Prosecutors and Their Agents, Agents and Their Prosecutors

Immigration and Prosecutorial Discretion

“…The relationship between US attorneys and investigative agencies is complex, with each actor enjoying resources that can be used to influence the behavior of the other (Eisenstein 1978; Richman 2003). Even though federal prosecutors have the ability to decline agency referrals, it is possible that district variation is due partly to the behavior of investigative agencies – a “supply-side” dynamic in which prosecutors prosecute whatever FBI agents refer them.…”

Agency Slack and the Design of Criminal Justice Institutions

“…These are not the only constraints on monitoring in law enforcement. For example, Richman (2003) has pointed out that prosecutors and law enforcement agents in the United States often operate in collaborative team. This implies the existence of a team production problem for a principal, where the bundled nature of outputs renders it difficult to reach separate judgments about each participant in the team (Holmstrom 1982).…”

Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts

“…The U.S. federal system largely employs a bifurcated approach in which agencies such as the FBI investigate criminal behavior and then refer those investigations to prosecutors in the Department of Justice or United States Attorneys’ Offices who decide whether to prosecute those referrals. Federal prosecutors are expected to serve a gatekeeping function, ensuring that nonmeritorious referrals are winnowed down from the federal criminal justice system (Eisenstein 1978; Rabin 1972; Richman 2003). If an assistant U.S. attorney received an FBI referral that seemed a weak case, or one fraught with constitutional problems, or one resulting from a malign or overzealous investigation, the prosecutor could decline to prosecute the case.…”

“…They may be weak or trivial cases, are more appropriately handled by other legal processes (such as civil suits), or are incompatible with Department priorities (Frase 1980; O’Neill 2003). As Richman (2003: 763–767) notes, however, investigators may refer a matter to prosecutors with the expectation that the matter will be declined. These “consensual declinations” can result from an agent's desires to artificially inflate her arrest and referral statistics to meet administrative or budgetary expectations, to obtain political cover for the decision not to prosecute a particular defendant, or merely due to the fact that the referral was necessary in order to obtain a subpoena or other surveillance device (ibid.).…”

“…One cannot make much of high declination rates, according to the FBI, because the agency never intended those referrals to be prosecuted in the first place. Such a practice, whereby agents refer matters to prosecutors with the expectation that those matters will be declined, has been termed “consensual declination” (Richman 2003).…”