Ethics of Prosecution

This article considers the codes of conduct of professionals carrying out prosecution work, and obedience to these codes. Such codes are referred to as the “legal ethics” of the respective professions. Three codes of conduct apply: The Code for Crown Prosecutors, the Solicitors Code of Conduct and the Code of Conduct for the Bar.Paper delivered by Professor Avrom Sherr, Director, Institute of Advanced Legal Studies as Woolf Chair in Legal Education at a Public Lecture, at the IALS in 1998

Do Heads Roll? An Empirical Analysis of CEO Turnover and Pay When the Corporation is Federally Prosecuted

Does the criminal prosecution of a corporation affect the CEO? Or do criminal actions directed at the organization itself pose few consequences for the individuals at the top, and the CEO in particular? While CEOs are rarely themselves prosecuted, organizations could discipline CEOs through paycuts or outright replacing the CEO in response to a criminal prosecution. We sought to examine whether and how that occurs. We focus our analysis on a dataset of public companies that settled criminal cases brought by federal prosecutors from 2000-2014. We compared those companies to the larger set of companies in the Execucomp database of S&P 1500 firms, focusing on CEO compensation and turnover during the same time period. We examined the time period before and after prosecution, and the year that the company resolved the criminal charges against the company. We found that in the year that the company settled its prosecution, through a guilty plea or a deferred or non-prosecution agreement, there was a significantly higher level of CEO turnover. However, we do not find evidence of CEO pay cut. Second, for the prosecuted firms that did not have CEO turnover after prosecution, there is no evidence of a reduction in compensation. Indeed, we observed a spike in CEO bonuses in the year of prosecution—confirming concerns expressed by judges, prosecutors, lawmakers, and academics that corporate prosecutions do not sufficiently impact high-level decision-makers like CEOs. For the prosecuted firms that did have CEO turnover after prosecution, there is some evidence of a pay cut, both to salary and bonus, prior to the replacement of the CEO. These results raise larger questions whether federal prosecutors targeting the most serious corporate crimes sufficiently incentivize accountability at the top

Controlling Patent Prosecution History

[Excerpt] “One of the most salient effects of patent prosecution history arises in the context of the doctrine of equivalents. Under that doctrine, although patent claims may be found to be broader than their literal scope, territory surrendered during prosecution cannot be encompassed as equivalent. Nor can territory forfeited by initial failure to claim be captured under the doctrine of equivalents. Most attorneys who prosecute applications are apt to be aware of such problems and to take measures to avoid them.

Power over Prosecutors Corrupts Politicians: Cross Country Evidence Using a New Indicator

It is hypothesized that prosecution agencies that are dependent on the executive have less incentives to prosecute crimes committed by government members which, in turn, increases their incentives to commit such crimes. Here, this hypothesis is put to an empirical test focusing on a particular kind of crime, namely corruption. In order to test it, it was necessary to create an indicator measuring de jure as well as de facto independence of the prosecution agencies. The regressions show that de facto independence of prosecution agencies robustly reduces corruption of officials.Corruption, Prosecution Agencies, Judicial Independence and Positive Constitutional Economics

Power over Prosecutors Corrupts Politicians: Cross Country Evidence Using a New Indicator

It is hypothesized that prosecution agencies that are dependent on the executive have less incentives to prosecute crimes committed by government members which, in turn, increases their incentives to commit such crimes. Here, this hypothesis is put to an empirical test focusing on a particular kind of crime, namely corruption. In order to test it, it was necessary to create an indicator measuring de jure as well as de facto independence of the prosecution agencies. The regressions show that de facto independence of prosecution agencies robustly reduces corruption of officials.corruption, prosecution agencies, judicial independence and positive constitutional economics

The enforcement of environmental law: civil or criminal penalties?

In the United Kingdom, regulatory bodies have traditionally relied on the use of the criminal law to protect the environment. Although the officials employed by these agencies may have regarded it as the ‘last resort’, prosecution – or at least the threat of prosecution – has always been in the background. ‘Civil’ or ‘administrative’ sanctions have rarely been used. This situation may be about to change

Case Attrition of Sexual Violence Offenses: Empirical Findings

Originally published in the Alaska Justice Forum 25(1–2): 1, 18–20 (Spring 2008-Summer 2008).This report examined the legal resolutions for 1,184 contact sexual violence cases reported to Alaska State Troopers in 2003 and 2004, and excluded results from other law enforcement agencies. We determined whether cases were founded with an identifiable suspect, were referred to the Alaska Department of Law for prosecution, were accepted for prosecution, and if the case resulted in a conviction. We only examined whether any conviction on any charge was obtained. In some cases, the conviction may be for a non-sexual offense. * Seventy-five percent of cases were founded with at least one identifiable suspect, 51% of founded cases were referred to the Alaska Department of Law for prosecution, 60% of referred cases were accepted for prosecution, and 80% of accepted cases resulted in a conviction on at least one charge. The greatest point of attrition was from the founding to the referral decision. * For the most part, cases of Alaska Native victims were as likely, or even more likely, to be processed by the criminal justice system relative to the cases of non-Native victims. * Cases of sexual violence in the most rural portions of Alaska had an equal or greater chance of being subject to legal sanction when compared with cases from Alaska's less rural areas, and were as likely or more likely to receive full enforcement and prosecution. Unfortunately, the percentage of founded cases that resulted in a conviction never exceeded 30%

Assessing evidence and testing appropriate hypotheses

It is crucial to identify the most appropriate hypotheses if one is to apply probabilistic reasoning to evaluate and properly understand the impact of evidence. Subtle changes to the choice of a prosecution hypothesis can result in drastically different posterior probabilities to a defence hypothesis from the same evidence. To illustrate the problem we consider a real case in which probabilistic arguments assumed that the prosecution hypothesis “both babies were murdered” was the appropriate alternative to the defence hypothesis “both babies died of Sudden Infant Death Syndrome (SIDS)”. Since it would have been sufficient for the prosecution to establish just one murder, a more appropriate alternative hypothesis was “at least one baby was murdered”. Based on the same assumptions used by one of the probability experts who examined the case, the prior odds in favour of the defence hypothesis over the double murder hypothesis are 30 to 1. However, the prior odds in favour of the defence hypothesis over the alternative ‘at least one murder’ hypothesis are only 5 to 2. Assuming that the medical and other evidence has a likelihood ratio of 5 in favour of the prosecution hypothesis results in very different conclusions about the posterior probability of the defence hypothesis

Race and Prosecution in Manhattan

This report summarizes a two-year study which analyzed more than 200,000 cases. It focuses on the role of prosecutors during several points of a criminal case -- case acceptance for prosecution, dismissals, pretrial detention, plea bargaining, and sentencing recommendations -- and whether prosecutorial discretion contributes to racially and ethnically disparate outcomes. While the best predictors of case outcomes were factors that directly pertained to legal aspects of a case -- including the seriousness of the charge, the defendant's prior record, and the offense type -- the research also found that race remained a factor in case outcomes