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Profit-Driven Prosecution and the Competitive Bidding Process, BYU Law, 2016

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Profit-Driven Prosecution and the Competitive
Bidding Process
Maybell Romero
J. Reuben Clark Law School

2016

J. Reuben Clark Law School, Brigham Young University
Research Paper No. 16-21

Electronic copy available at: http://ssrn.com/abstract=2820312

PROFIT-DRIVEN PROSECUTION AND THE COMPETITIVE
BIDDING PROCESS
Maybell Romero*
“It is difficult to get a man to understand something, when his salary
depends upon his not understanding it.”1
ABSTRACT
Prosecutors are the most powerful organs of the criminal justice
system, enjoying discretion in decision-making far beyond that of law
enforcement officials, defense attorneys, and judges. Perhaps due to this
exceptional position, contemporary understandings and perceptions of
criminal prosecutors have tended to be largely positive; evidence of such a
normative understanding of the prosecutor and its role may be found from a
variety of sources, from (other) law review articles to pop cultural
touchstones in television and movies. The prevailing “prosecutorial norm”
in the public consciousness embodies 1) a full-time government employee,
2) who devotes all of their time and professional energies to criminal
prosecution, and 3) tries to somehow do or effect some vague notion of
“justice.” Such norms, however, are regularly challenged and flouted
when the prosecutorial function is outsourced. While the outsourcing of
nearly every function of the criminal adjudicative process has attracted
great attention among scholars and policymakers, a greater critical lens
must be focused on prosecutors.
The hazards of prosecutorial outsourcing have largely been
neglected because existing prosecutorial scholarship focuses on the United
States Attorney or district attorneys’ offices in large, metropolitan areas.
Not all prosecutorial offices are created equal, however. Cities, towns, and
*

Visiting Assistant Professor, J. Reuben Clark Law School, Brigham Young
University. J.D, U.C. Berkeley School of Law, 2006; B.A., Cornell University, 2003.
From 2006 to 2009, the author was a Deputy County Attorney in Cache County, Utah, and
from 2010 to 2014 also served on a part-time basis as a Deputy County Attorney in Rich
County, Utah. This paper was presented at a Works-in-Progress session at the J. Reuben
Clark Law School at Brigham Young University in June 2016; at CrimFest, hosted by
Cardozo School of Law at Yeshiva University in July 2016; and at the Inland Northwest
Scholars Workshop, hosted by Gonzaga University School of Law in August 2016.
Thanks to Gordon Smith, Lisa Sun, Brigham Daniels, Aaron Nielson, Carissa Hessick,
Miriam Baer, Bruce Green, Rebecca Roiphe, Laura Appleman, David Pimentel, and to all
the participants at the three workshops for your valuable feedback and insights.
1
H.L. MENCKEN, I, CANDIDATE FOR GOVERNOR: AND HOW I GOT LICKED 109 (photo.
reprint 1994)(1935).

Electronic copy available at: http://ssrn.com/abstract=2820312

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other small political subdivisions throughout the country frequently hire
prosecutors on a part-time basis through a competitive bidding process,
releasing requests for proposals (RFPs) in an effort to procure bids. This
practice, however, may be observed not only in small or rural
municipalities, but also in cities located near larger population centers.
Examples of such municipalities include Ferguson, Missouri, or Kyle,
Texas. Such local governments often work with budgets that are not
expansive enough to hire a full-time city attorney or prosecutor. Beyond
demonstrating the qualifications the applicant attorneys or firms vying for a
prosecution contract may have to serve as good prosecutors, applications
from such applicants must also demonstrate cost effectiveness by detailing
what budget and compensation is required during the term of service
specified by the RFP.
While engaging in a competitive bidding process may seem like a smart
way to handle the problem of governmental waste and financial
inefficiencies, it introduces a host of challenges and negative externalities.
This Article sheds light on the problems caused by introducing an overtly
economic calculation (how cheaply and how profitably the prosecutorial
function may be fulfilled) into the criminal adjudicative process. This
practice not only flouts American Bar Association and National District
Attorney Association prosecutorial standards, but also undermines the
prosecutorial norms described above in ways that are likely to destabilize
confidence—and the social cohesion born of such confidence—in local
criminal justice systems. This practice has the risk, however, of expanding
beyond the reach of non-metropolitan jurisdictions to larger counties,
cities, and local governments as budgets continue to shrink across the
board and devolution and privatization continue to be advanced as curealls to economic woes.
INTRODUCTION
The shooting death of Michael Brown, an unarmed 18 year-old
African American man, at the hands of Darren Wilson, a white Ferguson,
Missouri police officer, prompted not only riots and protests in Ferguson
and beyond, but also wide-spread debates and soul searching as to the
nature of American criminal justice, especially focusing on issues such as
law enforcement militarization, limits on the use of deadly force, and
interactions between police and people of color.2
2

Similar calls for soul searching have been issued after the untimely deaths of
Trayvon Martin, Eric Garner, Walter Scott, and, even a generation ago, Latasha Harlins.
See, e.g., John Fritze, Obama calls for ‘soul searching’ in the wake of Gray’s death, BALT.
SUN (Apr. 28, 2015), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-

Electronic copy available at: http://ssrn.com/abstract=2820312

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A little less than a month after Michael Brown’s death the Civil
Rights Division of the Department of Justice initiated its own investigation
of the Ferguson Police Department pursuant to the Violent Crime Control
and Law Enforcement Act of 1994, the Safe Streets Act, and Title VI of the
Civil Rights Act of 1964.3 The Department of Justice’s investigation, in a
subsequent report released on March 4, 2015, catalogued and scrutinized a
wide array of faulty law enforcement practices perpetrated by the Ferguson
Police Department against the public.4 One of the practices highlighted in
the report was the Ferguson Police Department’s stubborn focus on
generating revenue for the city: “City and police leadership pressure
officers to write citations, independent of any public safety need, and rely
on citation productivity to fund the City budget.”5
In stark contrast to the intense public scrutiny of the discretion based
decision making and profit-motive of Ferguson’s police officers, the role of
city prosecutor Stephanie Karr, who also prioritized the enforcement of
Ferguson’s municipal code for the purposes of revenue generation, was
largely ignored publically; the Civil Rights Division investigation revealed
she engaged in a pattern of “recommending higher fines [on high volume
offenses] and recommending probation only infrequently,”6 as well as
freddie-gray-obama-20150428-story.html; Susan Crabtree, The limits of Obama’s
Baltimore
soul-searching,
WASH.
EXAM’R
(Apr.
29,
2015),
http://www.washingtonexaminer.com/obama-still-soul-searching-on-racialunrest/article/2563750; Andrea Ford & Tracy Wilkinson, Grover Is Convicted in Teen
Killing: Verdict: Jury finds Korean woman guilty of voluntary manslaughter in the fatal
shooting of a black girl, L.A. TIMES (Oct. 12, 1991), http://articles.latimes.com/1991-1012/news/mn-152_1_voluntary-manslaughter.
3
U.S. Dep’t. of Justice, Joint Statement of United States Attorney Richard G.
Callahan, Acting Assistant Attorney General For The Civil Rights Division Molly J. Moran
And FBI SAC William P. Woods|USAO-EDMO\Department of Justice (Aug. 13, 2014),
https://www.justice.gov/usao-edmo/pr/joint-statement-united-states-attorney-richard-gcallahan-acting-assistant-attorney. U.S. Dep’t of Justice, Justice Department Announces
Findings of Two Civil Rights Investigations in Ferguson, Missouri (Mar. 4, 2015),
https://www.justice.gov/opa/pr/justice-department-announces-findings-two-civil-rightsinvestigations-ferguson-missouri.
4
See generally, U.S. Dep’t of Justice, Department of Justice Report Regarding the
Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri
Police
Officer
Darren
Wilson
(Mar.
4,
2015),
https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
5
U.S. Dep’t of Justice, Investigation of the Ferguson Police Department 10 (Mar. 4,
2015),
https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf).
6
The Department of Justice’s report discussed the pressures upon the Ferguson City
Prosecutor engage in revenue generation:
Court staff are [sic] keenly aware that the City considers revenue generation to

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encouraging police officers to cite individuals with every charge possible
per incident in an effort to obtain the “correct volume of cases” on the
Ferguson municipal court docket.7 Karr started as the part-time position of
City Prosecutor in April 2011.8 At the time of this appointment, she was
already serving as Ferguson’s city attorney, providing representation on
civil matters.9 While Ms. Karr resigned from her position as Ferguson City
Prosecutor on May 24, 2016 (noting, one must wonder if ironically, that she
had “greatly enjoyed [her] work with the city of Ferguson”10), she still
retains that same or similar title and position in seven other small Missouri
cities.11 On July 16, 2016, Ms. Karr was awarded the Lou Czech Award
from the Missouri Municipal Attorneys Association for “outstanding
contributions to municipal law.”12 This award was meant to celebrate Ms.
Karr’s “exemplary service, upholding the highest standards of ethical
conduct and professionalism, and a record of outstanding contribution to the
field of municipal law.”13
For other counties, cities, towns, and local governments of similar
be the municipal court’s primary purpose. Revenue targets for court fines and
fees are created in consultation not only with [the police chief], but also the
Court Clerk. In one April 2010 exchange with [the police chief] entitled “2011
Budget,” for example, the Finance Director sought and received confirmation
that the Police Chief and Court Clerk would prepare targets for the court’s fine
and fee collections for subsequent years. Court Staff take steps to sure those
targets are met in operating court. For example, in April 2011, the Court Clerk
wrote to Judge Brockmeyer (copying [the police chief]) that the fines the new
Prosecuting Attorney was recommending were not high enough. The Clerk
highlighted one case involving three Derelict Vehicle charges and a Failure to
Comply charge that resulted in $76 in fines, and noted this “normally would
have brought a fine of all three charges around $400.” After describing another
case that she believed warranted higher fines, the Clerk concluded: “We need to
keep up our revenue.” There is no indication that ability to pay or public safety
goals were considered.
Id. at 14 – 15.
7
Id.
8
Complaint at 6, U.S. v. Ferguson, (E.D. Mo. 2016)(No. 4:16-cv-00180).
9
Id.
10
Mariah Stewart, Stephanie Karr steps down as Ferguson’s attorney, ST. LOUIS AM.
(May 24, 2014), http://www.stlamerican.com/news/local_news/article_cf8a5544-21fd11e6-a536-03c101d5b28c.html.
11
Curtis, Heinz, Garrett & O’Keefe, http://www.chgolaw.net/attorneys/stephanie-ekarr-43 (last visited May 26, 2016). The cities are Calverton Park, Brentwood,
Edmundson, Hazelwood, Bellerive Acres, and Bel-Nor.
12
Curtis, Heinz, Garret & O’Keefe, News and Insights from CHGO,
http://www.chgolaw.net/news/chgo-attorney-stephanie-karr-wins-prestigious-award-77
(last visited July 26, 2016).
13
Id.

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size, hiring a full-time prosecutor or district attorney is often costprohibitive, if not impossible given scarce financial resources.14 In cities
like Ferguson (generally too small to justify hiring a full-time district
attorney) a prosecutor may be appointed to the post, often by a mayor or a
city counsel. Candidates for such outsourced prosecution positions15 are
often required to go through a competitive bidding process in which costsavings, fine generation, and outbidding competitors are prioritized over
other evaluative concerns, submitting a bid in response to a request for
proposal (“RFP”) issued by the jurisdiction in question.
The prosecutors hired pursuant to this method of outsourcing the
prosecutorial function have little in common with the popular cultural
conception of district attorneys and other criminal prosecutors in the United
States. In the popular imagination, a prosecutor is a practitioner who has
been elected to the position, who leads an office in an attempt to seek
justice on behalf of either “the People” or “the State.” Pop culture is rife
with such examples, ranging from the ADAs of Law and Order to the
bumbling yet consistently honest Hamilton Burger of Perry Mason, who
(with his extraordinarily bad record at trial) described his work as requiring
him merely to “do justice, and justice is served when a guilty man is
convicted and when an innocent man is not.”16
Outsourcing prosecution through RFPs also creates serious tensions
with the professional standards that bind prosecutors. The American Bar
Association has promulgated prosecution function standards “to be used as
a guide to professional conduct and performance.”17 Under these standards
the “duty of a prosecutor is to seek justice, not merely to convict.”18 It is
also incumbent upon the prosecutor to “seek reform and improve the
administration of criminal justice.”19 The Model Rules of Professional
Conduct, which have been adopted in whole or part by all 50 states20, also
14

Roger A. Fairfax, Jr., Delegation of the Criminal Prosecution Function to Private
Actors, 43 U.C. DAVIS L. REV. 411, 419 (2009).
15
See infra Section II.C.
16
Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be An
Associate Justice of the Supreme Court of the United States: Hearing before the S. Comm.
on the Judiciary, 111th Cong. (statement of Judge Sotomayor). Justice Sotomayor also
discussed her fondness and admiration for Hamilton Burger in her autobiography: “I liked
that he was a good loser, that he was more committed to finding the truth than to winning
his case.” SONIA SOTOMAYOR, MY BELOVED WORLD 80 (2013).
17
CRIMINAL JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION Standard 3-1.1
(AM. BAR. ASS’N 2015)(herein “ABA Prosecution Standards”).
18
Id. at Standard 3-1.2(c)
19
Id. at Standard 3-1.2(d)
20
Am. Bar Ass’n, Alphabetical List of States Adopting Model Rules,
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_
of_professional_conduct/alpha_list_state_adopting_model_rules.html (last visited July 31,

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bear upon the ethical obligations that are incumbent upon prosecutors. The
National District Attorneys Association has similarly promulgated its own
ethical standards for prosecutors, which are rather more detailed than those
from the ABA.
While it is instructive to examine the issues and conundrums raised
by relying on outsourced prosecutors through the lenses of formulaic rules
seen by many who practice law as the only minimal requirements necessary
to consider when reflecting on their own comportment, this Article
endeavors to hold our nation’s prosecutors, especially those local
prosecutors to whom very little scholarship has been devoted, to the higher
standards and norms that are popularly expected of them and that the needs
for public accountability and devotion to “seeking justice” demand. While
“[e]fficiency gains are the major reason that governments enter into
privatization agreements,”21 the use of outsourced prosecution services,
particularly those hired through an RFP/competitive bidding process is
dangerous, subjecting the hired prosecutors to much of the same political
pressure as elected officials while also generating unusual and outsized
pressures to prioritize budgets and fine/fee generation.
Even in the recent years during which criminal justice system
reform has been discussed by both political liberals and conservatives alike,
there is still a general belief that wrongfully prevails—that all prosecutors
are elected. A piece published by The Atlantic stated that “[i]n all but four
states, prosecutors are elected to office—about 2,400 of them[.]”22 In his
recent address to the Democratic National Convention, President Barack
Obama exhorted voters that if they “want more justice in the justice system,
then we’ve all got to vote—not just for a president, but for mayors, and
sheriff’s, and state’s attorneys, and state legislators. That’s where the
criminal law is made.”23 While boons to those who have long been
advocating for greater focus on local criminal justice system reform, both
statements exhibit a lack of knowledge regarding the criminal justice
system on a much more local level than that of federal or state government:
Not all prosecutors are elected at all.
This Article builds on the work of Professor Roger Fairfax, who has
previously studied the ills that arise from varying methods of outsourcing
2016).
21

Wendy Netter Epstein, Contract Theory and the Failures of Public-Private
Contracting, 34 CARDOZO L. REV. 2211, 2227-2228 (2013).
22
Juleyka Lantigua-Williams, Are Prosecutors the Key to Justice Reform?, THE ATL.
(May 18, 2016), http://www.theatlantic.com/politics/archive/2016/05/are-prosecutors-thekey-to-justice-reform/483252/.
23
President Barack Obama, Address to the Democratic National Convention (Jul. 27,
2016),
https://www.whitehouse.gov/the-press-office/2016/07/28/remarks-presidentdemocratic-national-convention.

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the prosecutor’s role to private actors, providing useful general overviews.24
This Article, however, focuses that analysis, examining and highlighting the
particular risks inherent in hiring prosecutors through RFPs. It identifies
the specific incentives, both personal and institutional, that arise in smaller,
often rural but also suburban and urban jurisdictions throughout the country
when prosecutors are procured by way of RFPs, which tend to focus the
prosecutor’s attention on efficiency and revenue generation, rather than
justice—a focus compounded by the relatively short-term nature of many
outsourcing contracts and the concomitant need for the prosecutor to
reapply (and demonstrate cost-effectiveness) on a regular basis.
The Article proceeds as follows: Part I examines the history of the
American prosecutor’s role by focusing on scope of work as well as
historical methods of compensation, demonstrating that the prosecutorial
norm of a full-time public servant paid on a salary basis arose for a number
of reasons. It also details the evolution of these norms from a pop cultural
perspective as well as that from the more formalized, yet mainly
aspirational, rules outlined in both American Bar Association and National
District Attorney Association Standards.
Part II describes the outsourcing of prosecution generally, with Part
II.A. examining the challenges that may force local governments to
outsource their criminal prosecutors. Part II.B. provides more background
on the concepts of outsourcing and privatization, while Part II.C. introduces
the RFP and competitive bidding process. Part II.D. analyzes the RFP
language from a small selection of local governments from around the
nation, highlighting language that creates greater pressure and incentives for
prosecutors not only to save costs but also to generate revenue.
Part III examines multiple incentives and disincentives both on the
part of an individual prosecutor as well as local government councils,
mayors, and executives to concern themselves with their bottom lines rather
than providing services focused on providing justice to the public. Part III
also demonstrates that prosecutorial outsourcing by way of RFP is
substantially different and uniquely problematic compared to procurement
for other services or goods, as doing so amounts to selling the concept of
“justice” to the lowest bidder. Part IV concludes.
I. THE AMERICAN PROSECUTOR’S EVOLVING ROLES
A. From Private Actor to Public Servant

24

Roger A. Fairfax, Jr., Outsourcing Criminal Prosecution?: The Limits of Criminal
Justice Privatization, 2010 U. CHI. LEGAL F. 265 (2010); and Delegation of the Criminal
Prosecution Function to Private Actors, supra note, at 14.

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While the usual norms characterizing a criminal prosecutor in the
United States encompass, most often, a full-time government attorney
elected directly by the people of a particular political subdivision, such a
norm is unique to the United States and is of recent invention. Criminal
prosecution processes in the colonies quickly came to diverge from those in
England, where victims themselves funded prosecutions, hiring their own
attorneys.25 Due to Dutch influence, public prosecutors with varying titles
such as “state’s attorney,” “district attorney,” “county attorney,” and
“attorney general” proliferated; thus, public prosecutors came to dominate
American criminal justice systems far ahead of any English counterparts.26
These prosecutorial positions were initially filled by appointment, as were
many other positions in state and local government, with great variance
from state to state as to who exercised this power of appointment.27
American criminal prosecutors were also not originally full-time
government employees, but usually took such positions to supplement
income from private practices or other business ventures.28 As such,
attorneys employed as public prosecutors were often “young, inexperienced
attorneys or older, generally incompetent ones.”29 Prosecutorial budgets in
the early republic were often anemic, resulting in complaints of overwork
for too little pay so very reminiscent of grievances from today’s government
employees.30 Talented, experienced criminal law attorneys, therefore, were
disincentivized from considering such work, choosing to work as either
defense counsel or private prosecutors hired by victims.31
Andrew Jackson’s assumption the presidency in 1829 began a
period of rampant political patronage and reward, also widely known today
as the “spoils system.” While rewarding loyal supporters with posts and
positions had certainly been done before, Jackson’s presidency ushered in a
period of American politics in which the system of political patronage
25

The
Crown
Prosecution
Service,
History,
http://webarchive.nationalarchives.gov.uk/20070205205701/http:/www.cps.gov.uk/about/h
istory.html (last visited June 16, 2016).
26
Robert M. Ireland, Privately Funded Prosecution of Crime in the NineteenthCentury United States, 39 AM. J. LEGAL HIST. 43, 43 (1995).
27
Michael J. Ellis, Note, The Origins of the Elected Prosecutor, 121 YALE L.J. 1528,
1530, 1537 (2012).
28
Id. at 1539.
29
Ireland, supra note 26, at 43.
30
Id. at 45.
31
“One of Kentucky’s more able prosecutors admitted in 1879 that in his district it was
‘almost impossible to get anyone to take office. . . .’ In the same year, a Kentucky federal
district judge remarked that ‘in almost every criminal trial in this state there is on the side
of the Government youth and inexperience. . . whilst on behalf of the accused is arrayed all
the learning . . . experience, and . . . talent.” Id. (citation omitted).

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reached a never-before seen zenith.32 An unprecedented number of public
offices were filled through this system of patronage, including prosecutors
and other government attorneys.33 In reaction to this system, a greater
public support for popular election of district attorneys and prosecutors took
hold; “electing prosecutors also allowed communities to maintain control
over the functions of local government.”34 By 1877, every state had
adopted the use of elected prosecutors at one level or the other, as would
every other state admitted to the Union thereon.35
Simply because every state adopted some form of the elected
prosecutor, either at the state attorney general level or district or county
attorney level, however, does not mean that all positions handling criminal
prosecutions were elected. Particularly in small, rural jurisdictions (cities,
towns, counties, etc.) that neither had the budget to pay a full-time criminal
prosecutor nor the population to make an election a practical option for
choosing a criminal prosecutor (as such jurisdictions would have been lucky
to have even one attorney living within their boundaries), alternatives to
public election have persisted. These mainly break down into three models
– 1) the part-time prosecutor model, under which attorneys are either
elected to serve on a part-time basis while being allowed to engage in either
a private law practice or other venture, or 2) the prosecution outsourcing
model (herein the “outsourcing model,” or “outsourcing), under which local
governments contract with law firms or individual attorneys for (usually
part-time) prosecutorial services for a term of years, and 3) victim retained
prosecution.36 Attorneys operating under an outsourcing model are often
selected after responding to posted requests for proposals (herein “RFPs”).
B. Prosecutorial Norms
The widely accepted norm that prosecutors should not be influenced
by concerns apart from serving the public’s interest arose in the United
States much earlier than in the United Kingdom. For example, in
Commonwealth v. Knapp, both the attorney-general and solicitor-general of
Massachusetts were working together to prosecute a murder.37 The
32

Susan Rose-Ackerman, Political Corruption and Democracy, 14 CONN. J. INT’L. L.
363, 376 (1999).
33
Bruce J. Winick, Harnessing the Power of the Bet: Wagering with the Government
as a Mechanism for Social and Individual Change, 45 U. MIAMI L. REV. 737, 787 (1991)
34
Ellis, supra note 27, at 1558.
35
Id. at 1568.
36
DAVID W. NEUBAUER & HENRY F. FRADELLA, AMERICA’S COURTS AND THE
CRIMINAL JUSTICE SYSTEM 154 (2016). Some states still allow for victims to hire and fund
their own prosecutors, which would present a third but uncommon model.
37
Commonwealth v. Knapp, 27 Mass 477, 490 (1830).

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attorney-general sought to have a private prosecutor appointed to the
prosecution team to assist in the case.38 On appeal, Knapp argued that,
pursuant to Massachusetts’s statute delineating the roles of prosecutors at
the time, that any privately compensated prosecutor should not have been
allowed to assist in the case.39 The Knapp court explained that
In cases where civil rights are in controversy and the form
of proceeding is by indictment or information, the Court
does not perceive any objection against permitting the party
in interest to employ counsel in aid of the law officers. The
same reasons would not apply to cases involving public
considerations only. In such cases the statute supposes that
the prosecution will be conducted by the law officers, for
their salaries, and without any other compensation
whatever . . . [T]his case presents the question, whether a
counsellor may, at the request of the attorney-general, be
admitted to aid him in the prosecution, without any
pecuniary consideration being paid to him, or any other
consideration which may be supposed to influence him,
excepting a disinterested regard for the public good.40
Here, the Knapp court made an important and early distinction between
cases in which there was a discernable “party of interest,” such as a victim,
versus cases that involved a larger injury to “the public good.”41
A multitude of other states addressed whether privately paid
prosecutors should be allowed to handle criminal actions on behalf of
whatever jurisdiction such attorneys purported to represent; many of these
cases were heard by state supreme courts through out the 1800s. For
example, the Michigan Supreme Court held that that appointment of an
38

Id. at 489.
Id. (Mass. St. 1807, c. 18, required county attorneys to act on behalf of the state
“provided, that the attorney-general, when present, and, in his absence, the solicitorgeneral, if present, shall, in any court, have the direction and control of prosecutions and
suits in behalf of the Commonwealth.” It also provided that “no attorney-general, solicitorgeneral or county-attorney shall receive and fee or reward from or in behalf of any
prosecutor, for services in any prosecution, to which it shall be his official duty to attend.”
(internal quotation marks omitted)). The appellant operated under the assumption that the
attorney that the Commonwealth sought to appoint was being privately compensation; the
attorney in question, however, explained that he was not working for any pecuniary
inducement at all.
40
Id. at 490-491.
41
The Knapp court held that the private prosecutor who assisted the attorney general
should have been allowed to do so as 1) he did so at the attorney-general’s request for the
murder case alone and 2) the private prosecutor was doing the work pro bono.
39

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additional prosecutor during the pendency of a forgery case was permissible,
given that this attorney “was not employed by any private party, that he had
no interest in the matter, that he was associated in business with the
prosecuting officer, and had attended the prosecution on behalf of the people
in the justice’s court.”42 Such cases present the early formation of a
normative standard that prosecutors were expected to meet—that they
should somehow be shielded from external or private interests and should
only concern themselves with the public good and with the fair
administration of justice.43
While accepting the mantle of such elevated ethical expectations
would initially appear to create additional burdens upon prosecutors,
prosecutors have used (or at least attempted to use) such higher standards to
their tactical advantage by variously implying their greater trustworthiness
in comparison to other actors in the criminal justice system, such as
defendants or defense attorneys, or arguing for troublingly expansive
roles.44 In oral argument for Miranda v. Arizona, Gary K. Nelson, assistant
Arizona attorney general, attempted to bolster the state’s argument (that
allowing for counsel at interrogations would unduly hamper investigative
efforts) by relying on the prosecutor’s perceived duty to do justice:
Our adversary system as such is not completely adversary
even at the trial state in a criminal prosecution because
Canon Five of the Canons of Ethics of the American Bar
Association which are law in Arizona by rule of court says
that the duty of the prosecution is not simply to go out and
42

People v. Foote, 93 Mich. 38, 39-40 (1892).
The prosecutor’s position was conceived as “. . . one involving a duty of impartiality
not altogether unlike that of the judge himself.” Meister v. People, 31 Mich. 99, 104
(1875). See also Berger v. United States, 295 U.S. 78, 88 (1935)(speaking in the context of
federal prosecutions):
43

The United States Attorney is the representative not of an ordinary party to a
controversy, but a sovereign whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt should not escape or innocence suffers. He
may prosecute with earnestness and vigor – indeed, he should do so. But while
he may strike hard blows, he is not at liberty to strike foul ones. It is as much
his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.
44

Professor Bruce Green noted a similar point in his article Why Should Prosecutors
“Seek Justice”? Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM
URB. L.J. 607, 614-615 (1999).

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convict but is to see that justice is done.
I know, I’ve talked to many prosecutors myself in my short
time, I’ve gotten as much satisfaction out of the cases when
I – which I was compelled to confess error in a case where
a man has been deprived of his rights by due process that
I’ve gotten satisfaction in being upheld in a tight case in
court.45
Prosecutors have also, for example, attempted to leverage high ethical
expectations when vouching improperly for themselves,46 witnesses,47 or
even a combination thereof.48 The heightened duty placed upon prosecutors
to do justice may function as an additional advantage the government can
wield against defendants, often paired with greater material resources as
well as the assistance of law enforcement.
Pop cultural representations of prosecutors are also illustrative of
prevailing prosecutorial norms both past and present (as well as other social
mores, customs, and beliefs).49 There still is, of course, a great deal of
45

Oral Argument at 55:37, Miranda v. Arizona, 384 U.S. 436 (1966) (No. 759),
https://www.oyez.org/cases/1965/759.
46
Prosecutors vouch improperly for themselves or witnesses when they “place[] the
prestige of [their] office behind the government’s case by, [for example], imparting [their]
personal belief in a witness’s veracity or implying that the jury should credit the
prosecution’s evidence simply because the government can be trusted.” U.S. v. PerezRuiz, 353 F.3d 1, 9 (1st Cir. 2003)(citing U.S. v. Figueroa-Encarnación, 343 F.3d 23, 28
(1st Cir. 2003). For an additional example of a prosecutor improperly vouching for
themselves, see, e.g., Shelton v. U.S., 983 A.2d 363, 373, note 22 (in which a prosecutor
attempted to bolster the government’s case by emphasizing the first prosecutor’s ethical
duties):
At another point the prosecutor asked:
Prosecutor: In fact, [the first prosecutor] told you that the last thing he wanted to do
was to have the wrong person in jail; isn’t that right?
[Witness]: He told me that but I didn’t believe him […]
47

See, e.g., Greenberg v. U.S., 280 F.2d 472, 475 (1st Cir. 1960)(“To permit counsel
to express his personal belief in the testimony (even if not phrased so as to suggest
knowledge of additional evidence not known to the jury), would afford him a privilege not
even accorded to witnesses under oath and subject to cross-examination. Worse, it creates
the false issue of the reliability and credibility of counsel. This is peculiarly unfortunate if
one of them has the advantage of official backing.”).
48
See, e.g., U.S. v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005)(quoting
statements made by the prosecutor at trial in which the prosecutor offered improper
statements at trial, vouching for himself and law enforcement by referring to the prestige
and veracity of the government).
49
MICHAEL ASIMOW & SHARON MADER, LAW AND POPULAR CULTURE 153-180

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debate as to what extent pop culture instigates change on its own, a question
which this Article will not attempt to address or answer but which cognitive
psychologists have addressed extensively through the formulation and
debate surrounding cultivation theory.50 In the first decades of the 1900s, as
prosecutors began to take on a more central and powerful role in the
criminal justice system,51 they also began to take on a greater pop cultural
role. In the 1930s, prosecutors joining police in the fight against organized
crime also boosted the prestige and visibility of the job throughout the
nation.52 This new spotlight helped inspire the proliferation of fictitious
prosecutor/district attorney roles in popular media.53 A fascinating example
of an early fictitious district attorney can be found by listening to the 1940s
radio drama Mr. District Attorney, which Professor David Ray Papke noted
was generally “free of complexity, and character motivation and the conflict
between lawbreakers and law enforcement are easy to understand.”54 Mr.
District Attorney, who otherwise was nameless for the majority of the
show’s many years on the air, was depicted as “honest, brave, and devoted
to his work.”55 The show’s opening lines, intoned by the show’s announcer
(known as the “Voice of the Law”) proclaimed that Mr. District Attorney
was the “[c]hampion of the people, defender of truth, guardian of our
fundamental rights – life, liberty, and the pursuit of happiness.”
Such opening lines may strike today’s listeners as simultaneously
quixotic, wooden, and misleading – they are not, however, much different
than those uttered in the opening scenes of every episode of the longestrunning crime drama in the United States, Law & Order: “In the criminal
justice system, the people are represented by two separate, yet equally
important groups: The police who investigate crime and the District
Attorneys who prosecute the offenders […]” The contrast between this
(2004).
50
Cultivation theory examines the interaction between media and society, specifically
operating as “‘a theory of media’s role in social control. This is, it examines how media
are used in social systems to build consensus…on positions through shared terms of
discourse and assumptions about priorities and values.’ . . . Crucially, cultivation theory
assumes that, since mass media is produced by cultural elites in a commercial system, ‘the
system works so as to benefit social elites.’” Cynthia D. Bond, “We, the Judges”: The
Legalized Subject and Narratives of Adjudication in Reality Television, 81 UMKC L. REV.
1, 16 (2012).
51
See, Allen Steinberg, The “Lawman” in New York: William Travers Jerome and the
Origins of the Modern District Attorney in Turn-of-the-Century New York, 34 U. TOL. R.
REV. 753 (2003).
52
Id. at 783 – 784.
53
David Ray Papke, Mr. District Attorney: The Prosecutor During the Golden Age of
Radio, 34 U. TOL. L. REV. 781, 782 (2003).
54
Id. at 788.
55
Id. at 790.

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public perception of prosecutors and the public perception of defense
attorneys is telling. While prosecutors hold a greater position of trust and
authority not only in pop culture but also their communities, defense
lawyers conversely “generally toil amid a culture of scorn” and “are often
perceived as amoral gunslingers who thrive on the thrill of beating the
system and defending the guilty.”56 Comparing state prosecutorial versus
indigent defense budgets also illustrates the extent to which the prosecution
function is prioritized over that of Gideon mandated indigent defense: in
2007 the total operating budget of state prosecutors’ offices throughout the
country was $5.8 billion,57 while states in 2012 only spent $2.3 billion on
public defense.58
There has been of late, however, a chipping-away, if not crisis, of
public confidence in the criminal justice system.59 Long-standing features
of American criminal law and justice, such as the death penalty, have been
reconsidered in the public consciousness.60 Confidence in prosecutors has
lately been shaken as well, with notable examples arising from the deaths of
Michael Brown in Ferguson and Eric Garner in Staten Island. In both cases
prosecutors sought indictments before grand juries against police officers
Darren Wilson and Daniel Pantaleo, respectively, and in both of these cases
the prosecutors failed. The burden of proof for obtaining a grand jury
indictment is the exceptionally low probable cause standard;61 the laxity of
this standard was perhaps most familiarly styled by Sol Wachtler in Tom
Wolfe’s The Bonfire of the Vanities: “[A] grand jury would ‘indict a ham
56

Rod
Smolla,
The
Best
Defense,
SLATE
(Nov.
2,
2005),
http://www.slate.com/articles/news_and_politics/jurisprudence/2005/11/the_best_defense.h
tml.
57
Steven W. Perry & Duren Banks, Prosecutors in State Courts, 2007 – Statistical
Tables,
Bureau
of
Justice
Statistics,
2
(2011),
http://www.bjs.gov/content/pub/pdf/psc07st.pdf.
The 2007 operating budget was a
decrease from the 2001 total of $6.1 billion (amounting to 5%).
58
Erinn Herberman & Tracy Kyckelhahn, State Government Indigent Defense
Expenditures, FY 2008-2012 – Updated, Bureau of Justice Statistics (2015),
http://www.bjs.gov/content/pub/pdf/sgide0812.pdf. I rely on the most recent statistics from
the Bureau of Justice Statistics for both figures on prosecutorial and defense spending.
Studies examining both rolls are not usually conducted nor release simultaneously nor
based on the same years, unfortunately.
59
As noted by Carolyn B. Ramsey back in 2002 and which is still the status quo,
“[e]mpirical scholarship on the relationship between public opinion and criminal justice
has not focused primarily on prosecutorial ethics.” Carolyn B. Ramsey, 39 AM. CRIM. L.
REV. 1309, 1319 (2002).
60
See Richard C. Dieter, , A Crisis in Confidence: Americans’ Doubts About the Death
Penalty, Death Penalty Info. Ctr. (2007), http://www.deathpenaltyinfo.org/CoC.pdf.
61
Kaley v. U.S., 134 S.Ct. 1090, 1103 (2014)(“Probable cause, we have often told
litigants, is not a high bar: It requires only the ‘kind of “fair probability” on which
‘reasonable and prudent [people], not legal technicians, act.’”)

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sandwich,’ if that’s what you wanted.” The inability to secure indictments
against Wilson and Pantaleo ignited weeks of civil unrest, with many
alternately doubting the competence or vigilance of the prosecutors
involved.62
While there has been a greater recent push toward bipartisan
criminal justice reform, much of that effort has been focused,
understandably, on the roles of law enforcement and defense counsel. One
can, at best, speculate as to the reasons for those emphases. Perhaps latent
acceptance of the prosecutorial norms thus far described has shielded the
prosecutorial role from the spotlight. Perhaps prosecutors are so aligned
with law enforcement in the public mind that efforts to reform police and
policing somehow feel like they address potential evils arising amongst
their prosecutorial counterparts. Moreover, any criticism of prosecutors,
both from the legal academy and other sources, largely falls on those
operating in the federal system; this disproportionate focus on federal
criminal prosecution is easily explained by the greater homogeneity of the
federal system, which renders it correspondingly more straightforward to
study, especially with tools of data collection and analysis.63 This Article
makes a unique contribution to prosecution focused scholarship by
departing from that usual federal focus and to concentrating on the
prosecutorial functions of those smaller jurisdictions such as counties and
municipalities that often go neglected by scholars and the wider, popular
62

See, e.g., Monica Davey & Julie Bosman, Protests Flare After Ferguson Police
Officer
Is
Not
Indicted,
N.Y.
TIMES
(Nov.
24,
2015),
http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-browngrand-jury.html; Travis Andersen et al., Thousands protest Eric Garner case in downtown
Boston,
BOSTON
GLOBE
(Dec.
4,
2014),
http://www.bostonglobe.com/metro/2014/12/04/protest-planned-christmas-tree-lightingcommon/875sx4ZA1JcHliKte9UyCJ/story.html; Brandt Williams, Protests shut down part
of
I-35W
for
over
an
hour,
MPR
NEWS
(Dec.
4,
2014),
http://www.mprnews.org/story/2014/12/04/protesters-close-i35w; Editorial Board, A Crisis
in
Confidence
in
Prosecutors,
N.Y.
Times
(Dec.
8,
2014),
http://www.nytimes.com/2014/12/09/opinion/a-crisis-of-confidence-inprosecutors.html?_r=0.
63
“The United States is a federal system, and both the federal government and the
states have the authority to define and punish criminal violations. This division of
responsibility permits significant difference between federal and state practice, and . . .
between and within individual states. This variability is enhanced by traditions concerning
the training and selection of both individual prosecutors and chief prosecutors. In general,
the U.S. systems promote some form of democratic accountability, and the fragmentation
of authority virtually guarantees that different offices will develop different priorities and
practices.” Sara Sun Beale, Prosecutorial Discretion in Three Systems: Balancing
Conflicting Goals and Providing Mechanisms for Control, in DISCRETIONARY CRIMINAL
JUSTICE IN A COMPARATIVE CONTEXT 27, 31 (Michele Caianiello & Jaqueline S. Hodgson
eds., 2015).

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media.
C. Governance of Prosecutors Under ABA and NDAA
Standards and ABA Model Rules
Both the federal government and every state in the nation has the
authority, to differing degrees, to prosecute criminal offenses generally
committed within their borders. Engaging in study of the criminal law on a
state level is, of course, often challenging given the great variance in laws
and policies between all the states. To some degree, however, there is great
unity in the promulgation of each state’s rules of professional conduct; each
state has, to some extent, adopted the American Bar Association’s Model
Rules of Professional Conduct (herein “Model Rules”), with Michigan,
West Virginia, California, Hawaii, and Georgia not making any changes
since their original adoption.64 The bar associations of each of the states,
with the exception of Wyoming, issue public ethics opinions in an effort to
educate attorneys about the proper application of their respective ethical
rules as well. The ABA has also promulgated its Criminal Justice Standards
for the Prosecution Function (herein “ABA Prosecution Standards”),
serving as a complement to the Model Rules and providing greater
specificity than the Rules regarding concerns unique to prosecutors.65 The
National District Attorneys Association has also circulated its own set of
National Prosecution Standards (herein “National Prosecution
Standards”).66 These National Standards “are much more comprehensive
64

Am. Bar Ass’n, States Making Amendments to the Model Rules of Professional
Conduct
Dates
of
Adoption,
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_
of_professional_conduct/chrono_list_state_adopting_model_rules.html (last visited June
12, 2016).
65
The ABA Prosecution Standards explain that:
[T]hese Standards are intended to provide guidance for the professional conduct and
performance of prosecutors. They are written and intended to be entirely consistent
with the ABA’s Model Rules of Professional Conduct, and are not intended to modify
a prosecutor’s obligations under applicable rules, statutes, or the constitute. They are
aspirational or describe ‘best practices,’ and are not intended to serve as the basis for
the imposition of professional discipline, to create substantive or procedural rights for
accused or convicted persons, to create a standard of care for civil liability, or to serve
as a predicate for a motion to suppress evidence or dismiss a charge.”
ABA Prosecution Standards, supra note 17, at Standard 3-1.1(b).
66
Similarly to the ABA Prosecution Standards, the National Standards were “intended
to supplement rather than replace the existing rules of ethical conduct that apply in a
jurisdiction.” NAT’L PROSECUTION STANDARDS (NAT’L DIST. ATT’YS ASS’N 2009)(herein
“NDAA Standards”).

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17

than the [Model Rules]” as well as the ABA Standards,67 likely due to the
National Standards being written “for prosecutors by prosecutors.”68 Both
sets of standards are similar in that they “are hortative in nature”69 and
begin by grounding themselves in an exhortation to prosecutors to “seek
justice,”70 whatever that may mean.
I.

Proposed organization of prosecution functions

Both sets of standards from the ABA and NDAA forthrightly
express an overwhelming preference for full-time attorneys of the sort that
follow traditional prosecutorial norms as described in Part I.B., above. The
ABA Prosecution Standards provide that
(a)

The prosecution function should be performed by a
lawyer who is
(i) a public official,
(ii) authorized to practice law in the jurisdiction,
and
(iii) subject to rules of attorney professional conduct
and discipline.71

A brief justification for limiting the preferred organization of the
prosecutorial function is also provided: “Prosecutors whose professional
obligations are devoted full-time and exclusively to the prosecution function
are preferable to part-time prosecutors who have other potentially
conflicting professional responsibilities.”72 The National Prosecution
Standards also encourage a full-time rather than part-time scheme in even
stronger terms than found in the ABA Prosecution Standards:
The chief prosecutor in a jurisdiction should be a full-time
position.
A full-time prosecutor, whether the chief
prosecutor or otherwise, should neither maintain nor profit
from a private legal practice. A chief prosecutor may serve
part-time in those jurisdictions that are unable or unwilling
to fund a full-time prosecutor, but while serving as a part67

Mitchell Stephens, Ignoring Justice: Prosecutorial Discretion and the Ethics of
Charging, 35 N. Ky. L. Rev. 53, 56 (2008).
68
NAT’L PROSECUTION STANDARDS, Background (NAT’L DIST. ATT’YS ASS’N, 1991).
69
See Stephens, supra note 67.
70
NDAA Standards, supra note 66, at Standard 1-1.1; ABA Prosecution Standards,
supra note 17, at Standard 3-1.2(b).
71
ABA Prosecution Standards, supra note 17, at Standard 3-2.1(a).
72
Id.

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time prosecutor may not engage professional conduct that
is inconsistent with the need for prosecutorial
independence.73
Both sets of standards explicitly warn against deviating from the
prosecutorial norm of full-time government employment and representation
for the very salient reason of avoiding the inevitable conflicts of interest that
will arise by both serving the government as well as serving private clients
while focusing on perceptions of propriety.74 Both sets of standards also,
however, envision circumstances under which hiring by jurisdictions of
part-time prosecutors is, unfortunately, an inevitability.
II. OUTSOURCING OF PROSECUTORIAL SERVICES
Part II introduces readers to the challenges faced by smaller
jurisdictions that render them unable to either hire a full-time city or county
prosecutor or have elections to fill such a position. It then goes on to give
an operational definition of “outsourcing” for purposes of this Article and to
73

NDAA Standards, supra note 66, at Standard 1-1.3.
The Commentary to the National Standards addresses the need for full-time
prosecutors, explaining that:
74

A full-time chief prosecutor confers many advantages on his or her jurisdiction.
Among other advantages, the prosecutor is not distracted by a private law practice; is
readily available for consultation with law enforcement officers; is more accountable
to society for his or her decisions and performance; and, is not vulnerable to the
various potential conflicts of interest that can plague a part-time prosecutor.
Despite those advantages, there are many part-time prosecutors in the United States.
This situation is generally created by the societal preference for local accountability
and control in locations where the sparse population, geographic size of the
jurisdiction, budget and caseload do not warrant that the position be approached as a
full-time one. The position of the standard is that the office be approached on a fulltime basis insofar as that is possible in any given jurisdiction.
Whether full-time or part-time, the position should be approached as a career and not
as a steppingstone or sideline. This means that the prosecutor is prepared to bring to
his public duties an orientation of primacy. No matter what other activities the
prosecutor is involved in, his public duties come first. Part-time prosecutors should not
represent persons in criminal matters in other jurisdictions. This is because of the
potential for conflicts with his or her duties as a prosecutor and because of the
perception that such representation would decrease his or her dedication to the
performance of prosecutorial functions.
Id. at Standard 1-1.6 cmt.

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19

describe the RFP competitive bidding process more fully. Subsequently,
this Part describes and analyzes prosecutorial RFPs issued from ten
different local governments throughout the United States, with particular
focus on language that would drive prosecution to become more profitmotivated as well as other relevant factors such as clauses regulating future
removal of the aspiring part-time prosecutor/RFP applicant.
The vast majority of scholarship addressing the criminal law occurs
at a federal or state level; small local governments such as cities, towns, or
counties in which municipal or justice courts, as well as their city
attorneys/prosecutors, mostly handle misdemeanors75 are rarely examined
by the media, let alone by legal scholars. Such a paucity in scholarship
presents a significant gap. David Carroll, executive director of the Sixth
Amendment Center in Boston, spoke to the importance of this neglect,
noting that “[m]isdemeanors matter. For most people, our nation’s
misdemeanor courts are the place of initial contact with our criminal justice
systems. Much of a citizenry’s confidence in the courts as a whole – their
faith in the state’s ability to dispense justice fairly and effectively – is
framed through these initial encounters.”76
The most recent (and possibly only widely available) national
survey of prosecutors in smaller jurisdictions was undertaken by the
Department of Justice’s Bureau of Justice Statistics (“BJS”), which released
its results in January 2003.77 While most popular media such as television
or movies depict prosecutors in large and gritty cities, about 23% of the
nation’s prosecutors’ offices has a chief prosecutor who was hired on a parttime basis.78 The median budget for offices with part-time prosecutors was
only $95,000.79 Nearly 9 in 10 of the nation’s prosecutors practice in an
office servicing populations of less than 250,000: This figure represents
40% of the nation’s population.80 The prosecutors’ offices in these smaller
75

Deviating from this trend and demonstrating the difficulty of being able to describe
local criminal justice systems by way of generalization, prosecutors who are hired to
represent counties, for example, may have the ability and need to prosecute more serious
felony offenses.
76
Sixth Amendment Center, The Right to Counsel in Utah: An Assessment of TrialLevel
Indigent
Defense
Services,
x
(2015),
http://sixthamendment.org/6ac/6AC_utahreport.pdf.
77
Carol J. DeFrances, State Court Prosecutors in Small Districts, 2001, Bureau of
Justice Statistics, 2 (2013), http://www.bjs.gov/content/pub/pdf/scpsd01.pdf. (“Even
though they constitute the majority of the prosecutors’ offices nationwide, little information
has been reported about prosecutors’ offices serving smaller districts with a population
under 250,000. The 2001 [National Survey of Prosecutors] provides the first opportunity
to comprehensively examine these offices.”)
78
Id. at 9.
79
Id.
80
Id. at 1.

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districts overwhelmingly have had difficulties hiring new attorneys given
their scanty budgets and inability to offer competitive salaries to new
attorneys, though one must wonder whether how serious this problem has
been of late, given the large numbers of unemployed and underemployed
law graduates.81 While this data is interesting and hints at the challenges
posed to prosecutors in small districts, including those where a city, county,
or other governmental subdivision is unable or unwilling to find a full-time
prosecutor, the BJS survey only covered, unfortunately, “all chief
prosecutors that tried felony cases in State courts of general jurisdiction.”82
Data regarding the operation of criminal justice systems on a more localized
level, including cities, towns, and counties, is desperately needed. While
the BJS survey was certainly extensive, receiving responses from most of
the 2,341 prosecutors’ offices that handled felonies, with myriad cities,
counties, towns, and other districts that have their own prosecutors, it is no
wonder that a widespread survey of such prosecutors has not yet been
accomplished.
A. Spatial Inequality, Dwindling Tax Bases, and Devolution
Additional challenges face small, rural jurisdictions that might be
inclined to hire a full-time prosecutor but for their isolation83 and poor tax84
bases; this Article would be remiss in not discussing these difficulties in
brief. There has recently been some desperately needed focus on access to
justice in rural and smaller communities in legal scholarship.85 Much of
81

Id. at 3.
Id. at 1.
83
“Rural places are often defined by their ‘relatively sparse populations and relative
isolation from urban areas,’ sometimes referred to as the ‘ecological component’ of
rurality.” Lisa R. Pruit & Bradley E. Showman, Law Stretched Thin: Access to Justice in
Rural America, 59 S.D. L. REV. 466, 486 (2014)(quoting Frank L. Farmer, The Definition
of “Rural.” in Encyclopedia of Rural America: The Land and the People 833 (Gary A.
Goreham ed., 2d ed. 2008)).
84
“[N]onmetropolitan county governments and small municipalities generally struggle
to provide all sorts of services and functions because of the inability to achieve economies
of scale, and because they typically depend on local sales or property taxes, which are less
robust than in urban locales.” Id. at 501 (citing Lisa R. Pruitt & Beth A. Colgan, Justice
Desserts: Spatial Inequality and Local Funding of Indigent Defense, 52 ARIZ. L. REV. 219,
242-46).
85
See, e.g., Pruitt & Colgan, supra note 84; Pruitt & Showman, supra note 83; Hillary
A. Wandler, Spreading Justice to Rural Montana: Rurality’s Impacts on Supply and
Demand for Legal Services in Montana, 76 MONT. L. REV. 225 (2015); Lisa R. Pruitt, J.
Cliff McKinney, II, & Bart Calhoun, Justice in the Hinterlands: Arkansas as a Case Study
of the Rural Lawyer Shortage and Evidence-Based Solutions to Alleviate It, 37 U. ARK.
LITTLE ROCK L. REV. 573 (2015).
82

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21

this scholarship, understandably, has focused on issues such as access to
attorneys (as well as access to justice, generally) to people living in smaller
jurisdictions, as well as examining access to more specific services, such as
abortion. In the context of criminal justice, this focus squarely and
understandably turns to public defense funding and availability; arguably
the Sixth Amendment right to counsel is the most important of rights
afforded to a criminal defendant as it would be an especial challenge to
assert any other rights without an attorney’s assistance.
Greater scrutiny, however, should fall upon the prosecutorial
systems of local governments, particularly smaller counties, cities, and
towns. In a recent survey conducted in 2007, “eight-seven percent of local
government respondents stated that their primary reason for choosing
privatization” of a variety of services was “an attempt[] to decrease cost.”86
Many of the same factors germane in examining access to justice or public
defense in such jurisdictions are also important when considering the
prosecutorial side of criminal adjudication. These include lack of personal
wealth due to a paucity of development and other economic opportunities,
thereby limiting potential tax revenues, especially when “many states
underfund municipal and county governments . . .”87
86

Epstein, supra note 21, at 2236 (quoting Sam Dolnick, At Penal Unit, A Volatile Mix
Fuels a Murder, N.Y. Times, June 18, 2012, at A1).
87
“In short, nonmetropolitan local governments often have smaller budgets with which
to serve needier populations.” Pruitt & Colgan, supra note 83, at 228 – 229.
Nonmetro communities have also, generally, suffered from higher rates of poverty
than metro communities. The federal Office of Management and Budget (OMB) has
defined metropolitan (metro) communities as “broad labor-market areas that include: 1.
Central counties with one or more urbanized areas; urbanized areas are densely-settled
urban entities with 50,000 or more people. 2. Outlying counties that are economically tied
to the core counties as measured by labor-force community. Outlying counties are
included if 25 percent of workers living in the county commute to the central counties, or if
25 percent of the employment in the county consists of workers coming out of the central
counties – the so-called “reverse” commuting pattern.” U.S. Dep’t of Agric. Econ.
Research
Serv.,
Rural
Classifications:
What
is
Rural?,
USDA,
http://www.ers.usda.gov/topics/rural-economy-population/rural-classifications/what-isrural.aspx (last visited July 14, 2016).
There has been a higher incidence of nonmetro poverty versus metro poverty since
official poverty rates were kelp in the 1960. In nonmetro communities compared to metro
areas, this rate was 4.5 percent higher in the 1980s, 2.6 percent higher in the 1990s, and 2.7
percent higher from 2000 to 2009. In 2010, this gap reached its second narrowest since
such data was recorded at a 1.8 percent difference, with the uneven recovery following the
recession of 2007 – 2009 being accepted as the cause of this narrowing. “For purposes of
producing subnational and subpopulation poverty estimates” use of the American
Community Survey, with its dramatically larger sample size than required by the CPS, is
encouraged by the Census Bureau. Poverty rates for the most recently available year
(2014) were 18.1 percent nonmetro and 15.1 percent metro, perhaps reflecting the same
sort of trends that were observed before the Great Recession. U.S. Dep’t of Agric. Econ.

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An additional challenge facing local governments and prompting
greater outsourcing of their services88 generally is the trend toward
devolution of government obligations and responsibilities.89 Devolution of
responsibilities from state to local government has, especially in recent
decades, been championed as a prospective measure to increase efficiency
and allow for public policy decisions more customizable to such local
governments and the populaces that they serve in a variety of industries and
contexts.90 Devolution, however, has not always been the panacea that it
has been made out to be. Foisting responsibilities upon local governments
has raised concerns that not only would a lack of funds present challenges,
but that the “technical, and civic capacity of many communities can pose a
serious problem for meeting local needs,”91 including the need for
prosecutors who seek justice.
B. Defining “Outsourcing” and “Privatization”
There are, of course different manners in which local governments
and small political subdivisions, such as counties, cities, and towns, may
provide essential services to their citizens and residents in manners that may
not be entirely surprising to those being served. These would include any
number of governmental functions, such as utility services, park
maintenance, and waste management. Though the prosecutorial norm of a
full-time public servant has taken a strong hold in the public consciousness
Research Serv., Rural Poverty and Well-Being: Poverty Overview, USDA,
http://www.ers.usda.gov/topics/rural-economy-population/rural-poverty-wellbeing/poverty-overview.aspx (last visited July 14, 2016). These data were based on the
Current Population Survey (CPS).
88
“Over a quarter of local government services are now provided to some degree by
private entities.” Epstein, supra note 21, at 2213.
89
Patricia M. Wald, Looking Forward to the Next Millennium: Social Preview to
Legal Change, 70 TEMP. L. REV. 1085, 1098 (1997).
90
These issues are wide ranging, from greater local control of transportation, school
choice, and, especially in the western United States, greater control of lands that are
currently federally controlled.
Greater federal control over functions such as social welfare was asserted with the
Great Depression and advanced throughout the 1960s. A greater move toward devolution
and local control, however, began under the Nixon administration, partly in response to
growing concern over a large, centralized federal government, a cultural preference for
greater local control, and increased difficulties local, state, and national governments
experienced while trying to cooperate together to tackle the issues of the day. See Jeffrey
S. Sharp & Domenico M. Parisi, Devolution: Who is Responsible for Rural America?, in
CHALLENGES FOR RURAL AMERICA IN THE TWENTY-FIRST CENTURY 353, 354 - 356 (David
L. Brown & Louis E. Swanson eds., 2003).
91
Id. at 353.

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and accounts for the majority of prosecutors in larger jurisdictions92 as
discussed above in Part I.B., many smaller jurisdictions for reasons that will
be discussed below prefer to privatize, to one extent or another, their
prosecution functions.93 Such arrangements may take myriad forms, of
course, but can be roughly categorized as consisting of 1) contracting out
for prosecution services, 2) hiring on part-time prosecutors, or 3) utilizing
private prosecutors who are funded exclusively by victims.94 This piece
focuses exclusively on those cities, counties, and other political
subdivisions below the state level that rely on “contracting out” for
prosecutorial services by way of a competitive bidding process.
This specific form of outsourcing, however, does not consist of
“complete privatization”95 so much as “partial privatization,” under which
the government retains the responsibility to prosecute crime but “contracts
with a private actor to perform it.”96 While maintaining an increased level
of (hyper)local control could make utilizing a contracting-out model more
appealing to certain communities than relying on a corresponding state
agency, for the vast majority of jurisdictions contracting out, the major
concerns are budgetary. As explained by Professor Fairfax:
Jurisdictions with relatively small populations may not
have the tax base to support a public prosecutor. In
addition, the crime rate in a sparsely populated community
may not justify the expenditure for a traditional full-time
public prosecutor.
Furthermore, privatizing criminal
prosecution in these jurisdictions can increase criminal
prosecution capacity, which, in turn, might enhance
92

Fairfax, supra note 14, at 416 (quoting Patrick Halligan, A Political Economy of
Prosecutorial Discretion, 5 AM. J. CRIM. L. 2, 3-4 (1977))(“Prosecutors are generally
perceived as “[f]ull time government servants who are bureaucratically organized and paid
according to a fixed salary schedule from appropriated funds [to] prosecute crimes.”)
93
Fairfax, supra note 24, at 267. (“Government engages in a substantial amount of
privatization. Privatization is a word with many different meanings, but it typically is used
to characterize the phenomenon in which government delegates to the private sector
functions formerly performed by the state and deemed to be public.”)
94
This Article does not venture to examine closely victim-funded prosecution given its
relative rarity. While more common in the eighteenth and nineteenth centuries, the
proliferation of “public order” types of crimes in the nineteenth century led to decreased
numbers of victim-funded prosecutors and to the growth of more professionalized
prosecution services hired by governments. STEPHANOS BIBAS, THE MACHINERY OF
CRIMINAL JUSTICE 16 (2012).
95
BRUCE L. BENSON, TO SERVE AND PROTECT: PRIVATIZATION AND COMMUNITY IN
CRIMINAL JUSTICE 15 (NYU 1998)(explaining that “complete privatization” would consist
of exclusive private sector control over resource allocation.)
96
Fairfax, supra note 24, at 268.

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efficiency, public safety, and fairness by speeding criminal
case processing, reducing crime, saving court
administration costs, and diminishing the human and
financial costs of pretrial detention.97
Jurisdictions using a contracting out model are usually limited in
their options, as noted by Professor Fairfax. The extreme budgetary limits
and shortfalls seen in smaller and/or rural jurisdictions, however, have also
begun to manifest themselves in larger jurisdictions, as well. To effectively
engage in taking on the greater responsibilities and decentralization
essential to greater local control and devolution, local governments require
sufficient funding and administrative capacities. Democratic governance
and free markets are indelibly linked in American consciousness and
culture; “private providers are assumed to be more efficient and innovative
than government because they operate in competitive markets.”98 Such
privatization, however, can lead to greater disparities between wealthier
local governments versus economically depressed ones, and smaller local
governments versus larger ones; approaching privatization on unequal
footing will often lead to unequal results.99 While there has, justifiably,
been much scholarship and media coverage focusing on public defense
budgets and funding, prosecutors’ offices have likewise had to find ways to
cut costs and manage in a more restrictive financial landscape.100 With the
challenge of poor economic conditions for local governments spreading to
larger cities, the outsourcing of the criminal prosecution function may,
unfortunately, continue to spread in a deleterious way and be employed in
shortsighted attempts to boost economic efficiencies while ignoring the
long-term risks and damage.
97

Id. at 282.
Mildred E. Warner, Competition, Cooperation, and Local Governance, in
CHALLENGES FOR RURAL AMERICA IN THE TWENTY-FIRST CENTURY 252, 253 (David L.
Brown & Louis E. Swanson, eds. 2003)(citing Emanuel S. Savas, PRIVATIZATION AND
PUBLIC-PRIVATE PARTNERSHIPS (2000).
99
Id. at 252.
100
See, e.g., Lawrence Specker, Mobile County DA cuts staff, blames funding crunch,
AL.COM
(Apr.
14,
2016),
http://www.al.com/news/mobile/index.ssf/2016/04/mobile_county_da_cuts_staff_bl.html;
Greg Land, Fulton County District Attorney and Public Defender Say Budget Cuts Force
Furloughs,
DAILY
REPT.
(Mar.
16,
2016),
http://www.dailyreportonline.com/id=1202752402986/Fulton-County-District-Attorneyand-Public-Defender-Say-Budget-Cuts-Force-Furloughs; Kimberly Jackson, State budget
cuts impact public safety, KTUL.COM (Jan. 20, 2016), http://ktul.com/news/local/statebudget-cuts-impact-public-safety; Madelyn Beck, Ketchikan DA’s office feeling budget
cuts, KRBD FM (Aug. 25, 2015), http://www.krbd.org/2015/08/25/ketchikan-das-officefeeling-budget-cuts/.
98

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PROFIT-DRIVEN PROSECUTION

25

The Competitive Bidding/RFP Process

While it is next to impossible to discuss every procurement process
for every local government throughout the United States within the expanse
of one law review article,101 there are steps and requirements that, generally,
every jurisdiction strongly encourages if not mandates when hiring for
services. Competitive bidding is intended to make hiring processes
transparent and fair for applicants and to keep costs to local government
low while still attracting the most qualified candidates. However, both state
and local governments will “often require proof of cost savings prior to
permitting” services or goods to be procured through the RFP/bidding
process, as well as through other privatization methods.102
Local
governments commonly enjoy much discretion and flexibility in
determining their own procurement processes;103 such processes are usually
more onerous for more important positions that need filling or tasks that
need to be accomplished. The formality of the procurement process
employed may also depend on the approximated value of the contract, with
the most rigorous process being competitive bidding.
To initiate the competitive bidding process a local government will
draft a document known widely as a Request for Proposal. Commonly,
public notice statutes require the publication of a legal notice, usually in a
major (for the respective jurisdiction and readership) daily newspaper
announcing the solicitation of RFPs. The RFP is much more than the usual
job vacancy announcement or help wanted sign; it usually consists of a
public invitation to submit a proposal to provide a service that an agency
has identified is needed. The issuer of the RFP is, theoretically, then able to
best judge each proponent’s experience, qualifications, and approach in
evaluating who would best be best equipped to provided the needed service
with the greatest value. RFPs will often include or ask for the following: 1)
a statement of what services are needed, 2) a schedule for the project or the
term of years for which the service is being solicited, 3) qualifications
101

This task would require a great deal of data collection and synthesis, along with
publishing that data into what one must speculate would be a rather unwieldy tome.
102
Applicants may even be required to demonstrate that they can provide the goods or
service more cheaply than the local government itself could. Epstein, supra note 21, at
2237.
103
There are occasions, however, in which a specific project or position is
underwritten partly or wholly by separate grant funding. Oftentimes such grants may
require their own prescribed procurement requirements that will necessarily limit how a
local government makes its decision. See, e.g., U.S. Dep’t of Justice, Violence Against
Women Grant Programs, at https://www.justice.gov/ovw/grantees#s1 (last visited May 1,
2016).

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needed and evaluation criteria, and 4) a request for a budget, including
salary, supplies, assistants, and any other costs that may be envisioned
while serving as prosecutor. While this often-convoluted process is meant
to allow local governments to best determine each applicant’s experience,
qualifications, and other merits, contracts are generally awarded to the
lowest bidder, with other factors often playing at best, a secondary role in
the decision.
D. Samples of Prosecutorial Outsourcing RFPs Throughout the
United States
While this Article has thus far attempted to describe the competitive
bidding process and the RFP, one needs to, at the least, familiarize oneself
with examples of RFP language to understand the conflicts such
solicitations by local governments pose along with the often perverse
economic incentives to depart from the prosecutorial norm of “doing
justice.”
1. Green River, Wyoming
The City of Green River recently released an RFP for a city
prosecutor; proposals were due on February 16, 2015 for a term to run
through January 31, 2019, subject to early termination if needed.104 The
duties assigned to the city prosecutor consisted, in broad terms, of enforcing
city ordinances in the Green River Municipal Court.105 The qualifications
sought were exceptionally minimal, consisting of 1) a Juris Doctorate, 2)
membership in the Wyoming State Bar, and 3) a license to practice in state
and federal court; the third factor effectively duplicated the second.106
Applicants were required to “detail the compensation requested to perform”
the duties described, with potential compensation packages to be arranged
in one of three ways: 1) a monthly retainer as well as an hourly rate for
services that went beyond the usual monthly scope, 2) an annual salary
including city health insurance, and 3) an annual salary excluding health
benefits.107 The city explained that review “of all proposals will include,
but is not limited to, overall cost to the City[…]”108 While language
regarding the importance of overall cost certainly encourages attorneys to
104

City of Green River, City Prosecutor Request for Proposal 1 (2015)(on file with
author).
105
Id.
106
Id. at 2.
107
Id. at 3.
108
Id. at 3.

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underbid each other as much as possible, it also impliedly encourages a
profit-driven approach; an applicant may be successful in having their
contracts continuously renewed if they generated enough in the way of fines
and fees to counteract the cost of their contract.
2. Lakeville, Minnesota
Lakeville released an RFP seeking to fill two vacancies – one for a
city attorney and another for a prosecutor. The RFP submittal deadline was
April 8, 2016, with final approval to have taken place on June 6, 2016.109
The city prosecutor’s duties consist, mainly, of prosecuting misdemeanors
in Lakeville’s municipal court.110 In addition to describing prior experience
and explaining how the applicant planned to make themselves “readily
accessible to City personnel, especially police officers,” applicants were
required to provide “a detailed description and explanation of all fees and/or
charges that may arise for provided prosecution and related legal
services.”111 This explanation was not to be limited only to the attorney’s
services, but for proposed staff, as well.112 When evaluating proposals the
city made it clear that it intended to “award a contract to the proposer(s)
evaluated to be best qualified to perform the work for the City, cost and
other factors considered.”113 While the city anticipated hiring a prosecutor
for a minimum of three years, a new contract was required each year with
expected annual renewals and either party could terminate the relationship
with 90 days notice.114 The constant threat of removal outlines in the RFP
places a great deal of pressure on any applicants to do exactly that the city
would want.
3. River Falls, Wisconsin
River Falls released its RFP for a municipal prosecutor on March 6,
2015. The duties of the municipal prosecutor were limited to prosecuting
city-issued citations in the River Falls municipal court.115 The municipal
prosecutor was also responsible for handling appeals from the municipal to

109

City of Lakeville, Legal Services Request for Proposals 2 (2016)(on file with
author).
110
Id. at 6.
111
Id. at 7.
112
Id.
113
Id.
114
Id. at 8.
115
City of River Falls, Request for Proposal, Municipal Prosecutor 5 (2015)(on file
with author).

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county level circuit court.116 While the required personal qualifications of
applicants were relatively minimal (i.e., references, descriptions of training
and experience), the RFP requested a “methodology for how the individual
or firm will bill the City for its services,” with the city entertaining only
“hourly or flat fee approach[es].”117 Applicants were to include the costs of
all support staff and other overhead expenses.118 Oddly enough, proposals
were to first be evaluated by the municipal judge in whose court the new
prosecutor would appear, as well as city staff.119
The judge’s
120
recommendation was to then be forwarded to the city counsel.
It was the
city’s priority to select the attorney or law firm that would provide “the best
value,” specifically considering physical availability, prior experience, and
“the proposed price.”121 The city wished to enter into a two-year contract,
with either party able to cancel with 90 days notice.122 Once again, a
successful applicant would be placed in a precarious situation with the city,
with removal from the position by way of cancellation of the contract
relatively easy.
4. Dodge City, Kansas
Dodge City issued an RFP with proposals due on October 17, 2014
for a position that began on January 2015.123 The municipal prosecutor’s
duties were, again, limited to handling misdemeanors and traffic offenses
before the municipal court.124 This particular RFP was remarkably scanty
in detail, with no provisions regarding evaluation of submitted proposals,
length of potential contracts, nor termination or cancellation of the contract.
Apart from asking for a “brief firm or individual history” as well as a brief
description of “experience . . . relative to the proposal,” the RFP was
entirely concerned with fee structures. The RFP asks that proposals “must
clearly set forth the fees or fee structure (e.g., hourly rate, monthly retainer,
per-case fee) to be charged for the . . . scope of services.”125 The city stated
that it preferred paying on a monthly retainer basis.126 Dodge City’s
116

Id.
Id. at 6.
118
Id.
119
Id. at 9.
120
Id.
121
Id. at 9 -10.
122
Id. at 3.
123
Dodge City, Request for Proposal for Municipal Prosecutor 1 (2014)(on file with
author).
124
Id.
125
Id. at 2.
126
Id.
117

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requirements were lax to the point of stating that the city would continue to
read and consider late proposals submitted after their due date.127
5. Ephraim City, Utah
Ephraim City recently solicited proposals by way of RFP; proposals
were due on February 27, 2015 with the position to start on July 1, 2015.128
Ephraim is an especially small city with a population of 6,431 and, as such,
has combined the duties of civil city attorney with city prosecutor into one
position.129 The proposed contract was specified to run for two years, with
the potential to extend at its conclusion for an additional two years.130
Along with providing city attorney services,131 the applicant hired would be
tasked with prosecuting misdemeanors arising in Ephraim.132 While more
rigorous screening is prescribed by this RFP, including a minimum
requirement of five years of legal experience and knowledge and experience
in municipal law, this RFP also requires the most detailed fee proposal of
all the RFPs examined in this piece thus far. Applicants were required to
provide an hourly or monthly retainer rate (unsurprisingly Ephraim City
preferred a retainer rate “in an effort to manage costs effectively”), as well
as account for all extra potential costs, including providing estimates for
“minimum increments of time billed for each service including phone calls,
correspondence and personal conferences” as well as reimbursable expenses
“including travel (per mile), telephone, printing, photocopying, etc.,”133
providing a chilling effect for those who might have asked for greater
resources when the need arose to do prosecutorial job well. Perhaps the
most troubling aspect of this RFP are its provisions for removal: any
contract a successful applicant and the city would agree upon was required
to specify that the attorney serves as “an independent contractor serving at
the will of the City Council,” and that it was the city’s “right to terminate
the agreement, at its sole discretion, upon the provision of notice.”134 An
attorney could be, practically speaking, fired at any time, for any reason,
127

Id. at 3.
Ephraim City, Requests for Proposals for Legal Services – Civil and Criminal 1
(2015)(on file with author).
129
Id. at 3.
130
Id. at 4.
131
These include tasks such as attending city council meetings, drafting ordinances,
and reviewing all contracts entered into by the city (including, presumably, those for
outsourced public defense work).
132
Id.
133
Id. at 6.
134
Id. at 7.
128

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with no such reciprocal right offered to cancel the contract.
6. Chino Valley, Arizona
Chino Valley released an RFP in search of town prosecutor services
on May 12, 2016, with proposals due June 8, 2016.135 Chino Valley is
located in Yavapai County, Arizona and as of the 2010 census, has an
estimated 2015 population of 10,817.136 Chino Valley was searching for
either law firms or attorneys to provide criminal prosecution services for the
town, including pre-trial adjudication, motion practice, and trials. Chino
Valley estimated in the RFP that the provision of these services would
average to 10 hours per week.137 The two required qualifications of an
applicant were minimal – admission and licensure with the State Bar of
Arizona and a minimum of two years of experience. Proposal requirements
were, similarly, minimal, and were comprised of the qualifications and
experience of the proposer, hours of availability, and a proposed annual
fee.”138 No terms with regard to removal or cancellation of a contract were
provided by Chino Valley’s RFP.139
7. Hortonville, Wisconsin
The village of Hortonville is located on the shores of Black Otter
Lake in Outagamie County, Wisconsin. Hortonville’s population estimate
for 2015 was 2,712.140 The submitted due date for any proposals was due
on September 30, 2014.141 The winner of the bid was expected to
“represent the Village in prosecuting violations of state law” and the
applicable municipal code.142 The village was seeking to contract with a
law firm or attorney for two years; no provisions for removal were
provided.143 Hortonville’s police department issued, an average, 70 to 75
135

Town of Chino Valley, Arizona, Request for Proposals for Town Prosecutor
Services 1 (2016)(on file with author).
136
U.S.
Census
Bureau,
American
FactFinder:
Community
Facts,
http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited July
14, 2016).
137
Chino Valley RFP, supra note 111, at 1.
138
Id.
139
Id.
140
U.S. Census Bureau, American Fact Finder: Community Facts,
http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml# (last visited July
14, 2016).
141
Village of Hortonville, Request for Proposal 1 (2014)(on file with author).
142
Id.
143
Id.

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citations a month.144
Hortonville’s RFP is an aberration amongst the RFPs examined in
this Article. An entire section of the RFP was dedicated to a section entitled
“Prosecution Philosophy,” which expounded upon the duties of the
successful candidate – “[t]he Prosecutor’s decisions and dispositions of
cases need to be consistent with community concerns about maintaining and
improving a positive image of the Village, in addition to promoting peace
and order.”145 At no point, however, is serving the interests of “justice” in
any of its incarnations mentioned—the exclusive focus of the “philosophy”
outlined in the RFP is a strong, nearly singular emphasis on being
cooperative with the police, even to the point of being required to be
available on all nights and weekends to the them.146
Hortonville’s RFP was also unusual in that it required all submitted
bids to propose a hourly rate by which the prosecutor would be
compensated.147 There were also other requirements for the proposal that
were not evident in the other prosecutorial RFPs covered in this paper such
as providing an explanation of service delivery and philosophical approach
to prosecution, as well as a list of references.148 Also odd was the
narrowing of candidates through a screening by not only the current village
attorney, but also the village administrator, village judge, and village chief
of police.149 Nothing in the RFP discusses the possibility of removal prior
to the expiration of the proposed two-year contract.150
Hortonville’s RFP is troubling, even though it may seem more
comprehensive in its requirements than any of the RFPs reviewed in this
Article. The strong emphasis on communication and collaboration with the
police, and the narrowing of proposals by the chief of police as well as the
municipal judge presents a host of problems, including a lack of autonomy
from the police department rather than any focus upon doing “justice,” as
well as a collapse in the separation of powers by having the municipal judge
before whom the new prosecutor would appear participating in any aspect
144

Id.
Id. at 2 – 3.
146
“The Prosecutor should have regular and ongoing contact with police officers to
communicate charging and filing standards and update officers of the most recent case law
and important changes in law. The Prosecutor must be reasonably available for night and
weekend (24/7) contact by Hortonville Police Department personnel.” Id. at 3. The irony
seems lost on the drafter of the RFP that many, if not perhaps most attorneys, would
consider being available “24/7,” including weekends for a part-time job would be
considered per se an unreasonable request.
147
Id at 3.
148
Id. at 4.
149
Id. at 5.
150
Id.
145

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of the hiring decision making.
8. Elkins, West Virginia
The city of Elkins is situated in and the county seat of Randolph
County, West Virginia, with an estimated 2015 population of 7,226.151
Elkins issued an RFP searching for a new prosecutor on February 19,
2014.152 This RFP amounts to only a one page document, describing the
scope of work including “Municipal Court hearings, jury trials, and other
actions against misdemeanor criminal offenders. Desired services include
reviewing cases, preparing warrants, interviewing witnesses, leading
prosecutions, scheduling subpoenas, and collaborating with police
officers.”153 While the RFP specifies that contracts would be renewable
annually, it provides no details regarding review nor removal.154 Proposals
were required to address qualifications, expertise, staffing, prior experience,
professional references, and desired pay.155 The city very explicitly stated
what its primary consideration was in reviewing proposals, with its goal
being to “select the firm whose proposal is the most advantageous to the
City of Elkins.” Again, rather than focusing on a prosecutor’s ability to
seek justice, however that may be defined, or a prosecutor’s philosophies
regarding how the prosecution function should be provided, the city of
Elkins prioritized its own interests mainly grounded in notions of efficiency
and cost-reduction.
9. Township of Bedminster, New Jersey
Bedminster is located in Somerset County in central New Jersey. Its
estimated 2015 population is 8,241.156 Unlike some of the other
communities described thus far in this section, Bedminster is rather well-todo, with median household income amounting to $93,103 and median
family income at $124,057.157 The proposal submission deadline was
151

U.S. Census Bureau, American Fact Finder – Community Facts,
http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited June
28, 2016).
152
City of Elkins, West Virginia, Requests for Proposals for Legal Services
(Prosecutor) 1 (2014)(on file with author).
153
Id.
154
Id.
155
Id.
156
U.S.
Census
Bureau,
American
Fact
Finder
–
Results,
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk
(last accessed July 16, 2016).
157
These figures are based on the American Community Survey, discussed in supra

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November 4, 2015 for a contract term running from January 1, 2016 to
December 31, 2016.158 The entirety of the RFP packet itself was rather
voluminous at 26 pages; however, the great bulk of these pages are devoted
to forms such as stockholder disclosure certifications, political contribution
disclosure forms, business entity disclosure certifications, and mandatory
equal employment opportunity language as required under New Jersey law,
among other things.
Factors for evaluating proposals began with clarifying the primary
bases for awarding a contract, “the most advantageous, price, and other
factors . . .”159 Some of these factors seem as though they should be givens
for performing that job even at minimal levels, such as physical availability
of the applicant for meetings or knowledge of the “administrative structure
of the Township of Bedminster.” The factors, apart from cost the content of
a proposed compensation schedule, amount to being able to be physically
present whenever a town prosecutor should be.
Bedminster’s RFP provided very explicit terms regarding
termination of the contract, including default (non-performance with
termination upon 30 days written notice from the township, but only after
giving an applicant an opportunity to remedy the problem), unconditional
termination for convenience (for any reason with 60 days notice), and
termination by the township for other causes such as persistently
disregarding laws and ordinances (with 15 days of written notice and a 7
calendar day period to cure deficiencies).160 This RFP, like several of the
others examined thus far, leave applicant attorneys in potential vulnerable
positions of they do not satisfy the head of their local government.
10. Kyle, Texas
The city of Kyle is located in Hays County and only 20 miles south
of Austin and 50 miles northeast of San Antonio. Located on the 35
Freeway, Kyle cannot be characterized in any respect as being
geographically isolated or rural so much as a suburb of Austin. Kyle,
however, is presented here as an example of the RFP process for choosing a
criminal prosecutor spreading outside of the rural localities in which the
practice is usually found.
note 67.
U.S. Census Bureau, American Fact Finder – Results,
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk
(last accessed July 16, 2016).
158
Township of Bedminster, Request for Proposal of Professional Services 1
(2015)(on file with author).
159
Id. at 12.
160
Id. at 5.

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Kyle was founded in 1881 at its respective site along the
International-Great Northern Railroad line. Since 2000, Kyle’s population
has grown dramatically, from 5,314 in 2000 to 28,016 in 2010 and an
estimated 35,733 in 2015, reflecting the rapid growth happening throughout
many Texas cities.161 Such massive growth in formerly small, rural towns
and cities often left such local governments in difficult positions in which
they would not possess the authority to enact policy to handle such changes.
Texas cities can generally be sorted into two categories – general
rule and home law. General law cities are very restricted in the powers they
are able to exert, being limited only to those granted under state law in
either an express or implied fashion. If a city wishes to take on a task or
duty that the state has not bestowed upon a general law city, such a city
would be prohibited from doing so. In contrast, home rule cities in Texas,
limited only to those cities with a population of over 5,000, enjoy
dramatically greater powers and authority by adopting and enacting their
own home rule charters.162 Kyle, understandably, adopted a home rule
charter in 2000, granting them greater authority to control most aspects of
their local government, including appointment and removal of “the city
attorney, the municipal judge, and the associate municipal judges[.]”163 The
charter itself does set out some standards with regard to qualifications to be
city attorney (licensed in Texas with five years of experience), but provides
no other evaluative factors for the appointment of a prosecutor nor for an
RFP procurement process.164
Kyle recently issued an RFP seeking proposals by May 23, 2016 for
a prosecutor in its municipal court, with a contract start date of July 1,
2016.165 Kyle’s municipal court handled “approximately 6,000 annually[,]”
consisting mainly of “moving violations and a small number of cases
pertaining to code and juvenile violations.”166 The qualifications for such a
prosecutor as listed in the FRP were perfunctory, stating that a candidate
should be “qualified and capable” and, oddly, should never have filed for

161

U.S.
Census
Bureau,
American
Fact
Finder
–
Results,
http://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited July
15, 2016).
162
Home rule charters establish a city’s governmental structure (such as choosing a
mayor-council or council-city manager style of governance) and delegates differing duties
and powers amongst branches of the city’s government. Home rule charters are generally
adopted by way of election, as are any changes to such a charter.
163
City of Kyle Home Rule Charter 8 (2006).
164
Id. at 20.
165
City of Kyle, Request for Proposals, RFP NO. 2016-03-PM, Prosecution Services
for Municipal Court 2 (2016)(on file with author).
166
Id. at 5 – 6.

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nor have been adjudged bankrupt.167 According to the RFP, the evaluating
factors in screening through proposals was “1) Completeness of the
proposal submitted, 2) Understanding of the scope of work and services
provided, 3) Individual attorney’s or law firm’s experience and of its
assigned personnel, 4) Availability and accessibility, 5) Compensation.”168
While experience may seem like a significant factor to consider,
especially compared with some of the RFPs discussed above, in a
geographic setting with proximity to Austin and El Paso, finding attorneys
with five or more years of experience does not necessarily narrow the field
prohibitively as doing so in an area with only two or three active attorneys.
Apart from the experience and compensation factors, completeness of a
proposal, understanding of the nature of the job itself, and being physically
present for the job are not particularly demanding factors for any attorney
proponents for the City using the factors. The terms regarding cancellation
of the contract, however, are more illuminating. They state that:
The City reserves the right to terminate the contract if the
successful Offeror does not perform to the City’s
satisfaction.
The City of Kyle is a home-rule municipal corporation
operated and funded on an October 1 to September 30
basis; accordingly, the City reserves the right to terminate,
without liability to the City, any contract (or renewal
option) for which funding is not available.169
The focus of cancellation of a contract under the RFP rests on the
satisfaction of the town council, rather than voters; termination should also
be expected by a prosecutor hired by RFP if they are not able to bring in the
funding necessary to keep their jobs, along with keeping the city council
satisfied.
III. PROSECUTORIAL BIDDING AND OUTSOURCING IS DISTINCTLY
PROBLEMATIC
Thus far this Article has explored, to varying levels of depth, the
incentives (and disincentives) at play when outsourced prosecutors have
hired on through a competitive bidding process. Is there, however, a real,
substantive difference between a prosecutor hired through an RFP and
167

Id. at 8.
Id. at 10.
169
Id. at 7.
168

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contracting-out basis versus a traditional election for the position of head
prosecutor, or appointment of that same position? How is hiring a
prosecutor through a competitive bidding process anymore problematic that
employing a similar mode for procurement of any other service? One may
argue that a mayor or local government council who is elected is just as
publically accountable as would be an elected prosecutor, and that mayors
and local government councils appoint individuals to myriad positions
everyday. Certainly some questions may arise as to how putting
prosecutors’ jobs out to bid is any different than other sorts of governmental
procurement at all. The closest analog to the poor incentives created by
putting prosecutorial positions up for public bid may be found in the
controversial practice of asset forfeiture by police; as much as “[l]ucrative
forfeiture opportunities can also warp law enforcement priorities,”170
revenue-generated opportunities may also warp prosecutorial priorities,
especially when pressured to operate in a profit-driven matter by mayors or
local government councils. There has been some substantial examination of
public-private contracting in recent decades171 and comparing prosecution
function bidding to bidding that occurs in other industries illustrates helps to
illustrate why hiring prosecutors through a competitive bidding process
leads to unacceptably profit-driven prosecution.172
Even the small samples of language from RFPs from Part II.D.
above should raise red flags of concern; the arrangement of a local
government contracting out for prosecution services in such a manner
immediately implicates a multitude of dilemmas and creates opportunities
for perverse economic incentives that would cause local government
prosecutors to act in manners contrary to serving justice. This Section
argues, however, that some of the quandaries that have previously been
focused upon have been overstated, while others that have been ignored are
more deserving of our attention. Concerns that have been overlooked
include placing prosecutors in positions in which they have duties to two
principals, including the government, which “lacks the proper incentives to

170

David Pimentel, Forfeitures Revisited: Bringing Principle to Practice in Federal
Court, 13 NEV. L.J. 1, 31 (2012).
171
“The prevailing sentiment in the academic literature is that private, profitmaximizing firms should not be entrusted with providing government services absent
safeguards because profit-maximizing goals conflict with public service values.” Epstein,
supra note 21, at 2215.
172
Much of what makes competitive bidding for prosecution services problematic
versus competitive bidding for other services is prosecutions function as a “soft”
government service. Such soft services “tend to be more difficult to definite and measure
and involve discretion.” “Hard” services, on the other hand, “are easy to specify [and]
involve little discretion[.]” Id. at 2219.

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37

ensure high-quality service provision,”173 prosecutorial self-dealing, and
local governments shirking their responsibilities of providing quality public
services, while those concerns regarding conflicts arising from prosecuting
former clients and the like have been overstated in previous scholarship.
Privatization of public services is a risky business, but the reasons
for concern are particularly daunting when examining the contracting out of
prosecutorial services to lowest bidders, even when compared to other
services that might seem to implicate similar problems such as competitive
bidding for private prison construction and operation, as well as bidding for
public defense contracts. Asking whether there is much of a difference
between either hiring scheme dismisses the fact that “institutions matter,” as
well as the effect that differences in institutions, even upon positions that
would superficially seem similar, will have upon internalized incentives.174
The privatization of public services, generally, can be problematic: “The
goal of private enterprise—to make a profit—is antithetical to the
fundamental goals of public programs—to deliver services equitably,
honestly, and cost efficiently,”175 particularly when paired with the
prosecutor’s usual goal of serving as a minister of justice. A wide variety of
issues are implicated through any regime of public-private contracting: it
allows local governments to be unresponsive, and can create concerns
regarding “inefficiency, conflict of interest, and abuse.”176 The prosecutor’s
role, in its power and ubiquity in the criminal justice system, as well as its
specific purpose of seeking justice rather than lowered crime rates, higher
conviction rates, or higher revenue for public coffers, demands a different
analysis that would be applied to other services procured through
competitive bidding and RFPs.
A. Self-Dealing and Self-Interest
Self-dealing has been defined in a public sector context as “[a]
situation where one takes an action in an official capacity which involves
dealing with oneself in a private capacity and confers a benefit on
oneself.”177 Prosecutors, just as defense attorneys or other private sector
attorneys, owe a fiduciary duty to their clients, and must act in their best
interests. The ABA Prosecution Standards attempt to clarify the question of
173

Id. at 2217.
MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND
APPLICATIONS IN LAW 11-12 (2009).
175
Al Bilik, Privatization: Selling America To the Lowest Bidder, 1 LAB. RESEARCH
REV. 15, Article 10, 2 (1990).
176
Epstein, supra note 21, at 2215 (internal quotations omitted).
177
KERNAGHAN AND LANGFORD, THE RESPONSIBLE PUBLIC SERVANT 142 (1990).
174

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who serves as the prosecutor’s client: prosecutors are to work “solely for
the benefit of the client—the people—free of any compromising influences
or loyalties.”178
There are several factors that might make prosecutors more likely to
act on improper self-interest and self-dealing under an RFP based
contracting system rather than the traditional model of installing an elected
head prosecutor who may, given the size of the jurisdiction, hire assistant
prosecutors on a traditional, salaried basis. Prosecutors who have secured a
position with a local government through the RFP process have already had
to subject themselves to the competitive bidding process. In such situations,
attorneys interested in the position will have already made some
rudimentary calculations regarding the optimal compensation to request in
an attempt to undercut competition and secure a contract, especially with
the knowledge that efficiencies in cost are the overriding factor in
determining to whom to award a prosecution contract.
Prosecutors hired on contract are also much more vulnerable to
termination from their positions than elected prosecutors, or even those
assistant prosecutors who are hired by an elected prosecutorial supervisor.
The contractually outsourced prosecutor’s job has a natural “expiration
date,” coupled with the additional weakness that the local government may
cancel the contract, sometimes with the most minimal of notice.179 Elected,
incumbent prosecutors, of course, have the luxury of waiting to be voted out
of office (unless they have committed a rather egregious gaffe, in which
case states have varying methods of removal180), while even assistant
prosecutors, usually hired on as at will employees, may often benefit from
other protections such as collective bargaining agreements or favorable
employee policies and handbooks limiting the process of termination.
Financial pressures faced by contracted prosecutors may originate
178

ABA Prosecution Standards, supra note 17, at Standard 3-1.3 cmt. (1993).
See Ephraim City, Utah example infra Part II.D.5.
180
Some states have provisions for recall elections for those elected to public office,
such as district attorneys. See, e.g. L.A. County Registrar-Recorder/County Clerk, A Guide
to
Recall
(Jul.
2010),
https://www.lavote.net/documents/election_guides/GUIDE_TO_RECALL.pdf (last visited
Aug.
1,
2016);
Or.
Elections
Div.,
Recall
Manual
(Jan.
2016),
http://sos.oregon.gov/elections/Documents/RecallManual.pdf.
When appropriate, state bar associations may pursue ethics charges against attorneys,
including district attorneys, which may result in disbarment. For example, Michael Nifong,
the former district attorney of Durham County, North Carolina, was disbarred by the North
Carolina State Bar for “fraud, dishonesty, deceit or misrepresentation; of making false
statements of material fact before bar investigators, and of lying about withholding
exculpatory DNA evidence, among other violations.” Lara Setrakian & Chris Francescani,
Former Duke Prosecutor Nifong Disbarred, ABC NEWS (June 16, 2007),
http://abcnews.go.com/TheLaw/story?id=3285862&page=1.
179

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PROFIT-DRIVEN PROSECUTION

39

perverse incentives to, on the one hand, over-perform, and on the other,
underperform. Just as any other private service provider, prosecutors hired
on contract will be “motivated to maximize profit.”181 The attorney who
has advanced an hourly pay arrangement may have a greater tendency,
conscious or not, to spend more time “padding” their hours on a prosecution
job—in essence making every task take as long as possible. Conversely,
attorneys working on flat fee per case or monthly retainer bases may
become more lax in fulfilling their duties, doing as little as possible while
getting paid as much as possible under the contract. While some praise
competitive bidding as a way to control costs by awarding contracts to those
who would purportedly provide services more cheaply as government
employees are not usually rewarded for cost-saving, this is also a reason
why prosecutors hired in such a manner “might be even more motivated
than government actors to provide low-quality service.”182
It is important to acknowledge, however, that “non-deal (i.e., actual)
public servants also act out of private purposes[.]”183 An elected district
attorney, just as prosecutors hired through a public bidding process, is
subject to many of the same needs and pressures associated with life outside
of the job (“e.g., putting food on the table or paying for their kids’
education”).184 In examining the distinctions between employees and
contractors, particularly in the contexts of prison privatization, Professor
Alexander Volokh argued that there is, in essence, very little difference
between the motivations of private firms and individual employees acting
according to their private purposes, while challenging the assumption that
firms only “act to maximize profit.”185 He also explained that “it’s surely
true that a firm only acts to maximize profit if some individual or
individuals within the firm have taken such an action.”186 This is precisely
the task that prosecutors hired by way of RFP are expected to undertake
from the time they apply for an open prosecutorial position, with RFPs
stressing cost effectiveness and, implicitly, revenue generation above all
else.
B. Multiple Principals
Understandably, “prosecution outsourcing raises concerns about
181

Epstein, supra note 21, at 2215 (2013).
Id. at 2243.
183
Alexander Volokh, Privatization and the Elusive Employee-Contractor Distinction,
46 U.C. DAVIS L. REV. 133, 179 (2012).
184
Id. at 182.
185
Id. at 183.
186
Id.
182

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[8-Aug-16

accountability and transparency.”187 While there are widely acknowledged
dangers that arise from relying on publically elected prosecutors,188 such
prosecutors, at least, wield a local government’s power against its citizens
with the understanding that if such power is abused that their elected
position may be in jeopardy while also comporting with the longstanding
prosecutorial norms described in Part II.B. The outsourced, hired-oncontract prosecutor, however, is often much more shielded from public
view. Rather than having to seek approval from the public or, in the case of
an assistant prosecutor, helping one’s elected supervisor secure wide public
approval, the contract prosecutor only needs to perform for those who
control renewal of the contract—usually a mayor, city council, county
council, or city manager. While these supervisory positions at the heads of
local government usually are publically elected, the public will almost
certainly not pay the same attention to scrutinizing a prosecutor hired on
contract as they might to one who has had to campaign and whom they
elected themselves.189 Under such circumstances, the contract prosecutor
may feel a greater duty to those make hiring decisions and to the local
government itself rather than the real client to whom they owe a fiduciary
duty and a duty of loyalty—the public. A substantial conflict of interest is
an inherent feature of a prosecutor’s function when hired by way of RFP.
No matter such a prosecutor’s actual intentions and motivations; such a
prosecutor faces competing duties to the public, to the local government,
and often to their own firms.190 It is in such situations that a prosecutor may
decide to make choices that serve to enrich and benefit a local government
rather than the citizens it would purport to serve.
A desire to serve the local government and its leaders may create
even greater insidious incentives to either over or underperform than merely
187

Fairfax, supra note 24, at 283.
In particular, engaging in campaigning and relying on public support can politicize
prosecutorial functions in such a manner as to force publically elected prosecutors to
approach their jobs ever mindful of future polls.
189
The author does not mean to suggest that prosecutorial campaigns or elections are
necessarily high- or fair-minded, nor does she intend to somehow fetishize the
prosecutorial electoral process as being completely devoid of its own troubling problems.
See Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157
U. PA. L. REV. 959, 961 (2009)(“District attorneys’ electoral contests are rarely measured
assessments of a prosecutor’s overall performance. At best, campaign issues boil down to
boasts about conviction rates, a few high-profile cases, and maybe a scandal.”)(internal
citation omitted).
190
“Public and private employees both have a duty to their employer. But in the
public sector, that duty runs all the way up to The People, whereas in the private sector, the
employer itself (the corporation) has conflicting duties, one to its contractual partner (the
government and The People) and a fiduciary duty to its shareholders (who want their
profits maximized).” Volokh, supra note 176, at 185.
188

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41

through simple self-dealing.191 A classic example of over-performance is
treating municipal and other misdemeanor and infraction courts as revenue
generators for their respective municipal governments.192 Prosecutors may
aggressively pursue fines that many would consider unfair or excessive
while threatening jail for non-payment.193 Along this vein, new categories
of fines and fees appear to have been created for the sole purpose of raising
revenue; some of these additional fines and fees may appear particularly
outlandish, including those for probation supervision, jail “pay-for-stay”
plans,194 and “public defender recoupment” fees.195 On the other hand is a
complementary scenario that receives little, if any, attention. Prosecutors
may feel pressured or even encouraged to pursue options requiring that a
defendant pay a fine rather than argue for an outcome that would have been
beneficial and more rooted in concerns for public safety and justice, such as
drug and alcohol treatment or jail, but that would cost the jurisdiction
money it does not have or is unwilling to spend.196
191

It has been noted both in news media and in legal scholarship, especially since the
Ferguson case, that criminal justice systems, especially on a local level, have been run very
similarly to businesses. See, e.g., Editorial Board, Policing and Profit, 128 HARV. L. REV.
1723 (2015)(citations omitted): “Using law enforcement to raise revenue is part of a larger
trend of thinking about government through the logic of business. In the criminal context,
critiques of privatization has [sic] primarily focused on how these developments transfer
state authority to private actors. [No matter if a private actor is involved in a criminal case
one can often see] a financial motive structured right into the immense discretion (on the
pat of police, prosecutors, or judicial officers) that runs law enforcement. These actors
then use their considerable discretion to shape not only the substance of criminal law but
also its funding structure, in the way a legislature normally would. Budget authorities have
even started to cut police funding in response to these departments’ raising their own
revenue, in turn spurring police to raise even more money in these ways.”
192
See, e.g, Aaron Falk & Mike Gorrell, Salt Lake County, three others on track to
close
justice
courts,
SALT
LAKE
TRIBUNE
(July
16,
2012),
http://archive.sltrib.com/story.php?ref=/sltrib/news/54498871-78/county-court-courtsjustice.html.csp (discussing several Utah cities deciding to shutter their justice courts given
the fall in filings and revenue steam); City of Bryan, Texas, Municipal Court,
https://www.bryantx.gov/municipal-court/ (last visited May 20, 2016)(“The Court
processes an average of about 20,000 cases a year. The Court also issues an average of
about 5,500 warrants a year. The Court collects more than $2 million in revenues for the
City and State of Texas.”).
193
See generally, Alexes Harris, Heather Evans & Katherine Beckett, Drawing Blood
from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115
AM. J. SOC. 1753 (2010).
194
In which an inmate is charged for every day imprisoned in jail, then expected to pay
some time after release. Approximately seventy percent of states have authorized counties
or other local governments to bill inmates in an attempt to recover costs of incarceration.
Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 57 (2013).
195
Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day Debtor’s
Prisons, 75 MD. L. REV. 486 (2016).
196
Working briefly as a contract prosecutor for a small local government in Utah, the

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PROFIT-DRIVEN PROSECUTION

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Certainly an extreme example of rampant fine generating could be
found during Stephanie Karr’s tenure as Ferguson City Prosecutor, which
began in April of 2011, as well as that of the acting prosecutor who
preceded her. Since 2014, the City of Ferguson has become infamous; this
has been in no small part due to “[c]ity, police, and court officials” long
working together to “maximize every stage of the enforcement process.”197
Ms. Karr’s contract, unusual for such an arrangement, provided for
compensation of $150.00 per billable hour, and Ms. Karr, along with deputy
prosecutors from her law firm, made sure to keep themselves busy.198 Ms.
Karr has also recommended disproportionately high fines for what could
only be considered very minor offenses—$77 to $102 for an overgrown
lawn, $102 for parking fines—while providing more proper-sounding
reasosn for doing so (“large volume of non-compliance”) in an attempt to
hide the fact that such recommendations were made in an effort to bring the
city greater revenue.199 The acting Ferguson prosecutor preceding Ms. Karr
also advised law enforcement to allege every violation of law possible in
every case in an effort to boost revenue generation;200 he would also brag
about his effectiveness at acting as a collection agent for the city rather than
as a minster of justice, stating in a 2011 report to the Ferguson City Council
that he “denied defendants’ needless requests for continuance from the
payment docket in an effort to aid in the court’s efficient collection of its
fines.”201 Even after federal investigations that took place after Michael
Brown’s death concluded that Ferguson’s criminal justice system both
suffered from systemic racial bias and functioned as a revenue-generating
scheme, Ms. Karr continued on in her position, even prosecuting and
exacting fines from those protesting the shooting of Michael Brown in 2014
author encountered just such a case when prosecuting a defendant who had committed a
DUI; the defendant pled guilty. The author recommended that the Defendant be sentenced
to a weekend in jail to “dry out.” The municipal court judge encouraged the author to ask
for a large fine, instead. After the author refused to do so, the judge still sentenced the
defendant to a very large fine and no jail-time.
197
Ferguson Report, supra note 5, at 10.
198
“From 2014 to 2015, the amount prosecutors billed Ferguson rose from $30,260 to
$61,605. For work during the first three months of 2016, prosecutors’ charged Ferguson
just over $30,000. If that pace continues, prosecutors could cost the city more than
$120,000 this year.” Stephen Deere, Legal bills mount as Ferguson stands by ‘failure-tocomply’
cases,
S T.
LOUIS
POST-DISPATCH
(May
2,
2016),
http://www.stltoday.com/news/local/crime-and-courts/legal-bills-mount-as-fergusonstands-by-failure-to-comply/article_2070be9f-99f1-5218-9e3a-cdfaf4dfed5e.html.
199
Ferguson Report, supra note 5, at 10.
200
This included making sure that summonses for all “correct companion charges
[were] being issued, such as speeding, failure to maintain a single lane, no insurance, and
no seat belt, etc.” Id. at 11 (internal quotation marks omitted).
201
Id.

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well after the resignations of the Ferguson Municipal Judge, Chief of
Police, and City Manager.202

C. Blame Shifting and Lack of Accountability
The hiring of prosecutors through a public bidding process also
allows local governments an undue ability to shield themselves from
accountability for a prosecutor’s actions and disincentivizes them from
seeking to provide good service. If a hypothetical municipal prosecutor was
revealed to be unsuited to the job by way of temperament (perhaps the
prosecutor performs poorly in court) or ethical and philosophical approach
to the job (the prosecutor engages in an abundance of Brady violations or
some other problematic behavior), local governments who have hired such a
prosecutor have a much greater ability to point to their hiring process as the
source of the mistake rather than having to take on the same accountability
when more directly making such a choice, such as by appointing an attorney
to the position while offering a figure up front during salary negotiations.203
This disconnection of mayors and local government councils from the
prosecutors they happen to procure through bidding also introduces an
unacceptable risk of lack of oversight in prosecutorial standards.
This dodging of responsibility can be observed in different
industries in which outsourcing and competitive bidding predominate. A
particularly spectacular example of a failure in outsourcing and corporate
responsibility is the recent Boeing 787 production debacle. The 787
Dreamliner was due for completion, maiden flight, and delivery in 2008.
The first delivery, to All Nippon Airways, occurred on September 25,
2011.204 This massive delay was blamed on a number of factors, including
Boeing’s rampant outsourcing and the resultant lack of supervision and

202

Mariah Stewart & Ryan J. Reilly, Ferguson Prosecutor Accused of Misconduct
Crusading Against Ferguson Arrestees, HUFFINGTON POST (July 2, 2015),
http://www.huffingtonpost.com/entry/stephanie-karr-ferguson_n_7707802.
203
In the case of an elected prosecutor, elections are the usual method for holding such
a prosecutor accountable, while prosecutors who are appointed are subject to myriad ways
in which they may be terminated their position, which such diversity understandable given
the number of unique local governments. Given the lack of data collected on the subject it
is difficult to ascertain at this juncture how many unelected prosecutors are hired by way of
competitive bidding versus those who are merely appointed to their positions.
204
BOEING, ANA Complete Contractual Delivery of First 787 Dreamliner,
http://boeing.mediaroom.com/2011-09-25-Boeing-ANA-Complete-Contractual-Deliveryof-First-787-Dreamliner (last visited July 14, 2016).

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accountability.205 Even after delivery of the 787 to varying airlines, the
aircraft suffered from a variety of defects, including electrical and battery
system flaws, fuel leaks, cracked windshields, and brake problems, leading
carriers the world over to ground the 787 in 2013, the first “regulatory
grounding of an entire fleet […] since 1979.”206 Production of the 787 had
also gone over budget by several billions of dollars.207
The ability of a principal to avoid accountability or political fall-out
for problems arising from placing prosecution services up for competitive
bidding is rather similar. A mayor or local government council can more
easily foist any blame or political damage on a prosecutor under such an
arrangement.208 Prosecutors hired through a competitive bidding process
may attempt to do the same: “When problems arise, government officials
and private contractors can point fingers at each other, leaving the public
with little means of knowing who is really at fault.”209 Try as many may,
justice, fairness, and public confidence in officials is not something that can
or should be quantified or balanced against any other savings that can be
measured in dollars.
D. Illusory Problems of Outsourced Prosecution
While relying on a contract model for prosecution services increases
the risk of a prosecutor self-dealing or otherwise executing their jobs
improperly by being motivated, one way or the other, conscious or not, by
financial pressures, other concerns that have been previously addressed are
not the serious evils some would believe them to be. Underperformance of
a different sort than that discussed above has troubled some: “The demands
of the contractor’s private matters could monopolize the attorney’s time,
leaving the criminal prosecution matters without the appropriate focus and
attention.”210 Especially in the context of small jurisdiction contract
205

Dominic Gates, Boeing 787’s problems blamed on outsourcing, lack of oversight,
SEATTLE TIMES (May 1, 2015), http://www.seattletimes.com/business/boeing-787rsquosproblems-blamed-on-outsourcing-lack-of-oversight/; Michael Hiltzik, 787 Dreamliner
teaches Boeing costly lesson on outsourcing, L.A. TIMES (Feb. 15, 2011),
http://articles.latimes.com/2011/feb/15/business/la-fi-hiltzik-20110215; J. Lynn Lunsford,
Outsourcing at Crux of Boeing Srike, WALL ST. J. (Sept. 8, 2008),
http://www.wsj.com/articles/SB122083149762108451.
206
Steve Denning, The Boeing Debacle: Seven Lessons Every CEO Must Learn,
FORBES (Jan. 17, 2013), http://www.forbes.com/sites/stevedenning/2013/01/17/the-boeingdebacle-seven-lessons-every-ceo-must-learn/#70368733744f, Jan. 17, 2013.
207
Hiltzik, supra note 179.
208
Epstein, supra note 21, at 2242.
209
Matthew Diller, The Revolution in Welfare Administration: Rules, Discretion, and
Entrepreneurial Government, 75 N.Y.U. L. REV. 1121, 1210 (2000).
210
Fairfax, supra note 24, at 284 – 285.

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prosecutors on which this Article focuses, it is quite unlikely that attorneys
will be dividing their attention between any sort of high power, national or
international private practice with an additional local prosecutor job as a
supplement to that practice.
Both the ABA and National Prosecution Standards anticipate severe
conflict of interest traps when criminal prosecutions are outsourced. In
prescribing full-time prosecutors over part-time ones who have been hired
by contract, the National Prosecution Standards explain that no prosecutor
should “engage in professional conduct that is inconsistent with the need for
prosecutorial independence.”211 The ABA Prosecution Standards exhort
prosecutors to “not be involved in the prosecution of a former client.”212
There also exists in some circles trepidation that contract and/or part-time
prosecutors may prosecute former clients (and potentially be overly lenient
with criminals who need harsher treatment, presumably), or that such
prosecutors may try to use information gained during a prosecution or
investigation against other actors when practicing civilly in an improper
way while trying to derive some sort of advantage.
The practical reality that the ABA and NDAA Prosecution
Standards, as well as legal scholars, have seemed to ignore is that the
danger of conflicts of interest involving the prosecution of either current or
past clients is overstated. In those jurisdictions small enough that hiring one
full-time prosecutor is impossible, every attorney and any resident with
involvement with the courts will know who the prosecutor has previously
represented or whether the prosecutor is attempting to improperly utilize
superior knowledge. These communities are able to a greater degree to
police themselves in an effort to avoid any of the more traditional conflicts
of interest that may arise for a prosecutor in a larger market.213
E. Comparisons with Other RFP Processes
Local governments fulfill many of their needs for both goods and
services by way of competitive bidding processes, and, as such, it may seem
that if certain service needs may be fulfilled by a such a procurement
process, then prosecution should be no different. The fact that prosecutors,
211

NDAA Standards, supra note 66, at Standard 1-1.3.
ABA Prosecution Standards, supra note 17, at Standard 3-1.7
213
In an example geographically close to home for the author, the Utah Supreme
Court decided that the “vital interests of the criminal justice system are jeopardized when a
city prosecutor is appointed to assist in the defense of an accused. Consequently, we hold
that as a matter of public policy […] counsel with concurrent prosecutorial obligations may
not be appointed to defend indigent persons.” Utah v. Brown, 853 P.2d 851, 856-857 (Utah
1992).
212

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however, provide a uniquely important public service that should not be
subject to competitive bidding, however, becomes clearer when looking at
two other examples in which governments typically contract for services
after a public bidding process—the construction and operation of private
prisons and the hiring of public defenders. Comparisons with those two
industries will be made Parts E.1. and E.2., below.

1.

Bidding for Prosecutorial Services versus Private Prisons

One useful reference point for thinking about the risks of
outsourcing prosecution is the privatization of prisons. The growth of
privatized prisons has been astronomical in the past few decades. “In 1999
private prison contracts existed in 31 states. That figure grew to 33 states
by 2004, before declining to 30 by 2010.”214 Contracts for the building and
operation of private prisons are usually granted to an applicant after a
similar public bidding process as that examined thus far in this Article,
offering a useful comparative analogy from a different sector of the criminal
justice system.215 Privatization of prisons has been advocated for the same
reasons as privatizing many other government and public services—cost
savings, superior quality for greater value, and job generation have all been
advanced as reasons for the bidding and outsourcing of both construction
and operation of private prisons. Perhaps unsurprisingly, however, unique
issues arise with the privatization of prisons; it is often difficult to maintain
“all the services necessary to maintain[] safety in prisons” as the “services
that receive comparatively less funding in order to contain costs” are both
“personnel and programs.”216
Corrections Corporation of America
(“CCA”) made it clear in their 2010 Annual Report that their main goal is
profit-making and cost savings:
Our growth is generally dependent upon our ability to
obtain new contracts to develop and manage new correction
and detention facilities. This possible growth depends on a
number of factors we cannot control, including crime rates
214

Cody Mason, SENTENCING PROJECT (Jan. 2012), Too Good to be True: Private
Prisons in America 5, http://sentencingproject.org/wp-content/uploads/2016/01/Too-Goodto-be-True-Private-Prisons-in-America.pdf.
215
See Lauren Galik, Leonard Gilroy & Alexander Volokh, REASON FOUNDATION
(June 2014), Annual Privatization Report 2014: Criminal Justice and Corrections,
http://reason.org/files/apr-2014-criminal-justice.pdf.
216
Id. at 10.

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and sentencing patterns in various jurisdictions and
acceptance of privatization. The demand for our facilities
and services could be adversely affected by the relaxation
of enforcement efforts, leniency in conviction or parole
standards and sentencing practices or through the
decriminalization of certain activities that are currently
proscribed by our criminal laws.217
While they may not seem alike on their surface, prosecutors competing for
contracts and CCA (and, presumably, other firms in the privatized prison
trade) are subject to some of the same vicissitudes effecting their abilities to
secure business for themselves, such as crime rates, appetites for the
bidding and privatization processes in different jurisdictions, and stringency
in law enforcement not just on the policing side but also the drafting and
amending of criminal codes to be either more lax or more restrictive.
Private prison contractors such as CCA and the GEO Group,
however, are engaged to provide services whose aspects are quantifiable
and, as such, possible to evaluate.218 There are often concrete standards that
such companies are expected to meet, from staffing requirements,219
maintenance of facilities and equipment,220 food service protocols,221 square
217

Id. at 12 (internal quotations omitted).
Information on private prisons, however, is becoming more difficult to obtain. Rep.
Sheila Jackson Lee of Texas introduced for the sixth time the proposed Private Prison
Information Act of 2015, which endeavored to have records regarding private prison
operations subject to FOIA in the same manner as records maintained by any other federal
agency. See H.R. 2740, 114th Congress (Sess. 1). The bill was referred to the Crime,
Terrorism, Homeland Security, and Investigations Subcommittee on June 16, 2015, and
had not seen any progress since. See All Bill Information (Except Text) for H.R.2470 –
Private Prison Information Act of 2015, https://www.congress.gov/bill/114thcongress/house-bill/2470/all-info (last visited July 21, 2016).
219
Forrest Wilder, World’s Largest For-Profit Prison Blasted in Federal Audit, TEX.
OBSERVER (Apr. 23, 2015), https://www.texasobserver.org/worlds-largest-for-profitprison-blasted-in-federal-audit/ (discussing a private prison company’s violation of staffing
requirements set by the federal Bureau of Prisons).
220
Caroline Isaacs, AMERICAN FRIENDS SERVICE COMMITTEE (2015), AFSC White
Paper:
Private,
For-Profit
Prisons
in
Arizona
2,
https://morrisoninstitute.asu.edu/sites/default/files/content/products/AFSC.pdf (discussing
security failure related to equipment and facilities maintenance problems, such as
“malfunctioning cameras, doors, and alarms; holes under fences; [and] broken perimeter
lights and cameras[.]”).
221
Ohio Dep’t of Rehab. & Corr. (2012), Lake Erie Correctional Institution,
September
18
–
20,
2012,
Full
Internal
Management
Audit
8,
http://www.dispatch.com/content/downloads/2012/10/prison-audit-report.pdf (listing food
service concerns such as not taking food product temperatures regularly, lack of proper
sanitizing of pots and pans, and a lack of extra clean clothing that was supposed to be
provided to inmate food service workers).
218

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footage depending on the type of room and its proposed occupancy,222 and
the like. Prosecutors, on the other hand, are charged, as has been discussed
throughout this Article, with a special “duty to do justice,” a duty which can
best be described employing Professor Bruce Green’s words—“protean as
well as vague.”223 “Unfortunately, the worth of justice cannot be accurately
quantified.”224 Justice is a concept and ideal that cannot survive
quantification; attempts to do so would provide results and measurements
for different concepts altogether, such as crime or conviction rates.225 It is
precisely due to the unquantifiability and ineffable character of “justice”
that its minister should be not be put up for competitive bid by any level of
government, local or otherwise, to be auctioned off to the lowest bidder.
Given the nature of justice, it becomes all the more incumbent on a
prosecutor to not put themselves in situations, including securing
employment by way of public bidding, that may call their motives to
question.
On a more practical level, it is exceptionally difficult to evaluate
uses of prosecutorial discretion in an objective fashion as one might the
performance of a private prison operator. The important roles and duties of
a prosecutor also demand that applicants inherently have some disposition
to doing justice on behalf of the clients – in this case, the public. Throwing
open the hiring process through a public bidding and RFP process, however,
could hypothetically lead to candidates attempting to purchase the ability to
“do justice” from a local government. While unlikely, nothing in the RFPs
reviewed (and one may venture to guess that no RFPs currently existing)
explicitly prevents an applicant from attempting to pay a local government
for the privilege of serving as a local prosecutor. The caliber of a candidate
would certainly be suspect in such a situation; the applicant willing to not
only underbid but either work pro bono or to pay for such a position would
almost certainly be doing so for political clout, for the sheer enjoyment of

222

See 501 KEN. ADMIN. REGS. 3:050.
Bruce A. Green, supra note 44, at 608.
224
Thomas E. Bilek, Accountants’ Liability to the Third Party and Public Policy: A
Calabresi Approach, 39 SW. L.J. 689, 702 (1985).
225
In this sense, I would argue that justice has much in common with mercy, which
also cannot be quantified and which a prosecutor, in a position of discretionary power, may
certainly employ in circumstances they may think are appropriate, providing yet another
amorphously unquantifiable tool in the prosecutorial toolbox. “[J]ustice and mercy both
have roles in the criminal justice system; mercy cannot be precisely quantified and
institutionalized or it ceases to be mercy and becomes leniency; mercy is the trump that can
capture equality’s ace and allow punishment at the bottom range of a deserved
punishment.” NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW 180 (1982).
223

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prosecuting individuals and exerting the government’s power over
defendants, or for some other ignoble purpose.226
2.

Bidding for Prosecutorial Services vs. Indigent Defense

Another important reference point for evaluating the risks of
contracting out prosecutorial services is the competitive bidding of our
indigent defense services. Providing for indigent defense services, much
like prosecution services, is also difficult for small local governments,
especially those located in nonmetro areas. Given that public defense
would seem to be the other side of a coin shared with the prosecution
function, one may initially believe that all of the same problems exist for
public defender positions that are contracted out after an RFP/bidding
process as for contracting out prosecution. The roles of the defense attorney
versus the prosecutor, however, affect the analysis of which, if any, actors
in the criminal justice system at a local level should be hired by way of
RFP.
Defense attorneys, for a variety of reasons, may be seen as being
held to a much lower aspirational bar than that imposed on the prosecution
function. Rather than having to represent the public or being tasked with a
job as seemingly full of contradictions as a prosecutor’s charge to effectuate
“justice,” a defense attorney’s loyalty and fiduciary duty run to his client
and his client alone.227 While it has been held that the “right to counsel is
the right to the effective assistance of counsel,”228 it is particularly difficult,
if not nearly impossible, to make the requisite showing necessary to
establish ineffective assistance of counsel.229 Though defense attorney
performance is to be assessed using an “objective standard of
reasonableness,” courts are “highly deferential” when reviewing a defense

226

This assessment does not take into consideration the valuable work of prosecutorial
clinics, such as those operated by Harvard Law School or the University of Virginia School
of Law, that provide services pro bono to different prosecutor’s offices. Students
participating in such clinics, however, often receive experience that will boost their chances
of employment after law school, as well as credits that may be applied toward graduation.
Students participating in prosecution clinics, as such, are not providing free services at all.
227
“Representation of a criminal defendant entails certain basic duties. Counsel’s
function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a
duty to avoid conflicts of interest.” Strickland v. Washington, 466 U.S. 668, 688
(1984)(citing Cuyler v. Sullivan, 446 U.S. 335, 346 (1980)).
228
McMann v. Richardson, 397 U.S. 759, 771 note 14 (1970).
229
There are two factors to consider when attempting to establish ineffective assistance
of counsel: 1) deficient performance, and 2) the deficient performance resulting in
prejudice serious enough to bring the outcome of the proceeding into question. Strickland,
466 U.S. at 689 – 691.

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attorney’s performance.230 Strategic choices by defense counsel are
“virtually unchallengeable,” including “reasonable decision[s] that make[]
particular investigations unnecessary.”231 Any defendant attempting to
make a showing that his attorney rendered ineffective assistance of counsel
“must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”232
As elucidated by Strickland and its progeny, the burden on a
defendant seeking to demonstrate ineffective assistance of counsel is, in
most circumstances, insurmountably high. Conversely the standard for
sufficient defense attorney performance is very low, for good or ill. The
only legal concern when putting public defense contracts up for bid is hiring
an attorney who can surpass the low standard set for “effectiveness.”233 On
the other hand, however, this low bar is a bar that has been more firmly
defined that a prosecutor’s duty to “seek justice.” This Article certainly
does not advocate that the public defense bar seek to only meet its rather
low minimal obligations to clients; it does, however, argue that public
defenders have clear, articulable standards to follow by which their
performance may be more easily assessed and for which they must be
accountable in contrast to the vague but important goal to “do justice”
incumbent upon a prosecutor. In this sense, public defenders have a more
objective standard by which to judge themselves by why which to be judged
and procurement of their services by way of RFP and competitive bidding is
not nearly a problematic.
IV. CONCLUSION
While most contract prosecutors hired through an RFP and
competitive bidding process likely believe themselves to be devoid of any
form of destructive tendency to over or underperform, contracting out for
prosecution services, especially as a method for saving resources rather than
hiring a prosecutor on a salaried basis, should be abandoned. This Article
demonstrates that incentives for prosecutors to engage in self-interested
behavior by under or over-performing while engaging in revenue
230

Id.
Id.
232
Id. at 694.
233
Public defenders hired on a contractual basis by way of RFP may, however, feel
some similar economic pressures and incentives as prosecutors, including overbilling when
hired on an hourly basis, and underperforming so as not to run over any set budgets set by
the local governments that have contracted with them.
231

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generation, as well as the incentives for local governments to prioritize
profit-driven prosecution, are too great. Apart from the perverse incentives
that operate upon prosecutors and local governments when employing
competitive bidding and RFPs in prosecution service procurement, the
public is also deprived of a prosecutor who meets exemplifies long-standing
prosecutorial norms: 1) a full-time government employee, 2) who devotes
all of her time and professional energies to criminal prosecution, and 3) tries
to somehow do or effect some vague notion of “justice.”
This Article is the first of its kind to examine the pitfall of
employing RFPs on the local and municipal prosecutor level. While the
problems that arise from this process may initially seem far removed to
many, especially those living in large cities, with greater budget shortfalls
and pushes for devolution of governmental responsibilities to local
governments occurring nationwide, the problems described in this Article
are very likely to spread. Further investigation into potential interventions
on local government levels will be necessary to stanch and prevent this
increase.

 

 

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