Student Review:

In this article, Meares proposes adopting a system of monetary incentives to limit a prosecutor's discretion and misconduct.  Meares outlines the current problems with virtually unlimited prosecutorial discretion, and the limited review and available sanctions for prosecutorial misconduct.  Meares also discusses the problems that could arise by adopting a system of financial award for public prosecutors, but feels the benefits gained by such a system would overshadow the downfalls.
      Meares states that studies have shown that financial incentives are effective motivators and are frequently used the private arena.  However, many people are hesitant in giving rewards to public employees because of political constraints, the difficulty of measuring performance, and the fact that financial rewards can introduce bias into the prosecutor's pursuit of justice.  Meares believes that such a system will ultimately aid in the pursuit of justice rather than hampering it.  Although some would view the Speedy Disposition Program (which provided prosecutors with money for reducing detainees in New York jails) as a failure, Meares feels that the program was partly a success and suggested that financial incentives can motivate prosecutors towards a desired goal.
      Prosecutors have a great deal of discretion to charge and plea bargain with defendants.  Additionally, a prosecutor's charging discretion mostly unreviewable.  The ability to choose charges allows the prosecutor a great deal of power in plea bargaining with defendants.  While rules of ethics establish that a prosecutor cannot charge an individual with a crime for which there is no factual basis, a prosecutor can charge a defendant with offenses that she has probable cause to believe are factually justified, but may not be able to prove beyond a reasonable doubt at trial.  This allows the prosecutor to initially overcharge the defendant but reduce the charges if the defendant is willing to plead guilty.  Meares believes that such vast prosecutorial discretion harms the defendant's ability to freely and intelligently plead guilty to charges.  She suggests that financial incentives could reward prosecutors who only charge defendants with the offenses the prosecutor believes she could prove at trial.  The system would reward prosecutors who obtain convictions on the same charges pursued at the beginning of the case.  Such a standard would make a defendant's plea more voluntary and intelligent because the defendant would be able to quickly assess the strength of the charges, and prosecutors would adhere to higher ethical standards.
      In response to the objections about rewarding prosecutors with financial incentives, Meares states that evidence suggests such monetary rewards will positively motivate the behavior of prosecutors.  Meares also notes that under the proposed system, there would be fewer plea bargains and more trials and this result might be considered problematic.  However, Meares asserts that cases in which legal guilt is doubtful will create the most cases, and such an increase of these types of trials should be of little concern.  The financial rewards may also lead to prosecutors undercharging defendants just to ensure rewards and harm the system of fair punishment.  Meares states by relying on internal controls, prosecutorial culture, and reward structure, such a detriment can be limited.  Rewards can also increase race and gender bias and encourage prosecutors not to pick cases regarding these issues (i.e., cases with black victims, domestic violence situations, and date rape) because of the uncertainty of convictions.  However, Meares responds that she believes it is hard to imagine such bias problems becoming worse than they already are.
      Meares also believes that a financial incentive program can reduce occurrences of prosecutorial misconduct.  The current checks on prosecutorial misconduct (contempt sanctions by the court, public reprimands, and sanctions by professional associations) only have a limited effect.  Meares believes that financial rewards could motivate a prosecutor to behave ethically and proposes that a reward for a conviction would only be given if appellate review finds that the prosecutor's behavior was proper.  Misconduct would sacrifice the bonus.  This process would hold prosecutors to a higher ethical standard.  While this proposal also has objections (i.e., nonrigorous appellate review, court bias in favor of prosecutors, delay of review, and prosecutorial conflicts on appeal), Meares believes that these problems can be overcome.
      Thus, despite various problems that may occur due to financial rewards for prosecutors, Meares believes that none of the weaknesses are strong enough to undermine the entire system.  She believes that incentives can reduce prosecutorial charging discretion and limit misconduct.  Both of these changes would benefit the public, and at the same time encourage prosecutors to adhere to a higher level of ethical conduct.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999