Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives

Abstract

This is a piece about prosecutorial incentives in our criminal justice system and ways to reconstruct those incentives. I describe a proposal to influence and structure a prosecutor's discretion and to limit prosecutorial misconduct through financial incentives. More specifically, I propose that a system of financial rewards could influence the public prosecutor's charging decisions and control prosecutorial misconduct occurring at trial. By exploring the potential of financial incentives as a mechanism to influence the manner in which the prosecutor approaches the various tasks of her job, I hope to better conceptualize the role of the public prosecutor in our criminal justice system. The reward system I describe centers on the idea that motivating the public prosecutor through financial incentives accommodates the necessity for prosecutorial discretion in the American criminal justice system, while simultaneously recognizing the importance of encouraging the prosecutor to engage in conduct that exceeds constitutional minimums. I describe a financial incentive system of individual rewards for public prosecutors. In particular, I focus on altering the incentives of federal prosecutors, though the more generalized application of the proposal to state prosecutors probably could easily be achieved under certain circumstances.