What do Prosecutors Want? : Mapping Institutional Incentives

Abstract

Much ink has been spilled over judicial behaviour, but the behaviour of public prosecutors has received less attention in the literature. This paper asks whether existing models of judicial behaviour can be used to analyze public prosecutors. In most democracies, judges are neither politicians nor bureaucrats. Differently from politicians, judges are neither regularly subjected to popular scrutiny via elections, nor organized around political parties. Differently from bureaucrats, judges are not acting as agents of a principal, and are not hierarchically subordinated to other actors. Considering these differences, to explore judicial behaviour the specialized literature has developed theoretical and methodological tools different from those used to study politicians and bureaucrats. Could any of these models be used to explain the behaviour of public prosecutors? Considering that the institutional design of public prosecutors’ offices varies significantly across democratic systems, we argue that models of judicial behaviour would only be helpful in cases in which there is institutional autonomy, as in the Italian and Brazilian Public Prosecutor’s Offices. Yet, even in these cases, numerous caveats are required. For instance, in the case of Brazil, levels of independence vary: it is ensured for street-level prosecutors, but not necessarily for the head of the institution. We provide a case of study of Brazil to further explore such limitations.