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Some reflections on the economics of prosecutors: Mandatory v selective prosecution


  • Nuno Garoupa

    () (University of Illinois and IMDEA Social Sciences)


Mandatory prosecution is inefficient according to legal economists. We argue that when prosecutors are fairly insulated from their performance or are highly risk averse mandatory prosecution is better than selective prosecution. This result has important implications for comparative law since mandatory prosecution generally prevails in civil law jurisdictions whereas selective prosecution is typical of common law jurisdictions.

Suggested Citation

  • Nuno Garoupa, 2008. "Some reflections on the economics of prosecutors: Mandatory v selective prosecution," Working Papers 2008-04, Instituto Madrileño de Estudios Avanzados (IMDEA) Ciencias Sociales.
  • Handle: RePEc:imd:wpaper:wp2008-04

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    References listed on IDEAS

    1. Malcolm B. Coate & Andrew N. Kleit, 1998. "Does it matter that the prosecutor is also the judge? The administrative complaint process at the Federal Trade Commission," Managerial and Decision Economics, John Wiley & Sons, Ltd., vol. 19(1), pages 1-11.
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    4. Manu Raghav, 2006. "Why do budgets received by state prosecutors vary across districts in the United States?," Caepr Working Papers 2006-018, Center for Applied Economics and Policy Research, Economics Department, Indiana University Bloomington.
    5. Boari, Nicola & Fiorentini, Gianluca, 2001. "An economic analysis of plea bargaining: the incentives of the parties in a mixed penal system," International Review of Law and Economics, Elsevier, vol. 21(2), pages 213-231, June.
    6. Eric Rasmusen & Manu Raghav & Mark Ramseyer, 2009. "Convictions versus Conviction Rates: The Prosecutor's Choice," American Law and Economics Review, Oxford University Press, vol. 11(1), pages 47-78.
    7. Bjerk, David, 2005. "Making the Crime Fit the Penalty: The Role of Prosecutorial Discretion under Mandatory Minimum Sentencing," Journal of Law and Economics, University of Chicago Press, vol. 48(2), pages 591-625, October.
    8. Froeb, Luke M. & Kobayashi, Bruce H., 2001. "Evidence production in adversarial vs. inquisitorial regimes," Economics Letters, Elsevier, vol. 70(2), pages 267-272, February.
    9. Richard T. Boylan, 2005. "What Do Prosecutors Maximize? Evidence from the Careers of U.S. Attorneys," American Law and Economics Review, Oxford University Press, vol. 7(2), pages 379-402.
    10. Anne van Aaken & Lars P. Feld & Stefan Voigt, 2008. "Power over Prosecutors Corrupts Politicians: Cross Country Evidence Using a New Indicator," MAGKS Papers on Economics 200801, Philipps-Universität Marburg, Faculty of Business Administration and Economics, Department of Economics (Volkswirtschaftliche Abteilung).
    11. Nuno Garoupa & Frank H Stephen, 2008. "Why plea-bargaining fails to achieve results in so many criminal justice systems: A new framework for assessment," Working Papers 2008-02, Instituto Madrileño de Estudios Avanzados (IMDEA) Ciencias Sociales.
    12. Boylan, Richard T, 2004. "Salaries, Turnover, and Performance in the Federal Criminal Justice System," Journal of Law and Economics, University of Chicago Press, vol. 47(1), pages 75-92, April.
    13. Boylan, Richard T & Long, Cheryl X, 2005. "Salaries, Plea Rates, and the Career Objectives of Federal Prosecutors," Journal of Law and Economics, University of Chicago Press, vol. 48(2), pages 627-651, October.
    14. Palumbo, Giuliana, 2006. "Optimal duplication of effort in advocacy systems," Journal of Economic Behavior & Organization, Elsevier, vol. 60(1), pages 112-128, May.
    15. William M. Landes, 1974. "An Economic Analysis of the Courts," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 164-214 National Bureau of Economic Research, Inc.
    16. Anne Van Aaken & Eli Salzberger & Stefan Voigt, 2004. "The Prosecution of Public Figures and the Separation of Powers. Confusion within the Executive Branch -- A Conceptual Framework," Constitutional Political Economy, Springer, vol. 15(3), pages 261-280, September.
    17. Shepherd, Joanna M, 2002. "Police, Prosecutors, Criminals, and Determinate Sentencing: The Truth about Truth-in-Sentencing Laws," Journal of Law and Economics, University of Chicago Press, vol. 45(2), pages 509-534, October.
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    Cited by:

    1. SIDDHARTHA BANDYOPADHYAY & BRYAN C. McCANNON, 2015. "Prosecutorial Retention: Signaling by Trial," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 17(2), pages 219-256, April.
    2. Echazu, Luciana & Garoupa, Nuno, 2012. "Why not adopt a loser-pays-all rule in criminal litigation?," International Review of Law and Economics, Elsevier, vol. 32(2), pages 233-241.
    3. Dhammika Dharmapala & Nuno Garoupa & Richard H. McAdams, 2016. "Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure," The Journal of Legal Studies, University of Chicago Press, vol. 45(1), pages 105-141.
    4. Matteo Rizzolli & Margherita Saraceno, 2013. "Better that ten guilty persons escape: punishment costs explain the standard of evidence," Public Choice, Springer, vol. 155(3), pages 395-411, June.

    More about this item


    prosecutors; mandatory prosecution; selective prosecution; civil law; common law;

    JEL classification:

    • K4 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior

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