Is a Work Performance Bonus a Good Idea?

From The Faculty Lounge:

[A chief prosecutor] paid bonuses last year to felony prosecutors who won convictions in at least 70 percent of their cases. They were required to have tried at least five cases, and plea bargains and mistrials didn’t count. Prosecutors assigned to complex trials were exempted. The average bonus paid was $1,100.

I applaud the concept of trying to pay your best employees a bonus at the end of the year. However, I have my doubts as to whether the best prosecutors will get this bonus.

In reality, this bonus would not affect the majority of prosecutors. They would go on doing their job in the manner they always have and let the cards fall where they may. However, every profession has its share of ethically challenged. Of course, we on the prosecutorial side of the courtroom have so few that it might be said that they are a vanishingly small number, but I'll assume their existence just to discuss this bonus program.

To begin with, if a prosecutor is doing her job with even a little bit of competence, the vast majority of all cases are going to settle. Of course, none of these cases will count toward the bonus. This is a flaw. In general, it's the uncertain cases which go to trial. The prosecutor is convinced of guilt, but the evidence might not be so strong as to make the case a slam dunk. On the defense side, one of the factors to be taken into consideration is the perceived capability of the prosecutor in the case. If John Smith has a reputation as winning almost every jury he's ever tried, the defense attorney is less likely to recommend a jury trial for his defendant. Thus, established, competent prosecutors are less likely to get the bonus because they are known to be competent.

On the other hand, a prosecutor who wanted that bonus, but had concerns that the case is a close call, has an incentive to dump the case. This incentive has nothing to do with whether the defendant is guilty; it has to do with the prosecutor wanting the money. Thus, the aggravated snipe hunting case gets reduced to misdemeanor snipe hunting and probation because the prosecutor thinks he has only a 60% chance of winning the case and any loss counts against his bonus.

Another effect of this would be a shifting of defendants' incarceration lengths from those with harder evidentiary cases to those with easier evidentiary cases. In Virginia we have sentencing guidelines. Let's say that Defendant's sentencing guidelines for embezzling $5,000 from a local church and shoplifting a pair of $250 boots from Wonder-Mart are the same: from 7 months to 1 year and 5 months with a mid-point of 1 year. Typically, a defendant pleading straight guilty is sentenced by the judge to the mid-point. Thus, the current incentive is for the prosecutor to offer some sort of discount in order to get the defendant to plead guilty; in this case we'll operate on an assumption that the prosecution would offer a 3 month discount (a plea offer of 9 months).

The embezzlement case is harder to prove. The records are voluminous and will bore the jury to tears. The defendant is the beloved coach of Pitcairn High's football team. The defendant's psychiatrist is claiming he suffers from post traumatic stress from losing last year's state football championship when the ref made a bad call. None of this makes Defendant any less guilty, but it could all make the case more difficult. On the other hand, the shoplifter comes from the Greene family (whom everybody in Pitcairn County knows are crooks), is on video doing the crime, and confessed.

The prosecutor, realizing the first case will be difficult and influenced by his desire to get that bonus, offers the low end of the guidelines to Embezzler; the prosecutor may even agree to a sentence below the guidelines. In the end, Embezzler gets 6 months, instead of 9, and Prosecutor's conviction record is safe. As for Shoplifter, the prosecutor really wants her to go to trial. In fact, the bonus provides an incentive for the prosecutor not to offer any deal at all. As well, if the defendant pleads straight guilty to the judge, the prosecutor is then incenitivized to push the judge to a sentence higher than the mid-point in order to make future defendants not want to plead straight guilty and perhaps influence them into taking jury trials. Assuming the prosecutor does not want to be too obvious, he will probably make some sort of offer, but it will be what everyone expects the judge to offer or perhaps very slightly less. He just wants enough easily convicted defendants to choose a trial so that he can boost his convictions - not enough that he is having a jury trial every other day. So, Shoplifter gets 12 months or maybe 11, instead of 9. Of course, there is always an incentive to offer a little better deal in any hard case, but at least without this bonus system there's no reason to increase the offered sentence in easy cases.

I laud the chief prosecutor for trying to reward good work. Any kind of bonus system is going to be difficult to justify. If the chief prosecutor hands out bonuses based solely upon his belief as to who has done the best work he is likely to cause bad feelings in the office as prosecutors perceive that he is playing favorites. On the other hand, any metric he lays out can be gamed so that the individual prosecutors act to enrich themselves rather than seek justice. Personally, I don't think the bonuses offered in this scheme are enough to influence prosecutors throughout the entire year, but there will always be the suspicion. Maybe the only way a bonus system could work is if the same bonus is given to each prosecutor depending upon the prosecutor's level in the office hierarchy.