SOCIETÀ ITALIANA DI DIRITTO ED ECONOMIA
maurizio caserta (university of catania)
Massimiliano Marletta (university of catania)
Abstract
The economic literature has mostly focused on the analysis of judges’ behavior, paying little attention to prosecutorial decision-making. This is based on the assumption that only judges play a vital role in ensuring the quality of jurisdiction. In the case of criminal courts this is obviously half-true. The quality and efficiency of criminal justice depends on judges as well as on prosecutors.
The formalistic approach to law represents politicians, judges and prosecutors as benevolent players who act only according to the public interest. Political Economy scholars, however, have emphasized that none of them is a hero, but just human beings who make decisions following also their self-interest. In the case of judges and prosecutors it is generally acknowledged that their decisions depend also on factors other than the law, like ideology, personal beliefs, career prospects and ambitions. If such a view is accepted one should also recognize that a incentive misalignment is possible, and that what drives judges’ and prosecutors’ behavior may not help delivering good jurisdiction.
However, judges and prosecutors perform different jobs. The set of constraints and incentives they find themselves to work with are quite different. This paper focuses on the job of prosecutors and looks at a possible misalignment of incentives in their work. It was Gary Becker (1968) who first looked at the costs and benefits of the public prosecution of crimes. His contribution is still valuable today; he clearly emphasized that prosecutors’ behavior impacts on the efficiency of the justice system as a whole.
The aim of criminal justice is to convict the guilty and to acquit the non-guilty. For the whole system to deliver this result all players should act in such a way as to make this result possible. This may not necessarily be true. We look at the Italian criminal justice system where public prosecutors are expected to pursue as many convictions as possible. We will show that this is a clear incentive misalignment that endangers the good working of the system. Some discussion of desirable policies will follow.