In Search of Profits: The Outsourced Prosecutor

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Ferguson Solidarity protest in DC, 2012. Photo by Johnny Silvercloud via Flickr

A month after the shooting death of Michael Brown, an unarmed African-American youth, by a Ferguson, MO police officer,  the Department of Justice launched an investigation that exposed  the questionable  law enforcement practices of the Ferguson Police Department, highlighting their focus on generating revenue for the city.

However, according to a report by Maybell Romero of J. Reuben Clark Law School at Brigham Young University, this intense scrutiny of Ferguson’s profit-based approach to law enforcement largely ignored the role of Ferguson’s then city prosecutor, Stephanie Karr in these practices.

The study noted that prosecutors like Stephanie Karr are hired “through a competitive bidding process where cost-savings, 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.”  Such outsourcing sets a dangerous precedent, says the study, entitled, Profit Driven Prosecution and the Competitive Bidding Process, because it focuses a prosecutor’s attention on efficiency and revenue generation, rather than the pursuit of justice.

“The use of outsourced prosecution services, particularly those hired through an RFP/competitive [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,” says the study.

The risks are further precipitated by an apparent lack of public understanding of how criminal justice works on a local—rather than federal or state government—level.

“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,” says the study.

In fact, on the local level, prosecutors aren’t elected at all.

In order to help the reader understand the particular risks inherent to hiring prosecutors through RFPs, the study is divided into three major sections.

  • A general perspective showing how the American prosecutor’s role has evolved, including the use of different methods of compensation.
  • An overview of prosecution outsourcing, examining the challenges faced by local governments that encourage privatization as a means of saving costs and generating revenue.
  • An examination of the incentives and disincentives on the part of prosecutors, local governments, mayors, and executives to concern themselves with bottom lines rather than providing services focused on serving justice to the public.

The study, citing examples from Wyoming, Minnesota and Kansas, among others, concludes that further examination of the pitfalls of employing RFPs for prosection in many smaller jurisdictions around the country is necessary if the prospective dangers are to be averted.

It goes on to warn that while the problems that arise from this process may seem far removed from those living in large cities, the recent national demand for a devolution of governmental responsibilities to local governments could  spread the practice more widely.






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