University of Pennsylvania Law Review
University of Pennsylvania Law Review FOUNDED 1852 ________________ Formerly American Law Register ________________________ VOL. 157 APRIL 2009 NO.4 ARTICLE PROSECUTORIAL REGULATION VERSUS PROSECUTORIAL ACCOUNTABILITY † STEPHANOS BIBAS No government official has as much unreviewable power or discretion as the prosecutor. Few regulations bind or even guide prosecutorial discretion, and fewer still work well. Most commentators favor more external regulation by legis- latures, judges, or bar authorities. Neither across-the-board legislation nor ex post review of individual cases has proven to be effective, however. Drawing on man- agement literature, this Article reframes the issue as a principal-agent problem and suggests corporate strategies for better serving the relevant stakeholders. Fear of voters could better check prosecutors, as could victim participation in individ- † Professor, University of Pennsylvania Law School. B.A., Columbia; B.A., M.A., Oxford; J.D., Yale. E-mail: stephanos *dot* bibas *at* gmail *dot* com. Thanks to Rachel Barkow, Richard Bierschbach, Paul Butler, Adam Cox, Mariano-Florentino Cuéllar, Margareth Etienne, Jeffrey Fagan, Jacob Gersen, Bernard Harcourt, Todd Henderson, Douglas Lichtman, Erik Luna, Richard McAdams, Tracey Meares, John Pfaff, Randal Picker, Eric Posner, Margaret Raymond, Jacqueline Ross, Carol Steiker, Lior Strahilevitz, Ronald Wright, and participants in the University of Chicago Crimi- nal Justice Roundtable for their thoughts and comments and to Jordan Esbrook and Brian Raimondo for research assistance. (959) 960 University of Pennsylvania Law Review [Vol. 157: 959 ual cases. Scholars have largely neglected the most promising avenue of reform, namely changing the internal structure and management of prosecutors’ offices. Leaders could do more to develop office cultures, norms, and ideals that value more than maximizing conviction statistics.
[Show full text]