Excerpted From: Shih-Chun Steven Chien, Cultivating Sense: Cultural Change in the Prosecutor's Office, 32 Minnesota Journal of International Law 1 (Spring, 2023) (352 Footnotes) (Full Document)


shihchunstevenchienProsecutors exercise broad discretion by putting the law into action. Their discretionary decisions shape the daily functioning of the criminal justice system. For years, scholars have been pondering how to control, sometimes even to eliminate, the exercise of prosecutorial discretion. Since the initiation of the American Bar Foundation (ABF) Survey of the Administration of Criminal Justice in the 1950s, the exercise and control of discretionary decisions made by prosecutors and other criminal justice agencies have become a central criminal justice policy issue. Since then, prosecutors have been seen as more than just “blind enforcers of the law.” One of the paradigm-shifting contributions of the ABF study was not only the discovery of discretion in the criminal justice system, but also the clear articulation that complete elimination of prosecutorial discretion is neither possible nor desirable.

Today, prosecutorial discretion is believed to be an essential component of the criminal justice system. Through the exercise of discretion, prosecutors can determine the number and nature of charges, allocate limited resources, and establish policy that sets priorities among offenders, offenses, and law enforcement strategies. In the face of the renewed concerns over social and racial justice, a growing number of elected chief prosecutors are reimagining their roles in the criminal justice system. Many of these newly elected D.A's consider themselves progressive reformers, indicating a different approach to their role. These newly elected prosecutors, and many other reform-minded incumbents, are often called “progressive prosecutors.” These prosecutors are beginning a movement that is trying to shake up business as usual. They are using their power to reinvent how prosecutors' jobs are done and to move beyond incarceration-driven approaches by developing policies and programs that offer more social services and diversion programs, bring transparency to their offices, address wrongful convictions, reform bail systems, and deal with racial disparities for a more equitable justice system. They are now pulling back from a mindless pursuit of more convictions and long sentences. Many commentators think that the movement marks a hopeful moment for changes in the criminal justice system.

However, challenging unjust laws and old practices may lead to intense backlash. Despite finding political success in local elections, many progressive leaders are facing pushback upon taking office as they quickly realize that getting everyone on the same page is not easy. Setting new priorities and policies does not necessarily mean the message will automatically trickle down. When reform-minded prosecutors announce policies that seem unprecedented, they are likely to encounter pushback that comes from both within and outside their offices.

A fundamental problem for chief prosecutors is how to exercise adequate control in their organizations in order to end draconian practices and to cultivate buy-in from line prosecutors. Many of the new progressive leaders have learned that they can write whatever policy memo or protocols they want and email them out to the entire staff. But that does not ensure that everyone will pay attention and follow them. Therefore, many of the new D.A's soon become aware of the importance for cultural change, and they come to believe they can serve as the stewards of a fundamental change to their office culture. After taking office, these progressive leaders want their own behaviors and mindsets to reverberate throughout the organization. They set policies and standards that seek to influence the ways that line prosecutors make decisions, hoping that a change in culture will follow suit.

“Culture eats policies for breakfast,” said one of the progressive prosecutors in a law school lunch talk, “culture is deep, extensive, and stable .... If you do not manage culture, it will manage you.” Indeed, while setting new office policy offers a formal logic for organizations. goals and orients prosecutors around them, this does not necessarily change the more elusive level of organizational behavior: its culture. Organizations are notoriously resistant to change. Change, if it comes, will not be immediate.

This Article seeks to construct a new normative paradigm for understanding organizational management and cultural change in prosecutors' offices by studying a group of reform-oriented prosecutors in the United States and a metropolitan prosecutor's office in Taiwan. In Part I, I first posit that the current conceptualization of cultural change is far too narrow and thus only accounting for an incomplete aspect of institutional change's rich and complex structure. Focusing on the “progressive prosecution movement” in the United States, this section presents two conventional theories of how a new culture is adopted by prosecutorial organizations. One considers culture as a particular “fit” between organizations and individuals and the other views culture as a means of formal institutional control. I argue that existing approaches are insufficient to explain the dynamic process of cultural change within a prosecutor's office.

Part II introduces my ethnographic case study of the Taiwan Office. This case study enables me to explore new theoretical concepts and normative framework with regard to institutional management in a prosecutor's office. Recognizing the differences between the two criminal justice systems, I demonstrate that the main features of the modern Taiwanese prosecutorial system--heightened external restrictions and scrutiny over prosecutors' power, a highly-structured internal bureaucratic management system, and the influence of the American legal system and legal profession--make the Taiwan Office ideal for comparative analysis and for constructing a comprehensive theory of institutional management and change in a modern prosecutorial organization.

Part III and Part IV illustrate that cultural change was built on the premise of the exercise of good sense. What binds a community of prosecutors together is a nuanced psychological process I refer to as sense-making. I argue that cultural change should be seen as a “jurisdictional battle” and that cultural change is manifested in this contested process. Culture, under my framework, is shaped during the process within which sense makers seek to construct their legitimate authority to sort individuals and to manage them accordingly. To change existing culture, sense makers must wield jurisdictional control over certain domains and be recognized as legitimate actors in a given field. Based on their expertise, knowledge, and legitimate status, sense makers exert power and influence over other individuals within certain professional jurisdictions and they may well undermine the legitimacy of other competing groups or of potential resistance. Thus, cultural change consists of actions of continuous boundary work that occur within a professional field. Under my processual model, this Article argues that prosecutors have three options to settle jurisdictional battles: (1) establish jurisdictional control by carving out new task domains (2) delegitimize existing sense makers by eliminating certain domains; and (3) coordinate with existing sense makers by maintaining or expanding current domains.

Part V makes normative and policy suggestions on how to reimagine prosecutorial organization in a post-bureaucratic context. I offer a critical cautionary tale by showing that even in an organization that largely operates in a hierarchical and rule-governed manner, cultural change involves a tacit process of management for which the conventional bureaucratic model fails to provide an accurate and comprehensive explanation. This Article warns that using culture as a strategic tool of institutional management may end up enabling the exercise of prosecutorial discretion to remain beneath the surface, raising potentially grave ethical concerns. Such a hidden system can be used by prosecutors--even well-intentioned, reform-minded individuals--to circumvent external oversight and create a veneer of legitimacy. This finding reveals an often-neglected limitation of existing tools designed to hold prosecutors accountable.

[. . .]

This Article has proposed a new conceptual paradigm for the study of cultural change and institutional management strategies in prosecutors' offices. The current climate of prosecutorial reform movements in the United States and Taiwan has made the need for empirically studying cultural change even more important and timely than ever before. Building on my comparative, in-depth case study of a district prosecutor's office in metropolitan Taiwan and a group of reform-oriented prosecutors' offices in the United States, my goal has been to dispel misconceptions surrounding conventional assumptions about the process of cultural change. The contested theoretical model outlined in the Article provides a deeper, more rounded, and persuasive approach to explain such a process. Cultural change, conceptualized as the inception of new sense makers in a field, is a dynamic process involving jurisdictional battles among competing sense makers for the recognition of their legitimate status. By interrogating the exercise of sense-making authority and the cultivation of individuals' good sense, this Article hopes to create a fuller, more nuanced picture of cultural change that can be leveraged by progressive reformers to drive internal changes in prosecutorial practices and by socio-legal scholars to establish new and more fruitful research agendas.

To a certain degree, of course, Taiwan is a unique case for the study of prosecutors given its complex political and legal context. The findings of this Article indicate that we still know very little about this particular outpost of the legal profession, let alone many others around the world. Yet I am hopeful that with this new (and developing) empirical knowledge about prosecutors, global society will be in a better position to tame what one interviewee portrayed to me as the “prosecutorial beast” in terms of exercising the immense (and easy to abuse) prosecutorial powers.

Meanwhile, the question that likely immediately occurs to a reader here is this: why should comparative scholars care about prosecutors in Taiwan?

My answer to this question is two-fold, both practical and structural: First, as a practical matter, Taiwan is a missing piece in the global puzzle of prosecutors. Multiple studies on prosecutors have revealed new dimensions of prosecution and have opened up a theory-driven, generalizable body of knowledge. However, attempts to build empirical literature, and sometimes a more general theory, on prosecution within the United States and cross-nationally, have failed to take East Asia into account adequately. Scholars have conducted a comparative dialogue on the prosecutorial function by looking at the European approach for similarities and contrasts. Decades of studies have explored the European criminal justice system in the hope of seeking insights and improvements for American criminal justice system. It was not until David Johnson published a series of writings on Japanese prosecutors that scholars began to notice the different faces of Asian prosecutorial practices. Although Japanese prosecutors have drawn much attention from U.S. scholars, “the Japanese ways of justice” are not necessarily representative of the rest of the jurisdictions in Asia, or even just East Asia, particularly those systems that have different cultural, political, and social foundations. Therefore, including Taiwan as a new case study will help researchers to better construct the typology of prosecution in a global context.

Second, as a structural matter, the study of Taiwanese prosecutors not only enriches our understanding of prosecutorial practices but also provokes a broader dialogue; it creates a framework for the comparative study of prosecution and provides possibilities for rethinking the development of the legal profession and for proposing future reform strategies. Cross-jurisdictional studies on prosecutors must pay attention to differences in prosecutors' socialization tactics. Depending on the legal, social, and cultural context within which a given prosecution operates, the justice system may or may not rely more on formal punishment than on shaming or other cultural/internal controls to deal with perceived deviant behaviors. A conceptual framework that enables scholars to understand deviant behaviors within the prosecution and the corresponding socialization tactics is greatly needed.

This Article has provided possible paths for future study on the sociology of prosecution and contributed to essential debates surrounding the conditions that make prosecutorial reforms successful. Moving beyond the United States and Taiwan, I hope this Article has successfully added a comparative perspective to ongoing dialogues among legal scholars and organizational sociologists on the study of the production--and reproduction--of one of the many elite cultures in the legal profession.

Assistant Professor of Law, Cleveland State University College of Law; Research Social Scientist, American Bar Foundation; JSD, Stanford Law School.