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Thursday, December 29, 2011

Felony Prosecutions Are Cheap

Earlier this week, the Bureau of Justice Statistics released the latest data from its periodic national surveys of prosecutors’ offices.  The report contains a lot of interesting information (albeit perhaps a bit dated — the survey was from 2007).

The number that struck me the most was $2,792 — what BJS reported as the cost per felony prosecution in large jurisdictions.  This seems to me a remarkably low number in light of the very high stakes in a felony prosecution, both for the defendant and the community (incarceration costs, for instance, may average in the neighborhood of $30,000 per inmate per year).  Is $2,792 in prosecutorial costs really enough to ensure reliable decisionmaking at the charging and adjudication stages of a criminal case? For the cost of a family vacation to Disney World, we are deciding to send people to prison for five, ten, twenty years or more?

From the standpoint of private litigation practice anyway, this would be an awfully small legal bill.  Admittedly, the comparison is problematic in many respects, but I don’t think it entirely irrelevant.

To be sure, the $2,792 both overstates and understates the costs in important ways.

It understates the costs because it reflects a crude calculation: BJS merely divided the total budget of prosecutors’ offices by the number of felony cases.  However, prosecutors do much more than simply prosecute felonies.  For instance, BJS’s 2001 survey revealed that most prosecutors’ offices also handle misdemeanors, traffic violations, juvenile matters, and civil litigation on behalf of government agencies.  Close to half also do child-support collection.  If we took into account all of these other prosecutorial activities, the amount spent per felony prosecution would presumably be much less than $2,792.

Moreover, the $2,792 average also reflects all manner of overhead expenses.  To get a real sense of the scale of prosecutorial effort per case, it might be more illuminating to factor out some or all of the overhead (although this is probably much easier said than done).

Finally, the $2,792 figure reflects just the costs in jurisdictions of one million or more.  Costs probably tend to be higher in big cities than in other jurisdictions, which means that the overall national average is likely quite a bit less than the $2,792.  As I calculate it ($5.8 billion in total prosecution budgets divided by 2.9 million felony cases), the overall average would be $2,000.

But these numbers also significantly understate the societal expense in screening and adjudicating felony cases, for they omit the money spent on police, courts, and defense representation.

Still, it may not be entirely inaccurate to say that the prosecutor’s decisions are the most important ones for the criminal-justice system to get right.  Indeed, the charging decision is arguably the single most important decision in the entire process, based both on its immediate impact on a defendant’s life (stigma, risk of pretrial detention, costs of defense, etc.) and on the high rate of conviction of charged defendants (the new BJS survey indicates that 2.9 million felony cases in 2007 resulted in 2.2 million convictions).  The prosecutor’s decisions with respect to plea-bargaining and (in some jurisdictions) sentencing recommendations are also momentous.

Bottom line: the $2,792 figure misses an awful lot, but it does point to a mass-production, rough-justice quality to much felony prosecution and raises the question of whether spending more money on prosecutors would in some sense produce better outcomes.

(Of course, part of the problem with posing this question is that it is not immediately clear how one ought to measure the quality of outcomes in criminal matters, apart from avoiding wrongful convictions.)

In any event, the BJS report also gives us some insight into why felony prosecutions are cheap.

For one thing, survey respondents indicated that only 3% of all felony cases were resolved by way of a jury verdict.  This highlights how completely (cheap) plea bargains have replaced (expensive) jury trials as the dominant method of case resolution.  Again, one might pause here to question what (if anything) has been lost quality-wise by dispensing with jury trials in our criminal-justice system.

ƒƒThe BJS report also indicates that prosecutor salaries are not especially high:

The average annual salary for assistant prosecutors ranged from $33,460 for entry-level assistant prosecutors in part-time offices to $108,434 for assistant prosecutors with 6 or more years of experience in offices serving jurisdictions of 1 million or more residents.

Granted, $108,434 probably looks pretty good to many attorneys in the current legal market, but bear in mind that this is where experienced big-city prosecutors are maxing out.  Also, I wonder if this is one area in which the 2007 data are particularly out-of-date — my sense is that the last four years have hardly been kind to prosecutorial paychecks.


Posted by Michael O'Hear on December 29, 2011 at 05:19 PM in Criminal Law | Permalink


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What's a prosecution? Surely it can't be through trial. What if the charge is made but then quickly reduced or otherwise pled out? That would show that the number is very low as to real prosecutions through trial.

Also, it may just show that prosecutors are underpaid and overworked, leading to low expenditures for large volumes of time.

Posted by: Michael Risch | Dec 29, 2011 5:48:26 PM

The point that there may be a profound disconnect between relative expenditures on prosecution and social costs of incarceration is a good one. That said, given the highly skewed distribution of expenditures (i.e., little for 98% of cases and quite a lot for the 2% trials), the mean is an inappropriate statistic to use to gauge how much is being spent on genuinely contested cases of the type we might be most concerned about. Related to this (and sticking to the 1 million + column), I note that the median proportion of cases resolved through conviction by the offices is about 61%, so a substantial percentage of the cases may require nothing more than deciding not to proceed.

Posted by: Erik | Dec 30, 2011 12:22:00 AM

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