The Process of Prosecution: Evidence from an Ethnography in a Midwestern District Attorney’s Office

• In Event: Qualitative and Legal Analysis of Prosecutorial Discretion

Abstract

After arrest, prosecutors wield immense power to shape criminal case outcomes and yet we know little about how they make decisions. The few studies that do exist generally use court administrative data to identify correlates of prosecutors’ decisions and have found evidence of racial disparities at various points in the process (e.g., Kutateladze, et al., 2014). However, these studies typically make assumptions about the meaning of certain prosecutorial decisions, such as assuming that declining or dismissing a case reflect greater leniency, when in fact this may not always be the case. This study draws on six months of observations in a District Attorney’s office and over 40 interviews with prosecutors, defense attorneys, judges, and pretrial agency staff in a mid-sized midwestern county to reveal the process through which prosecutors make decisions on cases. The findings challenge some of the assumptions embedded in existing research on prosecutorial decision-making. I find that there are more complex dynamics at play in the criminal case process that shape the decisions of prosecutors, such as communication with investigating agencies that impacts what cases are referred to the office and plea bargaining tactics that may result in overcharging initially in order to pressure defendants to plead.

Author

• Chiara Packard, University of Wisconsin-Madison