A Role for Prosecutors in Criminal Justice Reform?

At Marginal Revolution, Tyler Cowen links to an article by Scott Bland titled, “George Soros’ quiet overhaul of the U.S. justice system.” Basically, the article discusses the possibility of achieving significant criminal justice reform by electing prosecutors sympathetic to progressive reform goals. Specifically, Bland notes Soros’ support for prosecutors that run on platforms of “reducing racial disparities in sentencing and directing some drug offenders to diversion programs instead of to trial.”

Could this work?

I’m skeptical. I always say that prosecutors are sentence maximizers, but their sphere of competition is limited to their district. If the average sentence associated with some crime falls across the district (because that charge becomes eligible form pre-trial diversion, for example) prosecutors will be indifferent. This rule change results in a level effect – the annual sentence level for each prosecutor falls, but the distribution of sentences is preserved. In other words, if prosecutor A’s average sentence length is 10% greater than prosecutor B’s average sentence length, this rule change does nothing to effect that. Of course, if you believe – like I do – that crime and punishment is overrated, expanding pre-trial diversion programs makes the world a marginally better place.

But I don’t believe the fundamental problem with the criminal justice system is sentence-maximizing prosecutors. I do believe the fundamental problem is low-quality police. Adding 87 people a year to a pre-trial diversion program is nothing compared to restructuring police incentives to align with the common social welfare goal of successfully prosecuting criminals. In northern Virginia, it is extremely common to find police officers with wildly different nolle prosequi rates across black and white defendants for the same crime type. You can probably guess which group is on the bad end of the disparity. It’s also common to find police who arrest people basically arbitrarily and consistently have virtually all of their cases dropped. Unfortunately, many defendants (especially when detained before their trial) face tremendous pressure to accept plea bargains just to get on with their lives.


Fix big problems first. I would much rather George Soros pour money into legislative efforts to tie police compensation (for example) to successful prosecution rates. It would probably cost less than what he’s doing now and it would certainly better serve progressive criminal justice reform goals.

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