATT’YS ASS’N, 1991). 69 See Stephens, supra note 67. 70 NDAA Standards, supra note 66, at Standard 1-1.1; ABA Prosecution Standards, supra note 17, at Standard 3-1.2(b). 71 ABA Prosecution Standards, supra note 17, at Standard 3-2.1(a). 72 Id. 18 PROFIT-DRIVEN PROSECUTION [8-Aug-16 time prosecutor may not engage professional conduct that is inconsistent with the need for prosecutorial independence.73 Both sets of standards explicitly warn against deviating from the prosecutorial norm of full-time government employment and representation for the very salient reason of avoiding the inevitable conflicts of interest that will arise by both serving the government as well as serving private clients while focusing on perceptions of propriety.74 Both sets of standards also, however, envision circumstances under which hiring by jurisdictions of part-time prosecutors is, unfortunately, an inevitability. II. OUTSOURCING OF PROSECUTORIAL SERVICES Part II introduces readers to the challenges faced by smaller jurisdictions that render them unable to either hire a full-time city or county prosecutor or have elections to fill such a position. It then goes on to give an operational definition of “outsourcing” for purposes of this Article and to 73 NDAA Standards, supra note 66, at Standard 1-1.3. The Commentary to the National Standards addresses the need for full-time prosecutors, explaining that: 74 A full-time chief prosecutor confers many advantages on his or her jurisdiction. Among other advantages, the prosecutor is not distracted by a private law practice; is readily available for consultation with law enforcement officers; is more accountable to society for his or her decisions and performance; and, is not vulnerable to the various potential conflicts of interest that can plague a part-time prosecutor. Despite those advantages, there are many part-time prosecutors in the United States. This situation is generally created by the societal preference for local accountability and control in locations where the sparse population, geographic size of the jurisdiction, budget and caseload do not warrant that the position be approached as a full-time one. The position of the standard is that the office be approached on a fulltime basis insofar as that is possible in any given jurisdiction. Whether full-time or part-time, the position should be approached as a career and not as a steppingstone or sideline. This means that the prosecutor is prepared to bring to his public duties an orientation of primacy. No matter what other activities the prosecutor is involved in, his public duties come first. Part-time prosecutors should not represent persons in criminal matters in other jurisdictions. This is because of the potential for conflicts with his or her duties as a prosecutor and because of the perception that such representation would decrease his or her dedication to the performance of prosecutorial functions. Id. at Standard 1-1.6 cmt. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 19 describe the RFP competitive bidding process more fully. Subsequently, this Part describes and analyzes prosecutorial RFPs issued from ten different local governments throughout the United States, with particular focus on language that would drive prosecution to become more profitmotivated as well as other relevant factors such as clauses regulating future removal of the aspiring part-time prosecutor/RFP applicant. The vast majority of scholarship addressing the criminal law occurs at a federal or state level; small local governments such as cities, towns, or counties in which municipal or justice courts, as well as their city attorneys/prosecutors, mostly handle misdemeanors75 are rarely examined by the media, let alone by legal scholars. Such a paucity in scholarship presents a significant gap. David Carroll, executive director of the Sixth Amendment Center in Boston, spoke to the importance of this neglect, noting that “[m]isdemeanors matter. For most people, our nation’s misdemeanor courts are the place of initial contact with our criminal justice systems. Much of a citizenry’s confidence in the courts as a whole – their faith in the state’s ability to dispense justice fairly and effectively – is framed through these initial encounters.”76 The most recent (and possibly only widely available) national survey of prosecutors in smaller jurisdictions was undertaken by the Department of Justice’s Bureau of Justice Statistics (“BJS”), which released its results in January 2003.77 While most popular media such as television or movies depict prosecutors in large and gritty cities, about 23% of the nation’s prosecutors’ offices has a chief prosecutor who was hired on a parttime basis.78 The median budget for offices with part-time prosecutors was only $95,000.79 Nearly 9 in 10 of the nation’s prosecutors practice in an office servicing populations of less than 250,000: This figure represents 40% of the nation’s population.80 The prosecutors’ offices in these smaller 75 Deviating from this trend and demonstrating the difficulty of being able to describe local criminal justice systems by way of generalization, prosecutors who are hired to represent counties, for example, may have the ability and need to prosecute more serious felony offenses. 76 Sixth Amendment Center, The Right to Counsel in Utah: An Assessment of TrialLevel Indigent Defense Services, x (2015), http://sixthamendment.org/6ac/6AC_utahreport.pdf. 77 Carol J. DeFrances, State Court Prosecutors in Small Districts, 2001, Bureau of Justice Statistics, 2 (2013), http://www.bjs.gov/content/pub/pdf/scpsd01.pdf. (“Even though they constitute the majority of the prosecutors’ offices nationwide, little information has been reported about prosecutors’ offices serving smaller districts with a population under 250,000. The 2001 [National Survey of Prosecutors] provides the first opportunity to comprehensively examine these offices.”) 78 Id. at 9. 79 Id. 80 Id. at 1. 20 PROFIT-DRIVEN PROSECUTION [8-Aug-16 districts overwhelmingly have had difficulties hiring new attorneys given their scanty budgets and inability to offer competitive salaries to new attorneys, though one must wonder whether how serious this problem has been of late, given the large numbers of unemployed and underemployed law graduates.81 While this data is interesting and hints at the challenges posed to prosecutors in small districts, including those where a city, county, or other governmental subdivision is unable or unwilling to find a full-time prosecutor, the BJS survey only covered, unfortunately, “all chief prosecutors that tried felony cases in State courts of general jurisdiction.”82 Data regarding the operation of criminal justice systems on a more localized level, including cities, towns, and counties, is desperately needed. While the BJS survey was certainly extensive, receiving responses from most of the 2,341 prosecutors’ offices that handled felonies, with myriad cities, counties, towns, and other districts that have their own prosecutors, it is no wonder that a widespread survey of such prosecutors has not yet been accomplished. A. Spatial Inequality, Dwindling Tax Bases, and Devolution Additional challenges face small, rural jurisdictions that might be inclined to hire a full-time prosecutor but for their isolation83 and poor tax84 bases; this Article would be remiss in not discussing these difficulties in brief. There has recently been some desperately needed focus on access to justice in rural and smaller communities in legal scholarship.85 Much of 81 Id. at 3. Id. at 1. 83 “Rural places are often defined by their ‘relatively sparse populations and relative isolation from urban areas,’ sometimes referred to as the ‘ecological component’ of rurality.” Lisa R. Pruit & Bradley E. Showman, Law Stretched Thin: Access to Justice in Rural America, 59 S.D. L. REV. 466, 486 (2014)(quoting Frank L. Farmer, The Definition of “Rural.” in Encyclopedia of Rural America: The Land and the People 833 (Gary A. Goreham ed., 2d ed. 2008)). 84 “[N]onmetropolitan county governments and small municipalities generally struggle to provide all sorts of services and functions because of the inability to achieve economies of scale, and because they typically depend on local sales or property taxes, which are less robust than in urban locales.” Id. at 501 (citing Lisa R. Pruitt & Beth A. Colgan, Justice Desserts: Spatial Inequality and Local Funding of Indigent Defense, 52 ARIZ. L. REV. 219, 242-46). 85 See, e.g., Pruitt & Colgan, supra note 84; Pruitt & Showman, supra note 83; Hillary A. Wandler, Spreading Justice to Rural Montana: Rurality’s Impacts on Supply and Demand for Legal Services in Montana, 76 MONT. L. REV. 225 (2015); Lisa R. Pruitt, J. Cliff McKinney, II, & Bart Calhoun, Justice in the Hinterlands: Arkansas as a Case Study of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It, 37 U. ARK. LITTLE ROCK L. REV. 573 (2015). 82 8-Aug-16] PROFIT-DRIVEN PROSECUTION 21 this scholarship, understandably, has focused on issues such as access to attorneys (as well as access to justice, generally) to people living in smaller jurisdictions, as well as examining access to more specific services, such as abortion. In the context of criminal justice, this focus squarely and understandably turns to public defense funding and availability; arguably the Sixth Amendment right to counsel is the most important of rights afforded to a criminal defendant as it would be an especial challenge to assert any other rights without an attorney’s assistance. Greater scrutiny, however, should fall upon the prosecutorial systems of local governments, particularly smaller counties, cities, and towns. In a recent survey conducted in 2007, “eight-seven percent of local government respondents stated that their primary reason for choosing privatization” of a variety of services was “an attempt to decrease cost.”86 Many of the same factors germane in examining access to justice or public defense in such jurisdictions are also important when considering the prosecutorial side of criminal adjudication. These include lack of personal wealth due to a paucity of development and other economic opportunities, thereby limiting potential tax revenues, especially when “many states underfund municipal and county governments . . .”87 86 Epstein, supra note 21, at 2236 (quoting Sam Dolnick, At Penal Unit, A Volatile Mix Fuels a Murder, N.Y. Times, June 18, 2012, at A1). 87 “In short, nonmetropolitan local governments often have smaller budgets with which to serve needier populations.” Pruitt & Colgan, supra note 83, at 228 – 229. Nonmetro communities have also, generally, suffered from higher rates of poverty than metro communities. The federal Office of Management and Budget (OMB) has defined metropolitan (metro) communities as “broad labor-market areas that include: 1. Central counties with one or more urbanized areas; urbanized areas are densely-settled urban entities with 50,000 or more people. 2. Outlying counties that are economically tied to the core counties as measured by labor-force community. Outlying counties are included if 25 percent of workers living in the county commute to the central counties, or if 25 percent of the employment in the county consists of workers coming out of the central counties – the so-called “reverse” commuting pattern.” U.S. Dep’t of Agric. Econ. Research Serv., Rural Classifications: What is Rural?, USDA, http://www.ers.usda.gov/topics/rural-economy-population/rural-classifications/what-isrural.aspx (last visited July 14, 2016). There has been a higher incidence of nonmetro poverty versus metro poverty since official poverty rates were kelp in the 1960. In nonmetro communities compared to metro areas, this rate was 4.5 percent higher in the 1980s, 2.6 percent higher in the 1990s, and 2.7 percent higher from 2000 to 2009. In 2010, this gap reached its second narrowest since such data was recorded at a 1.8 percent difference, with the uneven recovery following the recession of 2007 – 2009 being accepted as the cause of this narrowing. “For purposes of producing subnational and subpopulation poverty estimates” use of the American Community Survey, with its dramatically larger sample size than required by the CPS, is encouraged by the Census Bureau. Poverty rates for the most recently available year (2014) were 18.1 percent nonmetro and 15.1 percent metro, perhaps reflecting the same sort of trends that were observed before the Great Recession. U.S. Dep’t of Agric. Econ. 22 PROFIT-DRIVEN PROSECUTION [8-Aug-16 An additional challenge facing local governments and prompting greater outsourcing of their services88 generally is the trend toward devolution of government obligations and responsibilities.89 Devolution of responsibilities from state to local government has, especially in recent decades, been championed as a prospective measure to increase efficiency and allow for public policy decisions more customizable to such local governments and the populaces that they serve in a variety of industries and contexts.90 Devolution, however, has not always been the panacea that it has been made out to be. Foisting responsibilities upon local governments has raised concerns that not only would a lack of funds present challenges, but that the “technical, and civic capacity of many communities can pose a serious problem for meeting local needs,”91 including the need for prosecutors who seek justice. B. Defining “Outsourcing” and “Privatization” There are, of course different manners in which local governments and small political subdivisions, such as counties, cities, and towns, may provide essential services to their citizens and residents in manners that may not be entirely surprising to those being served. These would include any number of governmental functions, such as utility services, park maintenance, and waste management. Though the prosecutorial norm of a full-time public servant has taken a strong hold in the public consciousness Research Serv., Rural Poverty and Well-Being: Poverty Overview, USDA, http://www.ers.usda.gov/topics/rural-economy-population/rural-poverty-wellbeing/poverty-overview.aspx (last visited July 14, 2016). These data were based on the Current Population Survey (CPS). 88 “Over a quarter of local government services are now provided to some degree by private entities.” Epstein, supra note 21, at 2213. 89 Patricia M. Wald, Looking Forward to the Next Millennium: Social Preview to Legal Change, 70 TEMP. L. REV. 1085, 1098 (1997). 90 These issues are wide ranging, from greater local control of transportation, school choice, and, especially in the western United States, greater control of lands that are currently federally controlled. Greater federal control over functions such as social welfare was asserted with the Great Depression and advanced throughout the 1960s. A greater move toward devolution and local control, however, began under the Nixon administration, partly in response to growing concern over a large, centralized federal government, a cultural preference for greater local control, and increased difficulties local, state, and national governments experienced while trying to cooperate together to tackle the issues of the day. See Jeffrey S. Sharp & Domenico M. Parisi, Devolution: Who is Responsible for Rural America?, in CHALLENGES FOR RURAL AMERICA IN THE TWENTY-FIRST CENTURY 353, 354 - 356 (David L. Brown & Louis E. Swanson eds., 2003). 91 Id. at 353. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 23 and accounts for the majority of prosecutors in larger jurisdictions92 as discussed above in Part I.B., many smaller jurisdictions for reasons that will be discussed below prefer to privatize, to one extent or another, their prosecution functions.93 Such arrangements may take myriad forms, of course, but can be roughly categorized as consisting of 1) contracting out for prosecution services, 2) hiring on part-time prosecutors, or 3) utilizing private prosecutors who are funded exclusively by victims.94 This piece focuses exclusively on those cities, counties, and other political subdivisions below the state level that rely on “contracting out” for prosecutorial services by way of a competitive bidding process. This specific form of outsourcing, however, does not consist of “complete privatization”95 so much as “partial privatization,” under which the government retains the responsibility to prosecute crime but “contracts with a private actor to perform it.”96 While maintaining an increased level of (hyper)local control could make utilizing a contracting-out model more appealing to certain communities than relying on a corresponding state agency, for the vast majority of jurisdictions contracting out, the major concerns are budgetary. As explained by Professor Fairfax: Jurisdictions with relatively small populations may not have the tax base to support a public prosecutor. In addition, the crime rate in a sparsely populated community may not justify the expenditure for a traditional full-time public prosecutor. Furthermore, privatizing criminal prosecution in these jurisdictions can increase criminal prosecution capacity, which, in turn, might enhance 92 Fairfax, supra note 14, at 416 (quoting Patrick Halligan, A Political Economy of Prosecutorial Discretion, 5 AM. J. CRIM. L. 2, 3-4 (1977))(“Prosecutors are generally perceived as “[f]ull time government servants who are bureaucratically organized and paid according to a fixed salary schedule from appropriated funds [to] prosecute crimes.”) 93 Fairfax, supra note 24, at 267. (“Government engages in a substantial amount of privatization. Privatization is a word with many different meanings, but it typically is used to characterize the phenomenon in which government delegates to the private sector functions formerly performed by the state and deemed to be public.”) 94 This Article does not venture to examine closely victim-funded prosecution given its relative rarity. While more common in the eighteenth and nineteenth centuries, the proliferation of “public order” types of crimes in the nineteenth century led to decreased numbers of victim-funded prosecutors and to the growth of more professionalized prosecution services hired by governments. STEPHANOS BIBAS, THE MACHINERY OF CRIMINAL JUSTICE 16 (2012). 95 BRUCE L. BENSON, TO SERVE AND PROTECT: PRIVATIZATION AND COMMUNITY IN CRIMINAL JUSTICE 15 (NYU 1998)(explaining that “complete privatization” would consist of exclusive private sector control over resource allocation.) 96 Fairfax, supra note 24, at 268. 24 PROFIT-DRIVEN PROSECUTION [8-Aug-16 efficiency, public safety, and fairness by speeding criminal case processing, reducing crime, saving court administration costs, and diminishing the human and financial costs of pretrial detention.97 Jurisdictions using a contracting out model are usually limited in their options, as noted by Professor Fairfax. The extreme budgetary limits and shortfalls seen in smaller and/or rural jurisdictions, however, have also begun to manifest themselves in larger jurisdictions, as well. To effectively engage in taking on the greater responsibilities and decentralization essential to greater local control and devolution, local governments require sufficient funding and administrative capacities. Democratic governance and free markets are indelibly linked in American consciousness and culture; “private providers are assumed to be more efficient and innovative than government because they operate in competitive markets.”98 Such privatization, however, can lead to greater disparities between wealthier local governments versus economically depressed ones, and smaller local governments versus larger ones; approaching privatization on unequal footing will often lead to unequal results.99 While there has, justifiably, been much scholarship and media coverage focusing on public defense budgets and funding, prosecutors’ offices have likewise had to find ways to cut costs and manage in a more restrictive financial landscape.100 With the challenge of poor economic conditions for local governments spreading to larger cities, the outsourcing of the criminal prosecution function may, unfortunately, continue to spread in a deleterious way and be employed in shortsighted attempts to boost economic efficiencies while ignoring the long-term risks and damage. 97 Id. at 282. Mildred E. Warner, Competition, Cooperation, and Local Governance, in CHALLENGES FOR RURAL AMERICA IN THE TWENTY-FIRST CENTURY 252, 253 (David L. Brown & Louis E. Swanson, eds. 2003)(citing Emanuel S. Savas, PRIVATIZATION AND PUBLIC-PRIVATE PARTNERSHIPS (2000). 99 Id. at 252. 100 See, e.g., Lawrence Specker, Mobile County DA cuts staff, blames funding crunch, AL.COM (Apr. 14, 2016), http://www.al.com/news/mobile/index.ssf/2016/04/mobile_county_da_cuts_staff_bl.html; Greg Land, Fulton County District Attorney and Public Defender Say Budget Cuts Force Furloughs, DAILY REPT. (Mar. 16, 2016), http://www.dailyreportonline.com/id=1202752402986/Fulton-County-District-Attorneyand-Public-Defender-Say-Budget-Cuts-Force-Furloughs; Kimberly Jackson, State budget cuts impact public safety, KTUL.COM (Jan. 20, 2016), http://ktul.com/news/local/statebudget-cuts-impact-public-safety; Madelyn Beck, Ketchikan DA’s office feeling budget cuts, KRBD FM (Aug. 25, 2015), http://www.krbd.org/2015/08/25/ketchikan-das-officefeeling-budget-cuts/. 98 8-Aug-16] C. PROFIT-DRIVEN PROSECUTION 25 The Competitive Bidding/RFP Process While it is next to impossible to discuss every procurement process for every local government throughout the United States within the expanse of one law review article,101 there are steps and requirements that, generally, every jurisdiction strongly encourages if not mandates when hiring for services. Competitive bidding is intended to make hiring processes transparent and fair for applicants and to keep costs to local government low while still attracting the most qualified candidates. However, both state and local governments will “often require proof of cost savings prior to permitting” services or goods to be procured through the RFP/bidding process, as well as through other privatization methods.102 Local governments commonly enjoy much discretion and flexibility in determining their own procurement processes;103 such processes are usually more onerous for more important positions that need filling or tasks that need to be accomplished. The formality of the procurement process employed may also depend on the approximated value of the contract, with the most rigorous process being competitive bidding. To initiate the competitive bidding process a local government will draft a document known widely as a Request for Proposal. Commonly, public notice statutes require the publication of a legal notice, usually in a major (for the respective jurisdiction and readership) daily newspaper announcing the solicitation of RFPs. The RFP is much more than the usual job vacancy announcement or help wanted sign; it usually consists of a public invitation to submit a proposal to provide a service that an agency has identified is needed. The issuer of the RFP is, theoretically, then able to best judge each proponent’s experience, qualifications, and approach in evaluating who would best be best equipped to provided the needed service with the greatest value. RFPs will often include or ask for the following: 1) a statement of what services are needed, 2) a schedule for the project or the term of years for which the service is being solicited, 3) qualifications 101 This task would require a great deal of data collection and synthesis, along with publishing that data into what one must speculate would be a rather unwieldy tome. 102 Applicants may even be required to demonstrate that they can provide the goods or service more cheaply than the local government itself could. Epstein, supra note 21, at 2237. 103 There are occasions, however, in which a specific project or position is underwritten partly or wholly by separate grant funding. Oftentimes such grants may require their own prescribed procurement requirements that will necessarily limit how a local government makes its decision. See, e.g., U.S. Dep’t of Justice, Violence Against Women Grant Programs, at https://www.justice.gov/ovw/grantees#s1 (last visited May 1, 2016). 26 PROFIT-DRIVEN PROSECUTION [8-Aug-16 needed and evaluation criteria, and 4) a request for a budget, including salary, supplies, assistants, and any other costs that may be envisioned while serving as prosecutor. While this often-convoluted process is meant to allow local governments to best determine each applicant’s experience, qualifications, and other merits, contracts are generally awarded to the lowest bidder, with other factors often playing at best, a secondary role in the decision. D. Samples of Prosecutorial Outsourcing RFPs Throughout the United States While this Article has thus far attempted to describe the competitive bidding process and the RFP, one needs to, at the least, familiarize oneself with examples of RFP language to understand the conflicts such solicitations by local governments pose along with the often perverse economic incentives to depart from the prosecutorial norm of “doing justice.” 1. Green River, Wyoming The City of Green River recently released an RFP for a city prosecutor; proposals were due on February 16, 2015 for a term to run through January 31, 2019, subject to early termination if needed.104 The duties assigned to the city prosecutor consisted, in broad terms, of enforcing city ordinances in the Green River Municipal Court.105 The qualifications sought were exceptionally minimal, consisting of 1) a Juris Doctorate, 2) membership in the Wyoming State Bar, and 3) a license to practice in state and federal court; the third factor effectively duplicated the second.106 Applicants were required to “detail the compensation requested to perform” the duties described, with potential compensation packages to be arranged in one of three ways: 1) a monthly retainer as well as an hourly rate for services that went beyond the usual monthly scope, 2) an annual salary including city health insurance, and 3) an annual salary excluding health benefits.107 The city explained that review “of all proposals will include, but is not limited to, overall cost to the City[…]”108 While language regarding the importance of overall cost certainly encourages attorneys to 104 City of Green River, City Prosecutor Request for Proposal 1 (2015)(on file with author). 105 Id. 106 Id. at 2. 107 Id. at 3. 108 Id. at 3. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 27 underbid each other as much as possible, it also impliedly encourages a profit-driven approach; an applicant may be successful in having their contracts continuously renewed if they generated enough in the way of fines and fees to counteract the cost of their contract. 2. Lakeville, Minnesota Lakeville released an RFP seeking to fill two vacancies – one for a city attorney and another for a prosecutor. The RFP submittal deadline was April 8, 2016, with final approval to have taken place on June 6, 2016.109 The city prosecutor’s duties consist, mainly, of prosecuting misdemeanors in Lakeville’s municipal court.110 In addition to describing prior experience and explaining how the applicant planned to make themselves “readily accessible to City personnel, especially police officers,” applicants were required to provide “a detailed description and explanation of all fees and/or charges that may arise for provided prosecution and related legal services.”111 This explanation was not to be limited only to the attorney’s services, but for proposed staff, as well.112 When evaluating proposals the city made it clear that it intended to “award a contract to the proposer(s) evaluated to be best qualified to perform the work for the City, cost and other factors considered.”113 While the city anticipated hiring a prosecutor for a minimum of three years, a new contract was required each year with expected annual renewals and either party could terminate the relationship with 90 days notice.114 The constant threat of removal outlines in the RFP places a great deal of pressure on any applicants to do exactly that the city would want. 3. River Falls, Wisconsin River Falls released its RFP for a municipal prosecutor on March 6, 2015. The duties of the municipal prosecutor were limited to prosecuting city-issued citations in the River Falls municipal court.115 The municipal prosecutor was also responsible for handling appeals from the municipal to 109 City of Lakeville, Legal Services Request for Proposals 2 (2016)(on file with author). 110 Id. at 6. 111 Id. at 7. 112 Id. 113 Id. 114 Id. at 8. 115 City of River Falls, Request for Proposal, Municipal Prosecutor 5 (2015)(on file with author). 28 PROFIT-DRIVEN PROSECUTION [8-Aug-16 county level circuit court.116 While the required personal qualifications of applicants were relatively minimal (i.e., references, descriptions of training and experience), the RFP requested a “methodology for how the individual or firm will bill the City for its services,” with the city entertaining only “hourly or flat fee approach[es].”117 Applicants were to include the costs of all support staff and other overhead expenses.118 Oddly enough, proposals were to first be evaluated by the municipal judge in whose court the new prosecutor would appear, as well as city staff.119 The judge’s 120 recommendation was to then be forwarded to the city counsel. It was the city’s priority to select the attorney or law firm that would provide “the best value,” specifically considering physical availability, prior experience, and “the proposed price.”121 The city wished to enter into a two-year contract, with either party able to cancel with 90 days notice.122 Once again, a successful applicant would be placed in a precarious situation with the city, with removal from the position by way of cancellation of the contract relatively easy. 4. Dodge City, Kansas Dodge City issued an RFP with proposals due on October 17, 2014 for a position that began on January 2015.123 The municipal prosecutor’s duties were, again, limited to handling misdemeanors and traffic offenses before the municipal court.124 This particular RFP was remarkably scanty in detail, with no provisions regarding evaluation of submitted proposals, length of potential contracts, nor termination or cancellation of the contract. Apart from asking for a “brief firm or individual history” as well as a brief description of “experience . . . relative to the proposal,” the RFP was entirely concerned with fee structures. The RFP asks that proposals “must clearly set forth the fees or fee structure (e.g., hourly rate, monthly retainer, per-case fee) to be charged for the . . . scope of services.”125 The city stated that it preferred paying on a monthly retainer basis.126 Dodge City’s 116 Id. Id. at 6. 118 Id. 119 Id. at 9. 120 Id. 121 Id. at 9 -10. 122 Id. at 3. 123 Dodge City, Request for Proposal for Municipal Prosecutor 1 (2014)(on file with author). 124 Id. 125 Id. at 2. 126 Id. 117 8-Aug-16] PROFIT-DRIVEN PROSECUTION 29 requirements were lax to the point of stating that the city would continue to read and consider late proposals submitted after their due date.127 5. Ephraim City, Utah Ephraim City recently solicited proposals by way of RFP; proposals were due on February 27, 2015 with the position to start on July 1, 2015.128 Ephraim is an especially small city with a population of 6,431 and, as such, has combined the duties of civil city attorney with city prosecutor into one position.129 The proposed contract was specified to run for two years, with the potential to extend at its conclusion for an additional two years.130 Along with providing city attorney services,131 the applicant hired would be tasked with prosecuting misdemeanors arising in Ephraim.132 While more rigorous screening is prescribed by this RFP, including a minimum requirement of five years of legal experience and knowledge and experience in municipal law, this RFP also requires the most detailed fee proposal of all the RFPs examined in this piece thus far. Applicants were required to provide an hourly or monthly retainer rate (unsurprisingly Ephraim City preferred a retainer rate “in an effort to manage costs effectively”), as well as account for all extra potential costs, including providing estimates for “minimum increments of time billed for each service including phone calls, correspondence and personal conferences” as well as reimbursable expenses “including travel (per mile), telephone, printing, photocopying, etc.,”133 providing a chilling effect for those who might have asked for greater resources when the need arose to do prosecutorial job well. Perhaps the most troubling aspect of this RFP are its provisions for removal: any contract a successful applicant and the city would agree upon was required to specify that the attorney serves as “an independent contractor serving at the will of the City Council,” and that it was the city’s “right to terminate the agreement, at its sole discretion, upon the provision of notice.”134 An attorney could be, practically speaking, fired at any time, for any reason, 127 Id. at 3. Ephraim City, Requests for Proposals for Legal Services – Civil and Criminal 1 (2015)(on file with author). 129 Id. at 3. 130 Id. at 4. 131 These include tasks such as attending city council meetings, drafting ordinances, and reviewing all contracts entered into by the city (including, presumably, those for outsourced public defense work). 132 Id. 133 Id. at 6. 134 Id. at 7. 128 30 PROFIT-DRIVEN PROSECUTION [8-Aug-16 with no such reciprocal right offered to cancel the contract. 6. Chino Valley, Arizona Chino Valley released an RFP in search of town prosecutor services on May 12, 2016, with proposals due June 8, 2016.135 Chino Valley is located in Yavapai County, Arizona and as of the 2010 census, has an estimated 2015 population of 10,817.136 Chino Valley was searching for either law firms or attorneys to provide criminal prosecution services for the town, including pre-trial adjudication, motion practice, and trials. Chino Valley estimated in the RFP that the provision of these services would average to 10 hours per week.137 The two required qualifications of an applicant were minimal – admission and licensure with the State Bar of Arizona and a minimum of two years of experience. Proposal requirements were, similarly, minimal, and were comprised of the qualifications and experience of the proposer, hours of availability, and a proposed annual fee.”138 No terms with regard to removal or cancellation of a contract were provided by Chino Valley’s RFP.139 7. Hortonville, Wisconsin The village of Hortonville is located on the shores of Black Otter Lake in Outagamie County, Wisconsin. Hortonville’s population estimate for 2015 was 2,712.140 The submitted due date for any proposals was due on September 30, 2014.141 The winner of the bid was expected to “represent the Village in prosecuting violations of state law” and the applicable municipal code.142 The village was seeking to contract with a law firm or attorney for two years; no provisions for removal were provided.143 Hortonville’s police department issued, an average, 70 to 75 135 Town of Chino Valley, Arizona, Request for Proposals for Town Prosecutor Services 1 (2016)(on file with author). 136 U.S. Census Bureau, American FactFinder: Community Facts, http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited July 14, 2016). 137 Chino Valley RFP, supra note 111, at 1. 138 Id. 139 Id. 140 U.S. Census Bureau, American Fact Finder: Community Facts, http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml# (last visited July 14, 2016). 141 Village of Hortonville, Request for Proposal 1 (2014)(on file with author). 142 Id. 143 Id. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 31 citations a month.144 Hortonville’s RFP is an aberration amongst the RFPs examined in this Article. An entire section of the RFP was dedicated to a section entitled “Prosecution Philosophy,” which expounded upon the duties of the successful candidate – “[t]he Prosecutor’s decisions and dispositions of cases need to be consistent with community concerns about maintaining and improving a positive image of the Village, in addition to promoting peace and order.”145 At no point, however, is serving the interests of “justice” in any of its incarnations mentioned—the exclusive focus of the “philosophy” outlined in the RFP is a strong, nearly singular emphasis on being cooperative with the police, even to the point of being required to be available on all nights and weekends to the them.146 Hortonville’s RFP was also unusual in that it required all submitted bids to propose a hourly rate by which the prosecutor would be compensated.147 There were also other requirements for the proposal that were not evident in the other prosecutorial RFPs covered in this paper such as providing an explanation of service delivery and philosophical approach to prosecution, as well as a list of references.148 Also odd was the narrowing of candidates through a screening by not only the current village attorney, but also the village administrator, village judge, and village chief of police.149 Nothing in the RFP discusses the possibility of removal prior to the expiration of the proposed two-year contract.150 Hortonville’s RFP is troubling, even though it may seem more comprehensive in its requirements than any of the RFPs reviewed in this Article. The strong emphasis on communication and collaboration with the police, and the narrowing of proposals by the chief of police as well as the municipal judge presents a host of problems, including a lack of autonomy from the police department rather than any focus upon doing “justice,” as well as a collapse in the separation of powers by having the municipal judge before whom the new prosecutor would appear participating in any aspect 144 Id. Id. at 2 – 3. 146 “The Prosecutor should have regular and ongoing contact with police officers to communicate charging and filing standards and update officers of the most recent case law and important changes in law. The Prosecutor must be reasonably available for night and weekend (24/7) contact by Hortonville Police Department personnel.” Id. at 3. The irony seems lost on the drafter of the RFP that many, if not perhaps most attorneys, would consider being available “24/7,” including weekends for a part-time job would be considered per se an unreasonable request. 147 Id at 3. 148 Id. at 4. 149 Id. at 5. 150 Id. 145 32 PROFIT-DRIVEN PROSECUTION [8-Aug-16 of the hiring decision making. 8. Elkins, West Virginia The city of Elkins is situated in and the county seat of Randolph County, West Virginia, with an estimated 2015 population of 7,226.151 Elkins issued an RFP searching for a new prosecutor on February 19, 2014.152 This RFP amounts to only a one page document, describing the scope of work including “Municipal Court hearings, jury trials, and other actions against misdemeanor criminal offenders. Desired services include reviewing cases, preparing warrants, interviewing witnesses, leading prosecutions, scheduling subpoenas, and collaborating with police officers.”153 While the RFP specifies that contracts would be renewable annually, it provides no details regarding review nor removal.154 Proposals were required to address qualifications, expertise, staffing, prior experience, professional references, and desired pay.155 The city very explicitly stated what its primary consideration was in reviewing proposals, with its goal being to “select the firm whose proposal is the most advantageous to the City of Elkins.” Again, rather than focusing on a prosecutor’s ability to seek justice, however that may be defined, or a prosecutor’s philosophies regarding how the prosecution function should be provided, the city of Elkins prioritized its own interests mainly grounded in notions of efficiency and cost-reduction. 9. Township of Bedminster, New Jersey Bedminster is located in Somerset County in central New Jersey. Its estimated 2015 population is 8,241.156 Unlike some of the other communities described thus far in this section, Bedminster is rather well-todo, with median household income amounting to $93,103 and median family income at $124,057.157 The proposal submission deadline was 151 U.S. Census Bureau, American Fact Finder – Community Facts, http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited June 28, 2016). 152 City of Elkins, West Virginia, Requests for Proposals for Legal Services (Prosecutor) 1 (2014)(on file with author). 153 Id. 154 Id. 155 Id. 156 U.S. Census Bureau, American Fact Finder – Results, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk (last accessed July 16, 2016). 157 These figures are based on the American Community Survey, discussed in supra 8-Aug-16] PROFIT-DRIVEN PROSECUTION 33 November 4, 2015 for a contract term running from January 1, 2016 to December 31, 2016.158 The entirety of the RFP packet itself was rather voluminous at 26 pages; however, the great bulk of these pages are devoted to forms such as stockholder disclosure certifications, political contribution disclosure forms, business entity disclosure certifications, and mandatory equal employment opportunity language as required under New Jersey law, among other things. Factors for evaluating proposals began with clarifying the primary bases for awarding a contract, “the most advantageous, price, and other factors . . .”159 Some of these factors seem as though they should be givens for performing that job even at minimal levels, such as physical availability of the applicant for meetings or knowledge of the “administrative structure of the Township of Bedminster.” The factors, apart from cost the content of a proposed compensation schedule, amount to being able to be physically present whenever a town prosecutor should be. Bedminster’s RFP provided very explicit terms regarding termination of the contract, including default (non-performance with termination upon 30 days written notice from the township, but only after giving an applicant an opportunity to remedy the problem), unconditional termination for convenience (for any reason with 60 days notice), and termination by the township for other causes such as persistently disregarding laws and ordinances (with 15 days of written notice and a 7 calendar day period to cure deficiencies).160 This RFP, like several of the others examined thus far, leave applicant attorneys in potential vulnerable positions of they do not satisfy the head of their local government. 10. Kyle, Texas The city of Kyle is located in Hays County and only 20 miles south of Austin and 50 miles northeast of San Antonio. Located on the 35 Freeway, Kyle cannot be characterized in any respect as being geographically isolated or rural so much as a suburb of Austin. Kyle, however, is presented here as an example of the RFP process for choosing a criminal prosecutor spreading outside of the rural localities in which the practice is usually found. note 67. U.S. Census Bureau, American Fact Finder – Results, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk (last accessed July 16, 2016). 158 Township of Bedminster, Request for Proposal of Professional Services 1 (2015)(on file with author). 159 Id. at 12. 160 Id. at 5. 34 PROFIT-DRIVEN PROSECUTION [8-Aug-16 Kyle was founded in 1881 at its respective site along the International-Great Northern Railroad line. Since 2000, Kyle’s population has grown dramatically, from 5,314 in 2000 to 28,016 in 2010 and an estimated 35,733 in 2015, reflecting the rapid growth happening throughout many Texas cities.161 Such massive growth in formerly small, rural towns and cities often left such local governments in difficult positions in which they would not possess the authority to enact policy to handle such changes. Texas cities can generally be sorted into two categories – general rule and home law. General law cities are very restricted in the powers they are able to exert, being limited only to those granted under state law in either an express or implied fashion. If a city wishes to take on a task or duty that the state has not bestowed upon a general law city, such a city would be prohibited from doing so. In contrast, home rule cities in Texas, limited only to those cities with a population of over 5,000, enjoy dramatically greater powers and authority by adopting and enacting their own home rule charters.162 Kyle, understandably, adopted a home rule charter in 2000, granting them greater authority to control most aspects of their local government, including appointment and removal of “the city attorney, the municipal judge, and the associate municipal judges[.]”163 The charter itself does set out some standards with regard to qualifications to be city attorney (licensed in Texas with five years of experience), but provides no other evaluative factors for the appointment of a prosecutor nor for an RFP procurement process.164 Kyle recently issued an RFP seeking proposals by May 23, 2016 for a prosecutor in its municipal court, with a contract start date of July 1, 2016.165 Kyle’s municipal court handled “approximately 6,000 annually[,]” consisting mainly of “moving violations and a small number of cases pertaining to code and juvenile violations.”166 The qualifications for such a prosecutor as listed in the FRP were perfunctory, stating that a candidate should be “qualified and capable” and, oddly, should never have filed for 161 U.S. Census Bureau, American Fact Finder – Results, http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited July 15, 2016). 162 Home rule charters establish a city’s governmental structure (such as choosing a mayor-council or council-city manager style of governance) and delegates differing duties and powers amongst branches of the city’s government. Home rule charters are generally adopted by way of election, as are any changes to such a charter. 163 City of Kyle Home Rule Charter 8 (2006). 164 Id. at 20. 165 City of Kyle, Request for Proposals, RFP NO. 2016-03-PM, Prosecution Services for Municipal Court 2 (2016)(on file with author). 166 Id. at 5 – 6. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 35 nor have been adjudged bankrupt.167 According to the RFP, the evaluating factors in screening through proposals was “1) Completeness of the proposal submitted, 2) Understanding of the scope of work and services provided, 3) Individual attorney’s or law firm’s experience and of its assigned personnel, 4) Availability and accessibility, 5) Compensation.”168 While experience may seem like a significant factor to consider, especially compared with some of the RFPs discussed above, in a geographic setting with proximity to Austin and El Paso, finding attorneys with five or more years of experience does not necessarily narrow the field prohibitively as doing so in an area with only two or three active attorneys. Apart from the experience and compensation factors, completeness of a proposal, understanding of the nature of the job itself, and being physically present for the job are not particularly demanding factors for any attorney proponents for the City using the factors. The terms regarding cancellation of the contract, however, are more illuminating. They state that: The City reserves the right to terminate the contract if the successful Offeror does not perform to the City’s satisfaction. The City of Kyle is a home-rule municipal corporation operated and funded on an October 1 to September 30 basis; accordingly, the City reserves the right to terminate, without liability to the City, any contract (or renewal option) for which funding is not available.169 The focus of cancellation of a contract under the RFP rests on the satisfaction of the town council, rather than voters; termination should also be expected by a prosecutor hired by RFP if they are not able to bring in the funding necessary to keep their jobs, along with keeping the city council satisfied. III. PROSECUTORIAL BIDDING AND OUTSOURCING IS DISTINCTLY PROBLEMATIC Thus far this Article has explored, to varying levels of depth, the incentives (and disincentives) at play when outsourced prosecutors have hired on through a competitive bidding process. Is there, however, a real, substantive difference between a prosecutor hired through an RFP and 167 Id. at 8. Id. at 10. 169 Id. at 7. 168 36 PROFIT-DRIVEN PROSECUTION [8-Aug-16 contracting-out basis versus a traditional election for the position of head prosecutor, or appointment of that same position? How is hiring a prosecutor through a competitive bidding process anymore problematic that employing a similar mode for procurement of any other service? One may argue that a mayor or local government council who is elected is just as publically accountable as would be an elected prosecutor, and that mayors and local government councils appoint individuals to myriad positions everyday. Certainly some questions may arise as to how putting prosecutors’ jobs out to bid is any different than other sorts of governmental procurement at all. The closest analog to the poor incentives created by putting prosecutorial positions up for public bid may be found in the controversial practice of asset forfeiture by police; as much as “[l]ucrative forfeiture opportunities can also warp law enforcement priorities,”170 revenue-generated opportunities may also warp prosecutorial priorities, especially when pressured to operate in a profit-driven matter by mayors or local government councils. There has been some substantial examination of public-private contracting in recent decades171 and comparing prosecution function bidding to bidding that occurs in other industries illustrates helps to illustrate why hiring prosecutors through a competitive bidding process leads to unacceptably profit-driven prosecution.172 Even the small samples of language from RFPs from Part II.D. above should raise red flags of concern; the arrangement of a local government contracting out for prosecution services in such a manner immediately implicates a multitude of dilemmas and creates opportunities for perverse economic incentives that would cause local government prosecutors to act in manners contrary to serving justice. This Section argues, however, that some of the quandaries that have previously been focused upon have been overstated, while others that have been ignored are more deserving of our attention. Concerns that have been overlooked include placing prosecutors in positions in which they have duties to two principals, including the government, which “lacks the proper incentives to 170 David Pimentel, Forfeitures Revisited: Bringing Principle to Practice in Federal Court, 13 NEV. L.J. 1, 31 (2012). 171 “The prevailing sentiment in the academic literature is that private, profitmaximizing firms should not be entrusted with providing government services absent safeguards because profit-maximizing goals conflict with public service values.” Epstein, supra note 21, at 2215. 172 Much of what makes competitive bidding for prosecution services problematic versus competitive bidding for other services is prosecutions function as a “soft” government service. Such soft services “tend to be more difficult to definite and measure and involve discretion.” “Hard” services, on the other hand, “are easy to specify [and] involve little discretion[.]” Id. at 2219. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 37 ensure high-quality service provision,”173 prosecutorial self-dealing, and local governments shirking their responsibilities of providing quality public services, while those concerns regarding conflicts arising from prosecuting former clients and the like have been overstated in previous scholarship. Privatization of public services is a risky business, but the reasons for concern are particularly daunting when examining the contracting out of prosecutorial services to lowest bidders, even when compared to other services that might seem to implicate similar problems such as competitive bidding for private prison construction and operation, as well as bidding for public defense contracts. Asking whether there is much of a difference between either hiring scheme dismisses the fact that “institutions matter,” as well as the effect that differences in institutions, even upon positions that would superficially seem similar, will have upon internalized incentives.174 The privatization of public services, generally, can be problematic: “The goal of private enterprise—to make a profit—is antithetical to the fundamental goals of public programs—to deliver services equitably, honestly, and cost efficiently,”175 particularly when paired with the prosecutor’s usual goal of serving as a minister of justice. A wide variety of issues are implicated through any regime of public-private contracting: it allows local governments to be unresponsive, and can create concerns regarding “inefficiency, conflict of interest, and abuse.”176 The prosecutor’s role, in its power and ubiquity in the criminal justice system, as well as its specific purpose of seeking justice rather than lowered crime rates, higher conviction rates, or higher revenue for public coffers, demands a different analysis that would be applied to other services procured through competitive bidding and RFPs. A. Self-Dealing and Self-Interest Self-dealing has been defined in a public sector context as “[a] situation where one takes an action in an official capacity which involves dealing with oneself in a private capacity and confers a benefit on oneself.”177 Prosecutors, just as defense attorneys or other private sector attorneys, owe a fiduciary duty to their clients, and must act in their best interests. The ABA Prosecution Standards attempt to clarify the question of 173 Id. at 2217. MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 11-12 (2009). 175 Al Bilik, Privatization: Selling America To the Lowest Bidder, 1 LAB. RESEARCH REV. 15, Article 10, 2 (1990). 176 Epstein, supra note 21, at 2215 (internal quotations omitted). 177 KERNAGHAN AND LANGFORD, THE RESPONSIBLE PUBLIC SERVANT 142 (1990). 174 38 PROFIT-DRIVEN PROSECUTION [8-Aug-16 who serves as the prosecutor’s client: prosecutors are to work “solely for the benefit of the client—the people—free of any compromising influences or loyalties.”178 There are several factors that might make prosecutors more likely to act on improper self-interest and self-dealing under an RFP based contracting system rather than the traditional model of installing an elected head prosecutor who may, given the size of the jurisdiction, hire assistant prosecutors on a traditional, salaried basis. Prosecutors who have secured a position with a local government through the RFP process have already had to subject themselves to the competitive bidding process. In such situations, attorneys interested in the position will have already made some rudimentary calculations regarding the optimal compensation to request in an attempt to undercut competition and secure a contract, especially with the knowledge that efficiencies in cost are the overriding factor in determining to whom to award a prosecution contract. Prosecutors hired on contract are also much more vulnerable to termination from their positions than elected prosecutors, or even those assistant prosecutors who are hired by an elected prosecutorial supervisor. The contractually outsourced prosecutor’s job has a natural “expiration date,” coupled with the additional weakness that the local government may cancel the contract, sometimes with the most minimal of notice.179 Elected, incumbent prosecutors, of course, have the luxury of waiting to be voted out of office (unless they have committed a rather egregious gaffe, in which case states have varying methods of removal180), while even assistant prosecutors, usually hired on as at will employees, may often benefit from other protections such as collective bargaining agreements or favorable employee policies and handbooks limiting the process of termination. Financial pressures faced by contracted prosecutors may originate 178 ABA Prosecution Standards, supra note 17, at Standard 3-1.3 cmt. (1993). See Ephraim City, Utah example infra Part II.D.5. 180 Some states have provisions for recall elections for those elected to public office, such as district attorneys. See, e.g. L.A. County Registrar-Recorder/County Clerk, A Guide to Recall (Jul. 2010), https://www.lavote.net/documents/election_guides/GUIDE_TO_RECALL.pdf (last visited Aug. 1, 2016); Or. Elections Div., Recall Manual (Jan. 2016), http://sos.oregon.gov/elections/Documents/RecallManual.pdf. When appropriate, state bar associations may pursue ethics charges against attorneys, including district attorneys, which may result in disbarment. For example, Michael Nifong, the former district attorney of Durham County, North Carolina, was disbarred by the North Carolina State Bar for “fraud, dishonesty, deceit or misrepresentation; of making false statements of material fact before bar investigators, and of lying about withholding exculpatory DNA evidence, among other violations.” Lara Setrakian & Chris Francescani, Former Duke Prosecutor Nifong Disbarred, ABC NEWS (June 16, 2007), http://abcnews.go.com/TheLaw/story?id=3285862&page=1. 179 8-Aug-16] PROFIT-DRIVEN PROSECUTION 39 perverse incentives to, on the one hand, over-perform, and on the other, underperform. Just as any other private service provider, prosecutors hired on contract will be “motivated to maximize profit.”181 The attorney who has advanced an hourly pay arrangement may have a greater tendency, conscious or not, to spend more time “padding” their hours on a prosecution job—in essence making every task take as long as possible. Conversely, attorneys working on flat fee per case or monthly retainer bases may become more lax in fulfilling their duties, doing as little as possible while getting paid as much as possible under the contract. While some praise competitive bidding as a way to control costs by awarding contracts to those who would purportedly provide services more cheaply as government employees are not usually rewarded for cost-saving, this is also a reason why prosecutors hired in such a manner “might be even more motivated than government actors to provide low-quality service.”182 It is important to acknowledge, however, that “non-deal (i.e., actual) public servants also act out of private purposes[.]”183 An elected district attorney, just as prosecutors hired through a public bidding process, is subject to many of the same needs and pressures associated with life outside of the job (“e.g., putting food on the table or paying for their kids’ education”).184 In examining the distinctions between employees and contractors, particularly in the contexts of prison privatization, Professor Alexander Volokh argued that there is, in essence, very little difference between the motivations of private firms and individual employees acting according to their private purposes, while challenging the assumption that firms only “act to maximize profit.”185 He also explained that “it’s surely true that a firm only acts to maximize profit if some individual or individuals within the firm have taken such an action.”186 This is precisely the task that prosecutors hired by way of RFP are expected to undertake from the time they apply for an open prosecutorial position, with RFPs stressing cost effectiveness and, implicitly, revenue generation above all else. B. Multiple Principals Understandably, “prosecution outsourcing raises concerns about 181 Epstein, supra note 21, at 2215 (2013). Id. at 2243. 183 Alexander Volokh, Privatization and the Elusive Employee-Contractor Distinction, 46 U.C. DAVIS L. REV. 133, 179 (2012). 184 Id. at 182. 185 Id. at 183. 186 Id. 182 40 PROFIT-DRIVEN PROSECUTION [8-Aug-16 accountability and transparency.”187 While there are widely acknowledged dangers that arise from relying on publically elected prosecutors,188 such prosecutors, at least, wield a local government’s power against its citizens with the understanding that if such power is abused that their elected position may be in jeopardy while also comporting with the longstanding prosecutorial norms described in Part II.B. The outsourced, hired-oncontract prosecutor, however, is often much more shielded from public view. Rather than having to seek approval from the public or, in the case of an assistant prosecutor, helping one’s elected supervisor secure wide public approval, the contract prosecutor only needs to perform for those who control renewal of the contract—usually a mayor, city council, county council, or city manager. While these supervisory positions at the heads of local government usually are publically elected, the public will almost certainly not pay the same attention to scrutinizing a prosecutor hired on contract as they might to one who has had to campaign and whom they elected themselves.189 Under such circumstances, the contract prosecutor may feel a greater duty to those make hiring decisions and to the local government itself rather than the real client to whom they owe a fiduciary duty and a duty of loyalty—the public. A substantial conflict of interest is an inherent feature of a prosecutor’s function when hired by way of RFP. No matter such a prosecutor’s actual intentions and motivations; such a prosecutor faces competing duties to the public, to the local government, and often to their own firms.190 It is in such situations that a prosecutor may decide to make choices that serve to enrich and benefit a local government rather than the citizens it would purport to serve. A desire to serve the local government and its leaders may create even greater insidious incentives to either over or underperform than merely 187 Fairfax, supra note 24, at 283. In particular, engaging in campaigning and relying on public support can politicize prosecutorial functions in such a manner as to force publically elected prosecutors to approach their jobs ever mindful of future polls. 189 The author does not mean to suggest that prosecutorial campaigns or elections are necessarily high- or fair-minded, nor does she intend to somehow fetishize the prosecutorial electoral process as being completely devoid of its own troubling problems. See Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959, 961 (2009)(“District attorneys’ electoral contests are rarely measured assessments of a prosecutor’s overall performance. At best, campaign issues boil down to boasts about conviction rates, a few high-profile cases, and maybe a scandal.”)(internal citation omitted). 190 “Public and private employees both have a duty to their employer. But in the public sector, that duty runs all the way up to The People, whereas in the private sector, the employer itself (the corporation) has conflicting duties, one to its contractual partner (the government and The People) and a fiduciary duty to its shareholders (who want their profits maximized).” Volokh, supra note 176, at 185. 188 8-Aug-16] PROFIT-DRIVEN PROSECUTION 41 through simple self-dealing.191 A classic example of over-performance is treating municipal and other misdemeanor and infraction courts as revenue generators for their respective municipal governments.192 Prosecutors may aggressively pursue fines that many would consider unfair or excessive while threatening jail for non-payment.193 Along this vein, new categories of fines and fees appear to have been created for the sole purpose of raising revenue; some of these additional fines and fees may appear particularly outlandish, including those for probation supervision, jail “pay-for-stay” plans,194 and “public defender recoupment” fees.195 On the other hand is a complementary scenario that receives little, if any, attention. Prosecutors may feel pressured or even encouraged to pursue options requiring that a defendant pay a fine rather than argue for an outcome that would have been beneficial and more rooted in concerns for public safety and justice, such as drug and alcohol treatment or jail, but that would cost the jurisdiction money it does not have or is unwilling to spend.196 191 It has been noted both in news media and in legal scholarship, especially since the Ferguson case, that criminal justice systems, especially on a local level, have been run very similarly to businesses. See, e.g., Editorial Board, Policing and Profit, 128 HARV. L. REV. 1723 (2015)(citations omitted): “Using law enforcement to raise revenue is part of a larger trend of thinking about government through the logic of business. In the criminal context, critiques of privatization has [sic] primarily focused on how these developments transfer state authority to private actors. [No matter if a private actor is involved in a criminal case one can often see] a financial motive structured right into the immense discretion (on the pat of police, prosecutors, or judicial officers) that runs law enforcement. These actors then use their considerable discretion to shape not only the substance of criminal law but also its funding structure, in the way a legislature normally would. Budget authorities have even started to cut police funding in response to these departments’ raising their own revenue, in turn spurring police to raise even more money in these ways.” 192 See, e.g, Aaron Falk & Mike Gorrell, Salt Lake County, three others on track to close justice courts, SALT LAKE TRIBUNE (July 16, 2012), http://archive.sltrib.com/story.php?ref=/sltrib/news/54498871-78/county-court-courtsjustice.html.csp (discussing several Utah cities deciding to shutter their justice courts given the fall in filings and revenue steam); City of Bryan, Texas, Municipal Court, https://www.bryantx.gov/municipal-court/ (last visited May 20, 2016)(“The Court processes an average of about 20,000 cases a year. The Court also issues an average of about 5,500 warrants a year. The Court collects more than $2 million in revenues for the City and State of Texas.”). 193 See generally, Alexes Harris, Heather Evans & Katherine Beckett, Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 AM. J. SOC. 1753 (2010). 194 In which an inmate is charged for every day imprisoned in jail, then expected to pay some time after release. Approximately seventy percent of states have authorized counties or other local governments to bill inmates in an attempt to recover costs of incarceration. Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 57 (2013). 195 Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day Debtor’s Prisons, 75 MD. L. REV. 486 (2016). 196 Working briefly as a contract prosecutor for a small local government in Utah, the 42 PROFIT-DRIVEN PROSECUTION [8-Aug-16 Certainly an extreme example of rampant fine generating could be found during Stephanie Karr’s tenure as Ferguson City Prosecutor, which began in April of 2011, as well as that of the acting prosecutor who preceded her. Since 2014, the City of Ferguson has become infamous; this has been in no small part due to “[c]ity, police, and court officials” long working together to “maximize every stage of the enforcement process.”197 Ms. Karr’s contract, unusual for such an arrangement, provided for compensation of $150.00 per billable hour, and Ms. Karr, along with deputy prosecutors from her law firm, made sure to keep themselves busy.198 Ms. Karr has also recommended disproportionately high fines for what could only be considered very minor offenses—$77 to $102 for an overgrown lawn, $102 for parking fines—while providing more proper-sounding reasosn for doing so (“large volume of non-compliance”) in an attempt to hide the fact that such recommendations were made in an effort to bring the city greater revenue.199 The acting Ferguson prosecutor preceding Ms. Karr also advised law enforcement to allege every violation of law possible in every case in an effort to boost revenue generation;200 he would also brag about his effectiveness at acting as a collection agent for the city rather than as a minster of justice, stating in a 2011 report to the Ferguson City Council that he “denied defendants’ needless requests for continuance from the payment docket in an effort to aid in the court’s efficient collection of its fines.”201 Even after federal investigations that took place after Michael Brown’s death concluded that Ferguson’s criminal justice system both suffered from systemic racial bias and functioned as a revenue-generating scheme, Ms. Karr continued on in her position, even prosecuting and exacting fines from those protesting the shooting of Michael Brown in 2014 author encountered just such a case when prosecuting a defendant who had committed a DUI; the defendant pled guilty. The author recommended that the Defendant be sentenced to a weekend in jail to “dry out.” The municipal court judge encouraged the author to ask for a large fine, instead. After the author refused to do so, the judge still sentenced the defendant to a very large fine and no jail-time. 197 Ferguson Report, supra note 5, at 10. 198 “From 2014 to 2015, the amount prosecutors billed Ferguson rose from $30,260 to $61,605. For work during the first three months of 2016, prosecutors’ charged Ferguson just over $30,000. If that pace continues, prosecutors could cost the city more than $120,000 this year.” Stephen Deere, Legal bills mount as Ferguson stands by ‘failure-tocomply’ cases, S T. LOUIS POST-DISPATCH (May 2, 2016), http://www.stltoday.com/news/local/crime-and-courts/legal-bills-mount-as-fergusonstands-by-failure-to-comply/article_2070be9f-99f1-5218-9e3a-cdfaf4dfed5e.html. 199 Ferguson Report, supra note 5, at 10. 200 This included making sure that summonses for all “correct companion charges [were] being issued, such as speeding, failure to maintain a single lane, no insurance, and no seat belt, etc.” Id. at 11 (internal quotation marks omitted). 201 Id. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 43 well after the resignations of the Ferguson Municipal Judge, Chief of Police, and City Manager.202 C. Blame Shifting and Lack of Accountability The hiring of prosecutors through a public bidding process also allows local governments an undue ability to shield themselves from accountability for a prosecutor’s actions and disincentivizes them from seeking to provide good service. If a hypothetical municipal prosecutor was revealed to be unsuited to the job by way of temperament (perhaps the prosecutor performs poorly in court) or ethical and philosophical approach to the job (the prosecutor engages in an abundance of Brady violations or some other problematic behavior), local governments who have hired such a prosecutor have a much greater ability to point to their hiring process as the source of the mistake rather than having to take on the same accountability when more directly making such a choice, such as by appointing an attorney to the position while offering a figure up front during salary negotiations.203 This disconnection of mayors and local government councils from the prosecutors they happen to procure through bidding also introduces an unacceptable risk of lack of oversight in prosecutorial standards. This dodging of responsibility can be observed in different industries in which outsourcing and competitive bidding predominate. A particularly spectacular example of a failure in outsourcing and corporate responsibility is the recent Boeing 787 production debacle. The 787 Dreamliner was due for completion, maiden flight, and delivery in 2008. The first delivery, to All Nippon Airways, occurred on September 25, 2011.204 This massive delay was blamed on a number of factors, including Boeing’s rampant outsourcing and the resultant lack of supervision and 202 Mariah Stewart & Ryan J. Reilly, Ferguson Prosecutor Accused of Misconduct Crusading Against Ferguson Arrestees, HUFFINGTON POST (July 2, 2015), http://www.huffingtonpost.com/entry/stephanie-karr-ferguson_n_7707802. 203 In the case of an elected prosecutor, elections are the usual method for holding such a prosecutor accountable, while prosecutors who are appointed are subject to myriad ways in which they may be terminated their position, which such diversity understandable given the number of unique local governments. Given the lack of data collected on the subject it is difficult to ascertain at this juncture how many unelected prosecutors are hired by way of competitive bidding versus those who are merely appointed to their positions. 204 BOEING, ANA Complete Contractual Delivery of First 787 Dreamliner, http://boeing.mediaroom.com/2011-09-25-Boeing-ANA-Complete-Contractual-Deliveryof-First-787-Dreamliner (last visited July 14, 2016). 44 PROFIT-DRIVEN PROSECUTION [8-Aug-16 accountability.205 Even after delivery of the 787 to varying airlines, the aircraft suffered from a variety of defects, including electrical and battery system flaws, fuel leaks, cracked windshields, and brake problems, leading carriers the world over to ground the 787 in 2013, the first “regulatory grounding of an entire fleet […] since 1979.”206 Production of the 787 had also gone over budget by several billions of dollars.207 The ability of a principal to avoid accountability or political fall-out for problems arising from placing prosecution services up for competitive bidding is rather similar. A mayor or local government council can more easily foist any blame or political damage on a prosecutor under such an arrangement.208 Prosecutors hired through a competitive bidding process may attempt to do the same: “When problems arise, government officials and private contractors can point fingers at each other, leaving the public with little means of knowing who is really at fault.”209 Try as many may, justice, fairness, and public confidence in officials is not something that can or should be quantified or balanced against any other savings that can be measured in dollars. D. Illusory Problems of Outsourced Prosecution While relying on a contract model for prosecution services increases the risk of a prosecutor self-dealing or otherwise executing their jobs improperly by being motivated, one way or the other, conscious or not, by financial pressures, other concerns that have been previously addressed are not the serious evils some would believe them to be. Underperformance of a different sort than that discussed above has troubled some: “The demands of the contractor’s private matters could monopolize the attorney’s time, leaving the criminal prosecution matters without the appropriate focus and attention.”210 Especially in the context of small jurisdiction contract 205 Dominic Gates, Boeing 787’s problems blamed on outsourcing, lack of oversight, SEATTLE TIMES (May 1, 2015), http://www.seattletimes.com/business/boeing-787rsquosproblems-blamed-on-outsourcing-lack-of-oversight/; Michael Hiltzik, 787 Dreamliner teaches Boeing costly lesson on outsourcing, L.A. TIMES (Feb. 15, 2011), http://articles.latimes.com/2011/feb/15/business/la-fi-hiltzik-20110215; J. Lynn Lunsford, Outsourcing at Crux of Boeing Srike, WALL ST. J. (Sept. 8, 2008), http://www.wsj.com/articles/SB122083149762108451. 206 Steve Denning, The Boeing Debacle: Seven Lessons Every CEO Must Learn, FORBES (Jan. 17, 2013), http://www.forbes.com/sites/stevedenning/2013/01/17/the-boeingdebacle-seven-lessons-every-ceo-must-learn/#70368733744f, Jan. 17, 2013. 207 Hiltzik, supra note 179. 208 Epstein, supra note 21, at 2242. 209 Matthew Diller, The Revolution in Welfare Administration: Rules, Discretion, and Entrepreneurial Government, 75 N.Y.U. L. REV. 1121, 1210 (2000). 210 Fairfax, supra note 24, at 284 – 285. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 45 prosecutors on which this Article focuses, it is quite unlikely that attorneys will be dividing their attention between any sort of high power, national or international private practice with an additional local prosecutor job as a supplement to that practice. Both the ABA and National Prosecution Standards anticipate severe conflict of interest traps when criminal prosecutions are outsourced. In prescribing full-time prosecutors over part-time ones who have been hired by contract, the National Prosecution Standards explain that no prosecutor should “engage in professional conduct that is inconsistent with the need for prosecutorial independence.”211 The ABA Prosecution Standards exhort prosecutors to “not be involved in the prosecution of a former client.”212 There also exists in some circles trepidation that contract and/or part-time prosecutors may prosecute former clients (and potentially be overly lenient with criminals who need harsher treatment, presumably), or that such prosecutors may try to use information gained during a prosecution or investigation against other actors when practicing civilly in an improper way while trying to derive some sort of advantage. The practical reality that the ABA and NDAA Prosecution Standards, as well as legal scholars, have seemed to ignore is that the danger of conflicts of interest involving the prosecution of either current or past clients is overstated. In those jurisdictions small enough that hiring one full-time prosecutor is impossible, every attorney and any resident with involvement with the courts will know who the prosecutor has previously represented or whether the prosecutor is attempting to improperly utilize superior knowledge. These communities are able to a greater degree to police themselves in an effort to avoid any of the more traditional conflicts of interest that may arise for a prosecutor in a larger market.213 E. Comparisons with Other RFP Processes Local governments fulfill many of their needs for both goods and services by way of competitive bidding processes, and, as such, it may seem that if certain service needs may be fulfilled by a such a procurement process, then prosecution should be no different. The fact that prosecutors, 211 NDAA Standards, supra note 66, at Standard 1-1.3. ABA Prosecution Standards, supra note 17, at Standard 3-1.7 213 In an example geographically close to home for the author, the Utah Supreme Court decided that the “vital interests of the criminal justice system are jeopardized when a city prosecutor is appointed to assist in the defense of an accused. Consequently, we hold that as a matter of public policy […] counsel with concurrent prosecutorial obligations may not be appointed to defend indigent persons.” Utah v. Brown, 853 P.2d 851, 856-857 (Utah 1992). 212 46 PROFIT-DRIVEN PROSECUTION [8-Aug-16 however, provide a uniquely important public service that should not be subject to competitive bidding, however, becomes clearer when looking at two other examples in which governments typically contract for services after a public bidding process—the construction and operation of private prisons and the hiring of public defenders. Comparisons with those two industries will be made Parts E.1. and E.2., below. 1. Bidding for Prosecutorial Services versus Private Prisons One useful reference point for thinking about the risks of outsourcing prosecution is the privatization of prisons. The growth of privatized prisons has been astronomical in the past few decades. “In 1999 private prison contracts existed in 31 states. That figure grew to 33 states by 2004, before declining to 30 by 2010.”214 Contracts for the building and operation of private prisons are usually granted to an applicant after a similar public bidding process as that examined thus far in this Article, offering a useful comparative analogy from a different sector of the criminal justice system.215 Privatization of prisons has been advocated for the same reasons as privatizing many other government and public services—cost savings, superior quality for greater value, and job generation have all been advanced as reasons for the bidding and outsourcing of both construction and operation of private prisons. Perhaps unsurprisingly, however, unique issues arise with the privatization of prisons; it is often difficult to maintain “all the services necessary to maintain safety in prisons” as the “services that receive comparatively less funding in order to contain costs” are both “personnel and programs.”216 Corrections Corporation of America (“CCA”) made it clear in their 2010 Annual Report that their main goal is profit-making and cost savings: Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correction and detention facilities. This possible growth depends on a number of factors we cannot control, including crime rates 214 Cody Mason, SENTENCING PROJECT (Jan. 2012), Too Good to be True: Private Prisons in America 5, http://sentencingproject.org/wp-content/uploads/2016/01/Too-Goodto-be-True-Private-Prisons-in-America.pdf. 215 See Lauren Galik, Leonard Gilroy & Alexander Volokh, REASON FOUNDATION (June 2014), Annual Privatization Report 2014: Criminal Justice and Corrections, http://reason.org/files/apr-2014-criminal-justice.pdf. 216 Id. at 10. 8-Aug-16] PROFIT-DRIVEN PROSECUTION 47 and sentencing patterns in various jurisdictions and acceptance of privatization. The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws.217 While they may not seem alike on their surface, prosecutors competing for contracts and CCA (and, presumably, other firms in the privatized prison trade) are subject to some of the same vicissitudes effecting their abilities to secure business for themselves, such as crime rates, appetites for the bidding and privatization processes in different jurisdictions, and stringency in law enforcement not just on the policing side but also the drafting and amending of criminal codes to be either more lax or more restrictive. Private prison contractors such as CCA and the GEO Group, however, are engaged to provide services whose aspects are quantifiable and, as such, possible to evaluate.218 There are often concrete standards that such companies are expected to meet, from staffing requirements,219 maintenance of facilities and equipment,220 food service protocols,221 square 217 Id. at 12 (internal quotations omitted). Information on private prisons, however, is becoming more difficult to obtain. Rep. Sheila Jackson Lee of Texas introduced for the sixth time the proposed Private Prison Information Act of 2015, which endeavored to have records regarding private prison operations subject to FOIA in the same manner as records maintained by any other federal agency. See H.R. 2740, 114th Congress (Sess. 1). The bill was referred to the Crime, Terrorism, Homeland Security, and Investigations Subcommittee on June 16, 2015, and had not seen any progress since. See All Bill Information (Except Text) for H.R.2470 – Private Prison Information Act of 2015, https://www.congress.gov/bill/114thcongress/house-bill/2470/all-info (last visited July 21, 2016). 219 Forrest Wilder, World’s Largest For-Profit Prison Blasted in Federal Audit, TEX. OBSERVER (Apr. 23, 2015), https://www.texasobserver.org/worlds-largest-for-profitprison-blasted-in-federal-audit/ (discussing a private prison company’s violation of staffing requirements set by the federal Bureau of Prisons). 220 Caroline Isaacs, AMERICAN FRIENDS SERVICE COMMITTEE (2015), AFSC White Paper: Private, For-Profit Prisons in Arizona 2, https://morrisoninstitute.asu.edu/sites/default/files/content/products/AFSC.pdf (discussing security failure related to equipment and facilities maintenance problems, such as “malfunctioning cameras, doors, and alarms; holes under fences; [and] broken perimeter lights and cameras[.]”). 221 Ohio Dep’t of Rehab. & Corr. (2012), Lake Erie Correctional Institution, September 18 – 20, 2012, Full Internal Management Audit 8, http://www.dispatch.com/content/downloads/2012/10/prison-audit-report.pdf (listing food service concerns such as not taking food product temperatures regularly, lack of proper sanitizing of pots and pans, and a lack of extra clean clothing that was supposed to be provided to inmate food service workers). 218 48 PROFIT-DRIVEN PROSECUTION [8-Aug-16 footage depending on the type of room and its proposed occupancy,222 and the like. Prosecutors, on the other hand, are charged, as has been discussed throughout this Article, with a special “duty to do justice,” a duty which can best be described employing Professor Bruce Green’s words—“protean as well as vague.”223 “Unfortunately, the worth of justice cannot be accurately quantified.”224 Justice is a concept and ideal that cannot survive quantification; attempts to do so would provide results and measurements for different concepts altogether, such as crime or conviction rates.225 It is precisely due to the unquantifiability and ineffable character of “justice” that its minister should be not be put up for competitive bid by any level of government, local or otherwise, to be auctioned off to the lowest bidder. Given the nature of justice, it becomes all the more incumbent on a prosecutor to not put themselves in situations, including securing employment by way of public bidding, that may call their motives to question. On a more practical level, it is exceptionally difficult to evaluate uses of prosecutorial discretion in an objective fashion as one might the performance of a private prison operator. The important roles and duties of a prosecutor also demand that applicants inherently have some disposition to doing justice on behalf of the clients – in this case, the public. Throwing open the hiring process through a public bidding and RFP process, however, could hypothetically lead to candidates attempting to purchase the ability to “do justice” from a local government. While unlikely, nothing in the RFPs reviewed (and one may venture to guess that no RFPs currently existing) explicitly prevents an applicant from attempting to pay a local government for the privilege of serving as a local prosecutor. The caliber of a candidate would certainly be suspect in such a situation; the applicant willing to not only underbid but either work pro bono or to pay for such a position would almost certainly be doing so for political clout, for the sheer enjoyment of 222 See 501 KEN. ADMIN. REGS. 3:050. Bruce A. Green, supra note 44, at 608. 224 Thomas E. Bilek, Accountants’ Liability to the Third Party and Public Policy: A Calabresi Approach, 39 SW. L.J. 689, 702 (1985). 225 In this sense, I would argue that justice has much in common with mercy, which also cannot be quantified and which a prosecutor, in a position of discretionary power, may certainly employ in circumstances they may think are appropriate, providing yet another amorphously unquantifiable tool in the prosecutorial toolbox. “[J]ustice and mercy both have roles in the criminal justice system; mercy cannot be precisely quantified and institutionalized or it ceases to be mercy and becomes leniency; mercy is the trump that can capture equality’s ace and allow punishment at the bottom range of a deserved punishment.” NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW 180 (1982). 223 8-Aug-16] PROFIT-DRIVEN PROSECUTION 49 prosecuting individuals and exerting the government’s power over defendants, or for some other ignoble purpose.226 2. Bidding for Prosecutorial Services vs. Indigent Defense Another important reference point for evaluating the risks of contracting out prosecutorial services is the competitive bidding of our indigent defense services. Providing for indigent defense services, much like prosecution services, is also difficult for small local governments, especially those located in nonmetro areas. Given that public defense would seem to be the other side of a coin shared with the prosecution function, one may initially believe that all of the same problems exist for public defender positions that are contracted out after an RFP/bidding process as for contracting out prosecution. The roles of the defense attorney versus the prosecutor, however, affect the analysis of which, if any, actors in the criminal justice system at a local level should be hired by way of RFP. Defense attorneys, for a variety of reasons, may be seen as being held to a much lower aspirational bar than that imposed on the prosecution function. Rather than having to represent the public or being tasked with a job as seemingly full of contradictions as a prosecutor’s charge to effectuate “justice,” a defense attorney’s loyalty and fiduciary duty run to his client and his client alone.227 While it has been held that the “right to counsel is the right to the effective assistance of counsel,”228 it is particularly difficult, if not nearly impossible, to make the requisite showing necessary to establish ineffective assistance of counsel.229 Though defense attorney performance is to be assessed using an “objective standard of reasonableness,” courts are “highly deferential” when reviewing a defense 226 This assessment does not take into consideration the valuable work of prosecutorial clinics, such as those operated by Harvard Law School or the University of Virginia School of Law, that provide services pro bono to different prosecutor’s offices. Students participating in such clinics, however, often receive experience that will boost their chances of employment after law school, as well as credits that may be applied toward graduation. Students participating in prosecution clinics, as such, are not providing free services at all. 227 “Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.” Strickland v. Washington, 466 U.S. 668, 688 (1984)(citing Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)). 228 McMann v. Richardson, 397 U.S. 759, 771 note 14 (1970). 229 There are two factors to consider when attempting to establish ineffective assistance of counsel: 1) deficient performance, and 2) the deficient performance resulting in prejudice serious enough to bring the outcome of the proceeding into question. Strickland, 466 U.S. at 689 – 691. 50 PROFIT-DRIVEN PROSECUTION [8-Aug-16 attorney’s performance.230 Strategic choices by defense counsel are “virtually unchallengeable,” including “reasonable decision[s] that make particular investigations unnecessary.”231 Any defendant attempting to make a showing that his attorney rendered ineffective assistance of counsel “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”232 As elucidated by Strickland and its progeny, the burden on a defendant seeking to demonstrate ineffective assistance of counsel is, in most circumstances, insurmountably high. Conversely the standard for sufficient defense attorney performance is very low, for good or ill. The only legal concern when putting public defense contracts up for bid is hiring an attorney who can surpass the low standard set for “effectiveness.”233 On the other hand, however, this low bar is a bar that has been more firmly defined that a prosecutor’s duty to “seek justice.” This Article certainly does not advocate that the public defense bar seek to only meet its rather low minimal obligations to clients; it does, however, argue that public defenders have clear, articulable standards to follow by which their performance may be more easily assessed and for which they must be accountable in contrast to the vague but important goal to “do justice” incumbent upon a prosecutor. In this sense, public defenders have a more objective standard by which to judge themselves by why which to be judged and procurement of their services by way of RFP and competitive bidding is not nearly a problematic. IV. CONCLUSION While most contract prosecutors hired through an RFP and competitive bidding process likely believe themselves to be devoid of any form of destructive tendency to over or underperform, contracting out for prosecution services, especially as a method for saving resources rather than hiring a prosecutor on a salaried basis, should be abandoned. This Article demonstrates that incentives for prosecutors to engage in self-interested behavior by under or over-performing while engaging in revenue 230 Id. Id. 232 Id. at 694. 233 Public defenders hired on a contractual basis by way of RFP may, however, feel some similar economic pressures and incentives as prosecutors, including overbilling when hired on an hourly basis, and underperforming so as not to run over any set budgets set by the local governments that have contracted with them. 231 8-Aug-16] PROFIT-DRIVEN PROSECUTION 51 generation, as well as the incentives for local governments to prioritize profit-driven prosecution, are too great. Apart from the perverse incentives that operate upon prosecutors and local governments when employing competitive bidding and RFPs in prosecution service procurement, the public is also deprived of a prosecutor who meets exemplifies long-standing prosecutorial norms: 1) a full-time government employee, 2) who devotes all of her time and professional energies to criminal prosecution, and 3) tries to somehow do or effect some vague notion of “justice.” This Article is the first of its kind to examine the pitfall of employing RFPs on the local and municipal prosecutor level. While the problems that arise from this process may initially seem far removed to many, especially those living in large cities, with greater budget shortfalls and pushes for devolution of governmental responsibilities to local governments occurring nationwide, the problems described in this Article are very likely to spread. Further investigation into potential interventions on local government levels will be necessary to stanch and prevent this increase.