This story is a few days old, but I flag it because while I was initially very skeptical, I am now somewhat uncertain. A DA in Colorado has instituted a system of bonuses for line ADAs: try at least 5 cases a year (that is not a large number, in my experience), reach a conviction rate of at least 70%, and receive a bonus in the range of about $1,000 to $3,000.
One important thing that will color any assessment of this plan is that we are talking about conviction rates and not total convictions (the title of the piece is potentially misleading). One might think that to the extent that the bonus system conditions a prosecutor's discretion about whether to bring a case at all, it might be a good thing. Also, and as a general matter, we want prosecutors to give better deals for weaker cases, and to try stronger cases, so perhaps the incentives in this kind of system may match up with the public interest.
On the other hand, it is certainly possible that the bonus system might make a prosecutor push to try a case that ought really to settle, thereby misallocating resources in an already resource-strapped system. On the third hand, it might be thought a good thing to provide incentives for more cases to be tried, since the risk aversion of prosecutors to trials, and the deleterious effects on the development of criminal law, is problematic (thanks to Mike Simons for this thought). On the fourth hand, suppose the year is coming to a close, and a line ADA has not met his quota. Wouldn't that ADA have incentives to go for broke and try a whole string of cases, because a few more losses would not affect his salary, but a few more wins might vault him "into the bonus"? Finally (5th hand), who makes the decision about when to try? The DA herself, or the line ADA? I can see problems here if the discretion about whether to push for trial is solely (or even mostly) in the DA's hands.
There are also potential difficulties under the ethics rules (Rule 3.8 and maybe even Rule 1.5's proscription against contingent fees in criminal cases) that are implicated. Thoughts about the justifiability of this scheme?
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The Ave Maria Law Review (Vol. 9; Issue 1)(2010) has just published a symposium on "The Future of Rights of Conscience in Health Care." The symposium grew out of a conference that Lynn Wardle (BYU) and I organized. The conference was generously supported by University Faculty for Life and was also sponsored by the J. Reuben Clark Law School at BYU and Ave Maria School of Law. The conference was held at the J. Reuben Clark Law School at BYU last February. The symposium issue of the Ave Maria Law Review contains papers by (I'll list them in order of appearance) Lynn Wardle, Kent Greenawalt, Rob Vischer, Armand Antommaria, Robin Fretwell Wilson, Richard Myers, Jill Morrison and Micole Allekotte, and T.A. Cavanaugh.
Richard M.
Paul Caron has them. MOJ continues to grow in traffic. So . . . thanks! And, tell your friends . . . I really want to catch the good folks at the "Wills, Trusts, and Estates" blog.
Tuesday, March 29, 2011
The White House -- despite the occasional encouraging sign of openness to education reform -- continues to oppose even D.C.'s small experiment in school-choice for low-income kids in D.C. Sad.
UPDATE: The Washington Post gets it right.
We understand the argument against using public funds for private, and especially parochial, schools. But it is parents, not government, choosing where to spend the vouchers. Given that this program takes no money away from public or public charter schools; that the administration does not object to parents directing Pell grants to Notre Dame or Georgetown; and that members of the administration would never accept having to send their own children to failing schools, we don’t think the argument is very persuasive. Maybe that’s why an administration that promised never to let ideology trump evidence is making an exception in this case.
Villanova Law grad Gordon Cooney and his Morgan Lewis partner Michael Banks have long represented a Louisiana man, John Thompson, who spent 18 years in prison but was acquitted on retrial after a crime lab report that the prosecution had failed to disclose was discovered a month before his scheduled execution (Philadelphia Lawyer story here). The Morgan Lewis lawyers (including my friend and former White House colleague Allyson Ho) subsequently represented Thompson in a §1983 case against the Orleans Parish DA's office for the Brady violation, arguing that the Brady violation was caused by the DA's office’s "deliberate indifference" (the §1983 standard under Canton v. Harris, 489 U. S. 378 (1989)) to the requirement to train its prosecutors properly. The jury awarded Thompson $14 million, but today the Supreme Court ruled that the DA’s office cannot be held liable under §1983 for the Brady violation.
On the merits of the decision, I defer to those such as my colleague Teri Ravenell who know more about §1983 litigation. As a mere torts teacher, I thought one interesting aspect of the case was the view advanced by the Alliance Defense Fund and the Cato Institute in an amicus brief for the plaintiff (Thompson) that government entities’ liability under §1983 should follow common law respondeat superior principles and arguing that Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), should be overturned, though there were a host of state and local government interests lined up as amici on the other side (understandably) resisiting such an expansion of § 1983 liability. A sentence in footnote 12 of Justice Thomas's majority opinion settles that particular question: "We stand by the longstanding rule—reaffirmed by a unanimous Court earlier this Term—that to prove a violation of §1983, a plaintiff must prove that 'the municipality’s own wrongful conduct' caused his injury, not that the municipality is ultimately responsible for the torts of its employees."
Regardless of the outcome in the §1983 case, congratulations to Gordon, Allyson, Michael Banks, Ted Cruz, and the lawyers at Morgan Lewis for their persistent and courageous representation of Mr. Thompson over many years.
