Are Conviction Bonuses For Prosecutors Ethical?

Next, how about a bonus for confessions?

Sometimes a story starts the ethics alarms ringing so loudly that it is hard to think about anything else. It is rare, however, to have this occur when it is not entirely clear what is so unethical. An unusual bonus arrangement in Colorado is in this category.

Carol Chambers, the District Attorney for Colorado’s Eighteenth Judicial District, offers financial incentives for felony prosecutors who meet her office’s goals for convictions.  Plea bargains and mistrials don’t count in the incentive program; they have to be trial convictions.  The bonuses average $1,100, and Chambers says she gives them out to encourage prosecutors to bring her district’s rates in line with other jurisdictions in the state. No other Colorado DA gives out bonuses, or bases evaluations on conviction rates.

There are no professional ethics rules for lawyers or prosecutors that would explicitly condemn this measure, yet it stinks to high heaven. Prosecutors are duty-bound to seek justice, not convictions.  The presumption of the bonus system is that every defendant prosecuted is guilty, a seemingly reasonable position because prosecutors are not supposed to prosecute anyone they do not reasonably believe can and should be found guilty beyond a reasonable doubt, based on legal and reliable evidence.  Yet we know that many, many prosecutions are dubious at best, and that instances of prosecutors cutting ethical corners to convict innocent defendants are far from rare (See Nifong, Mike, et al.). A cash bonus to a truly ethical prosecutor shouldn’t do any harm at all, and Chambers must believe all her prosecutors are ethical.  If, however, there are any ethics fault-lines in  an assistant DA’s professional soul, providing an incentive to go for a conviction when the fairer and more prudent course would be plea bargain or drop the case entirely might just trigger a disaster.

Prosecutors, like all lawyers, are ethically bound to represent their clients to the best of their abilities under the law and rules of ethics. If they are meeting that standard, the existence of those bonuses shouldn’t effect their performance at all; the only prosecutors they could motivate would be those who weren’t meeting their ethical duty of zeal in the first place. If the bonuses are designed to push ethically-deficient prosecutors to meet their obligations to their client, the state, aren’t they just as likely to push those ethically-challenged prosecutors to be over-zealous, going for the bucks with a conviction rather than giving away a potential bonus by dropping a weak case, as they should?

Meanwhile, the bonus plan looks just awful. A defense attorney has subpoenaed the office’s documents relating to it, arguing that the bonuses give prosecutors a “financial interest in the cases.” All lawyers have financial interests in winning trials, including prosecutors: if you keep losing, eventually you won’t have clients or a job. Is it wise, however, to feed the public perception that anything other than seeking justice determines how hard a prosecutor works for convictions?

My alarms are still ringing, but there is no provision in the Colorado rules that could reasonably be interpreted as prohibiting  the prosecutor bonuses. Thus I am perplexed by this question:

If we agree that a system awarding  judges bonuses for high conviction rates would undermine trust in the justice system and lead to compromised integrity judicial, how can giving prosecutors bonuses for convictions be ethical?

10 thoughts on “Are Conviction Bonuses For Prosecutors Ethical?

  1. Just because it’s not mentioned in the ethics rulebook, doesn’t mean it’s ethical. Don’t you espouse a stripped down ethical standard based on common sense?

    To further your points, prosecutorial discretion is completely upset by this scheme. An offense that often turns into a plea deal may be prosecuted to boost one’s numbers, wasting taxpayer time and money and the defendent’s money. The defendent may be guilty, but they aren’t fair and equal treatment. Worse would be a case that’s normally not prosecuted at all. As we should all know, we’re all guilty of something.

  2. You know I agree with all of that. I raised this issue with a group of legal ethics specialists to make just that point…this is a big loophole in the Rules. And the Rules themselves say “we can’t think of everything.” Bur the near universal thinking of lawyers, and most professionals, is that if it’s not prohibited, it’s ethical.

    • Which is why your job is so important, and part of why I read your blog. There have been a number of issues that I hadn’t thought of as unethical until you laid them out.

  3. Well, I’m glad it’s limited to “Felony Prosecutors”. Dragging misdemeanor cases to trial when they are easily plea bargained is a complete waste.

    Because there is no dis-incentive to lose a case, I don’t think this award will be as helpful as one might think. Sure, the prosecutor will bring their A-game, but if it’s a close call, instead of plea bargaining near the end, the prosecutor will not negotiate and the DA will take some loses just because the prosecutor thought he *might* get a payday.

    The payment scheme, foremost, has problems with appearance and on top of that, it probably won’t have the desired outcome. Adding a dis-incentive to lose would only add additional problems and create a truly bad situation. If the prosecutors aren’t doing their job or aren’t good at their job, she needs new prosecutors.

  4. The problem (for an ethically challenged prosecutor) is when you know you can convict someone even though they don’t deserve to be convicted.

    Let’s say student A has a computer in his dorm room. His roommate, B, often uses the computer when A isn’t there. The police are tipped off by campus computing that the computer in the room is being used for illegal activity. The police come and seize the computer, and find lots of evidence that it was being used for illegal activities. After hearing that the police took the computer, student B disappears. Student B doesn’t even pack a bag, he just turns around and leaves, never to be seen again. The prosecutor has a lot of evidence against student A and could possibly convict him, but given the actions of student B, should he? What if he needs one more conviction this month to make his quota?

  5. I’m a public defender. I deal with prosecutors every day, some of whom are incredibly fair-minded and some of whom think every offense should be a capital offense. Often, we are able to make plea agreements in cases which reduce a felony to a misdemeanor, especially in shoplifting and larceny cases where the amount involved is close to the threshold between misdemeanor and felony ($200 in Virginia), even though the defendants are uneqivocally guilty of a felony offense and where the defendant has no prior record. Such agreements are possibly only because some prosecutors have enough heart to realize that the consequences of a felony conviction in Virginia are far-reaching (e.g., right to vote gone forever) and that a conviction for a CMT (Crime involving Moral Turpitude) is enough for a foolish and frequently youthful mistake. Now imagine a prosecutor saying “If I reduce this case to a misdemeanor, I won’t get a shot at $1,100.” I can also imagine a prosecutor pressuring a defendant (through counsel) not to plead guilty. (What a reversal of tactics! “If you plead guilty, I will bring these additional charges against you.” )
    I kinda had the notion that paying money to public officials so as to influence their decisions was bribery, but I could be wrong.

  6. I’d say simply that money and justice don’t mix. As you point out, Jack, the idea is justice under law. The duty of “officers of the court” is to bring about that justice through fair observance through witness and evidence to a jury of citizens.

    “Financial incentives” are already the bane of that system and have brought it into disrepute. That’s on the “defense” side. For prosecutors, a high conviction rate is often their key to higher political office. They don’t need taxpayer money directly to their own pockets as well. Besides, what kind of convictions? The political brochures seldom mention this.

    It’s not convictions, but justice that should be the prime motivator. Is that asking too much of a public servant? I could also mention, as a footnote, that district attorneys have been known to cultivate local businesses, unions and other groups for financial support in retaining office. Some aren’t too choosy about their supporters, either. This has led to outrageous cases of “selective justice”.

    In mentioning Mike Nifong, one could point out a number of other North Carolina D.A.’s who tarnished themselves in this manner. Ben David of Wilmington and Rex Gore of Brunswick- along with Attorney General Roy Cooper (all currently in office)- have proven themselves to be heartless political operatives instead of public protectors. Utah Attorney General Mark Shurtleff (a Republican) likewise falls into this category. I refer you to some of my columns on that score. It might be said by some that public incentives will reduce corruption among prosecutors.

    Personally, I suggest that those attorneys who are liable to be swayed by unethical motivations will do so regardless… and are unfit for their offices besides. I’d further suggest that one good way of marking such persons is by whether of not they support and/or receive such rewards… and by what means they secure convictions to procure same.

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