Vol. 30 No. 1 (January 2020) pp. 12-17U.S. ATTORNEYS, POLITICAL CONTROL, and CAREER AMBITION, by Banks Miller and Brett Curry. New York: Oxford University Press, 2019. 201pp. Cloth $64.00. ISBN: 978019092824.
Reviewed by Virginia Hettinger, Department of Political Science. University of Connecticut. Email: virginia.hettinger@uconn.edu.
U.S. ATTORNEYS, POLITICAL CONTROL, and CAREER AMBITION offers a well written and extensively researched account of the complexity and fundamentally political nature of the work and careers of United States Attorneys (USAs). The authors combine well-placed stories of USAs, compelling arguments for employing various theoretical lenses, and rigorous quantitative approaches to explore case filing decisions, sentencing outcomes, and post-USA career moves. It is an ambitious work. Perhaps, in places, too ambitious for the space available. The result is that the reader ends up sometimes frustrated, but always more curious, about the subject and leaving your reader more interested and more curious is a good problem to have.
Banks Miller and Brett Curry begin by telling two stories that illustrate the discretion that U.S. Attorneys enjoy in implementing the enforcement of federal law. Both examples prove to be cautionary because they end with Supreme Court reversing parts of both convictions and criticizing the excessive prosecutorial zeal present in both cases. The rest of the introduction provides a brief history of U.S. Attorneys. The history again emphasizes the discretion that U.S. Attorneys possess but also notes that leaders in the Department of Justice (DOJ) have sought greater control and increased centralization since the DOJ was created in 1870.
The second chapter of the book provides three more extensive case studies to illustrate efforts at centralizing control over USAs. The first focuses on the Reconstruction period and efforts by the president and other executive branch figures to increase the enforcement of civil rights. The emergence of the DOJ in 1870 led to increased centralization, greater emphasis on prioritizing some types of prosecutions for electoral purposes, and increased politicization of who would serve as USAs. The second case study focuses on the savings and loan crisis of the 1980s and 1990s. Congress and the DOJ played key roles in driving the prosecution of financial fraud by strengthening statutes and providing additional resources to USA offices. The last case study examines [*13] the George W. Bush administration’s dismissal of nine USAs in 2006. Miller and Curry conclude that “both political circumstances and performance metrics were predictive of the USAs who are ultimately directed to resign” (p. 39). In this chapter, Miller and Curry begin to describe those who attempt to control USAs as principals from a principal-agent theory perspective.
Chapter 3 provides a thorough and careful explanation of principal-agent theory. Drawing on the narratives in Chapters 1 and 2, Miller and Curry make a compelling case for the value of principal-agent theory in understanding U.S. Attorneys. They begin by establishing that U.S. Attorneys face multiple principals. At the national level, Congress and the executive branch act as principals attempting to control the behavior of the U.S. Attorneys. Local officials, District Court judges, and local political ideologies may also influence U.S. Attorneys. The authors also identify the ways principals might convey their goals to the USAs including presidential statements and Congressional oversight hearings. Additionally, Miller and Curry identify other important factors in the federal criminal prosecution. The complexity of cases is not constant across all issue areas, which makes it more difficult for principals to monitor USAs in some issue areas. There are also multiple ways to measure whether U.S. Attorneys are adhering to the priorities of their various principals. Miller and Curry describe outputs and outcomes; outputs are defined as the “the effort made in filing cases” (p. 52) while outcomes are captured by monitoring convictions or sentence length. Finally, Miller and Curry introduce ambition theory. U.S. Attorneys recognize the short-term nature of their position as U.S. Attorneys. Some USAs might seek vertical advancement (movement to higher level positions within the executive branch) and others might seek diagonal advancement (movement to high prestige positions in the private sector). Diagonal career goals might increase a U.S. Attorney’s propensity to shirk the priorities of national principals. By the end of the chapter Miller and Curry have created a rich and convincing framework for understanding the behavior of USAs. The authors paint a picture of legal professionals with their own beliefs and priorities who may be monitored and constrained by principals at the local and national level. The USAs enforce the law across a wide range of legal issues with varying levels of complexity in terms of both obtaining convictions and the feasibility of successful monitoring. They do all of this with varying long-term career goals and the understanding that their short- and long-term success can be conditioned by these factors and the interactions of these factors. [*14]
Chapter 4 explains the major data sources. Miller and Curry use DOJ data compiled in the Transactional Records Access Clearinghouse at Syracuse, the Public Papers of the President, and their own data on post tenure placements. They provide descriptive statistics and graphical displays of variations in the five issue areas-immigration, narcotics, terrorism, weapons, and white-collar crime. They assess each issue area for workload, and define expectations for salience, complexity, and ideological preferences in each issue area. Case filings and sentence length are examined cross sectionally and over time. Narcotics cases make up the biggest portion of the case load even though drug enforcement jurisdiction overlaps with state jurisdiction. Terrorism is the smallest. Immigration caseloads vary greatly by district. Immigration, narcotics, and weapons cases showed increasing centralization over time. Terrorism and white-collar cases showed a decrease in centralization over time.
Chapter 5 shifts the focus to case filings in a particular issue area expressed as a percentage of total case filings. This operationalization recognizes that USAs have limited resources and must make choices about how to allocate those resources. Devoting more time and resources to weapons cases leaves less time and fewer resources for prosecuting crimes in other areas. The authors estimate separate models for each of the five issue areas and obtain strikingly different results depending on issue area. Their first focus is on how USAs respond to partisan control of the executive and congress (RR, RD, DR, and DD). Immigration case filings vary little, regardless of the partisan make up of national principals. Several other issues areas are consistent with the hypothesized preferences of unified Republican control or unified Democratic control. These areas include narcotics, white collar, weapons, and terrorism cases. A second emphasis is on signals from principals at the national level. Using presidential rhetoric, as measured by mentions in the Public Papers of the President, they find significant relationships between presidential rhetoric and case filings in several issue areas. Congressional hearings are also significantly related to case filings in several issue areas although they sometime operate in the opposite direction from presidential rhetoric. The chapter also concludes that the influence of local factors in case filings is minimal. National principals exert substantively large and statistically significant influences over filing decisions in many issue areas.
Chapter 6 turns to sentence length. While USAs have a great deal of control over whether to direct resources to different issues in making filing decisions, sentence length depends on other actors, [*15] mandatory minimum sentences, and the federal sentencing guidelines. Miller and Curry examine the same five issue areas and employ many of the same variables to capture the influence of multiple national principals and various local factors. Presidential priorities have significant influence over the length of sentence but Congress does not. For local factors, including the ideology of the USAs, the results are “decidedly mixed” (p. 117). Finally, the authors treat the change in the status of the federal sentencing guidelines after the U.S. v. BOOKER as a key intervening variable. They find that USAs enjoyed increased discretion in immigration and narcotics cases after BOOKER made the sentencing guidelines advisory rather than mandatory.
The final substantive chapter shifts the focus to post-tenure career moves among U.S. Attorneys. The norm is for incoming administrations to seek resignations from all incumbent USAs. Outgoing administrations may seek to inoculate USAs from these dismissals by offering vertical advancement and appointing loyal agents to federal judgeships or other executive branch positions. Movement to positions outside the executive branch, or diagonal advancement, describes other career outcomes but placement in private practice, especially in large law firms offers higher salaries and more prestige. How administrations award federal judgeships to USAs who act as loyal agents are rarely in the ways hypothesized but administrations do reward loyal USAs for meeting partisan priorities with other executive branch positions in ways that are more consistent with expectations. Movement to the most prestigious law firm positions is shaped by many factors that have little to do with job performance. Women are less likely to move to the private practice and large law firms. USAs working in the largest offices move to larger firms. Performance records in narcotics and white-collar cases bear some relationship to private sector career moves but other performance records do not.
The last chapter stresses the key finding of the book. U.S. Attorneys have significant discretion but they are also limited by executive and legislative branch principals. Those controls mean that the is a measure of democratic accountability, but also political responsiveness in the work of U.S. Attorneys. With that political responsiveness in mind, Miller and Curry emphasize the challenges that USAs are likely to face in the norm breaking Trump administration.
Throughout the book, Miller and Curry communicate a great deal of information quite effectively, especially by using graphs to display differences in marginal effects throughout Chapters 4, 5, 6, [*16] and 7. The ambitious scope of the book, however, leads to some unevenness in discussions. For example, results are not always systematically interpreted. Sometimes they are, as in Table 7.2, but other times they are less clearly presented. This seems to be because there are so many possible points of comparison—across individual issue areas, between complex and simple cases, between high and low salience cases, among principals at the national level, among national versus local principals. Interesting results that appear in the highly effective and informative graphs receive little discussion. Key comparisons sometimes appear in a chapter’s concluding remarks without strong connections to the discussion in chapter. The strongest interpretation of results appears in Chapter 7, not only because of helpful displays like Table 7.2 but also because Miller and Curry present simulations of the probability of different outcomes for various hypothetical and real USAs.
Another concern is that the intended audience isn’t always clear. This is most prevalent in how principal-agent theory is introduced. In Chapters 1 and 2, the authors describe higher level officials as principals but do so without providing even a brief accounting of principal-agent theory. While most social scientists will know this, other readers may spend the first few chapters in a state of confusion. Uncertainty regarding audience comes through in some statistical discussions as well. For example, the discussion of case filing percentage on page 86 goes into great detail to explain a relatively simple concept. The next paragraph provides the necessary but complex discussion of modeling choices. The difference between the two is striking and while both are necessary, the more complicated content may be better placed in footnotes.
Substantively, the book is remarkable. My only criticism is that in spite of the complexity of the explanations that the authors provide, the role of the law and the hierarchy of the judicial system is under-emphasized. The book begins with the stories the Supreme Court overturning two convictions. With the exception of mandatory minimums and the pre-post U.S. v. BOOKER variable in the sentence length analysis, the law and the judicial hierarchy have little role in these analyses. The account is almost entirely political. This is an important gap, whether you think of precedent as the law or as one more indication of priorities from a principal charged with monitoring the actions of an agent.
As noted in the introduction, U. S. Attorneys, Political Control, and Career Ambition is well conceptualized, well researched, and well written. Miller and Curry have provided [*17] a rich and complex view of the political nature of the environment in which U.S. Attorneys work. It is a valuable contribution to our understanding of criminal justice, political processes, and democratic accountability.
CASES:
U.S. v. BOOKER 543 U.S. 220 (2005).
© Copyright 2020 by the author, Virginia Hettinger.
