Ronald Wright (Wake Forest) and Rodney Engen (NC State) have written an empirical analysis of prosecutorial discretion entitled The Effects of Depth and Distance in a Criminal Code on Charging, Sentencing, and Prosecutor Power. The Abstract is below the fold:
Today’s conventional wisdom about criminal justice in the United States tells us that criminal codes do not matter much. The real impact of the criminal law appears not in the statute books but in the choices of criminal prosecutors who apply those laws. Moreover, decision-making by prosecutors takes on even greater importance in the context of late twentieth century reforms that have made sentencing more determinate and less discretionary. Scholars have argued that these legal changes have effectively increased prosecutorial influence over sentences.
Despite these claims, little is known about the actual use of prosecutorial discretion under these kinds of sentencing laws. In this Article, we use statewide data to examine the amount of charge movement in North Carolina, and estimate the impact that charge reductions have on sentencing outcomes. The evidence shows that charge reductions are common, occurring in roughly half of all felony cases that resulted in conviction, and that the prosecutor’s decision to reduce criminal charges has a large effect on average sentence severity.
These effects do not apply equally, however, to all crimes. To
understand why, it is useful to think about two dimensions of the
criminal code and sentencing guidelines. First, the depth of the
criminal code refers to the number of charging options available to
prosecutors, charges that might apply to a given set of facts.
The second conceptual tool is the distance between charging options, which refers to the relative difference in the sentences that attach to the more- and less-serious charging options.
What are the effects of depth and distance in the criminal code and accompanying sentencing guidelines? When a group of related crimes offer deeper charging options, the prosecution and defense agree more often to reduce the charges. Large distances between the available charging options make it less likely that the prosecution and defense will agree on a particular charge reduction. In those areas of the code where distances between charges are greater, charge reductions explain a large component of the sentence imposed in the case.
Thus, in theoretical terms this Article updates the idea (today considered by many to be quaint) that the substantive criminal law determines the outcome of the criminal process. Plea bargaining is not an entirely Coasian exercise that allows the parties to negotiate a customized outcome without regard to the legal rules that create starting points. Even in a world where prosecutorial discretion is a dominant feature, the substantive criminal law matters.