THE POLITICS OF FEDERAL PROSECUTION, by Christina L. Boyd, Michael J. Nelson, Ian Ostrander, and Ethan D. Boldt. Oxford University Press. 2021. 252pp. Hardcover $99.00. ISBN: 9780197554685.
Reviewed by Banks Miller. Department of Political Science, University of Texas – Dallas. Email: millerbp@utdallas.edu.
THE POLITICS OF FEDERAL PROSECUTION, by Christina Boyd, Michael Nelson, Ian Ostrander, and Ethan Boldt, successfully demonstrates the various ways in which United States Attorneys (USAs) are politically responsive. The book is a concise and accessible introduction to the role of USAs in American politics and several new areas of study, including, most interestingly, the role of USAs in criminal asset forfeiture.
Chapter 1 introduces the topic by describing the importance of federal prosecutors, who have virtually unfettered discretion within the criminal justice system. Chapter 2 describes the historical evolution of USAs and the growth of the Department of Justice in response to the problems of Reconstruction. An important point here is that Congress sought to centralize control of federal prosecutors under the Attorney General. This chapter also notes the explosive growth in the size of the Department of Justice and in the number of federal crimes. Chapter 3 details the confirmation of USAs. Chapter 3 does a good job of placing the political appointment process into historical context, including a discussion of attempts to reform the system by moving to a merit-based selection system. This chapter also includes useful information on the demographics of who gets nominated to serve as a USAs (and not just those who are ultimately appointed). One major theme emerging from the discussion in Chapter 3 is the importance of local ties in the selection of federal prosecutors. Chapter 3 also includes a model of the time it takes for a nominee to be confirmed to a position, with two central findings. First, as the ideological distance between the President and the Senate Judiciary Chair increases, so too does the time to confirmation. Second, the nominees of more popular presidents tend to receive quicker confirmation.
Chapter 4 introduces the question of what happens to USAs after their careers as federal prosecutors conclude. This chapter is largely descriptive, including information on how long USAs tend to serve and where they tend to go—predominantly into private practice, with significant numbers moving to federal judgeships and elected office. Here there is a bit of a missed opportunity to build on the work of Miller and Curry (2019), who model this process and introduce the notion of vertical and horizontal promotion tracks which require differing kinds of attentiveness to different political principals. Chapter 5 describes the principal-agent theory that lies at the heart of the empirical inquires in Chapters 6, 7, and 8. A conclusion from the authors here is that the strength of ex ante selection mechanisms makes ex post control of USAs less important. The focus in these remaining chapters is on the responsiveness of USAs to three major sets of political actors: the president, Congress, and the local public. The authors use standard measures for presidential (rhetoric in the State of the Union) and congressional attention (hearings) to an issue (e.g. Whitford and Yates 2003). Measures of local opinion are both more innovative and more problematic than those for national level actors. Local public opinion on crime can only be disaggregated into nine regional levels (e.g. East North Central, Pacific, South Atlantic, etc.). Thus, it can be difficult to know whether, for instance, we should really expect the USA for the Western District of Texas to respond to opinions on violent crime that are aggregated from the states of Arkansas, Oklahoma, Louisiana, and Texas. An innovative measure—more finely tuned to their purpose—is the use of local punitiveness based on the incarceration rates in states.
Chapter 6 is an analysis of the decision to prosecute. Particularly interesting in this chapter is the data on reasons for declining to prosecute offered by USAs and Assistant USAs. For instance, Figure 6.3 displays declination rates by category of crime, with immigration and drug offenses significantly less likely to be declined than violent or property offenses. The empirical analysis here focuses on violent crime (murder, bank robbery, assault, etc.), leaving aside important areas of federal enforcement like white-collar crime and immigration violations. Fixed effects are introduced to control for heterogeneity within the violent crime category. Results are congruent with previous work on political responsiveness (e.g. Miller and Curry 2019; Boldt and Boyd 2018; Whitford and Yates 2003)—namely that USAs alter their decisions to prosecute in response to political pressure from the president, from Congress, and from the local public. Figure 6.8 plots the likelihood specific categories of cases are prosecuted, showing dramatic variation within violent crime as a category. For instance, firearms cases are prosecuted 65% of the time while burglaries and robberies are prosecuted about 30% of the time. One wonders whether closer examinations of individual categories would have uncovered heterogenous effects for political attention.
Chapter 7 focuses on the decision to bargain over charges with a defendant and to offer a downward departure recommendation on sentencing. This is an analysis that is, so far as I know, new to the literature on federal prosecution. Rather than focus on the length of the sentence ultimately given to a defendant, the authors here analyze the dichotomous decision of whether to dismiss charges originally filed or to provide a substantial assistance memo to a judge to reduce the potential sentence length. These are second-order indications of the ultimate sentence served by an individual, but they have the benefit of eluding some of the inherent complications in analyzing sentence length, such as the striking down of the federal sentencing guidelines in U.S. V. BOOKER (2005) and the role of mandatory minimums in sentencing. The authors find that as presidential rhetoric on violent crime increases, the likelihood of charge bargaining decreases while they find that increasing congressional attention to violent crime reduces the likelihood of substantial assistance departures. Yet presidential rhetoric seems to have no correlation with the granting of a substantial assistance departure, while congressional attention has no significant correlation with charge bargaining. The authors explain this curious divergence by noting that substantial assistance departures are more closely connected to the sentence guidelines and therefore Congress. As the authors note, more research is needed to understand this divergent relationship.
Chapter 8 offers a unique analysis on the politics of criminal asset forfeiture. There is a good discussion of the ways in which, as in so many areas of federal prosecution, USAs have enormous discretion in using it. There is wide variation in the use of criminal forfeitures over time, as demonstrated in Figure 8.1 (ranging from less than 1000 in the early 1990s to over 5000 in the mid-2000s). Using criminal forfeiture tools is another way that USAs can signal their political responsiveness to superiors in Washington and potential constituents at home. Here the authors’ analysis extends out from violent crime to also include white-collar and drug cases. Once again, the evidence offered by the authors shows that USAs respond to presidential rhetoric, congressional hearings, and some aspects of local public opinion. There is also a nice discussion at the end of the chapter on the distinction between criminal and civil forfeiture and variation in the use of the two over time. Chapter 9 offers concluding thoughts, including a discussion of how norm-erosion at the Department of Justice under President Trump may have lasting consequences.
The major strengths of this book are its accessibility and the analysis of criminal asset forfeiture data. The accessibility comes with some costs in terms of the complexity of the analysis. For instance, in many empirical analyses, the use of violent crime as a category of analysis may be too blunt for some. On the other hand, aggregating the data in this way makes it easier to understand and to analyze. It also allows the authors to clearly show the pervasiveness of the political responsiveness of USAs. I suspect that this book will work well in upper-level undergraduate courses focused on law and politics or criminal justice. It would also be useful in graduate courses on criminal justice or the federal bureaucracy, among others.
CASES: UNITED STATES V. BOOKER, 545 U.S. 220 (2005).
REFERENCES:
Boldt, Ethan D. and Christina L. Boyd. 2018. “The Political Responsiveness of Violent Crime Prosecution.” POLITICAL RESEARCH QUARTERLY 71: 936-948.
Miller, Banks and Brett Curry. 2019. UNITED STATES ATTORNEYS, POLITICAL CONTROL, AND CAREER AMBITION. New York: Oxford.
Whitford, Andrew B. and Jeff Yates. 2003. “Policy Signals and Executive Governance: Presidential Rhetoric in the War on Drugs.” JOURNAL OF POLITICS 65: 995-1012.
© Copyright 2021 by Banks Miller.
