Charging sex traffickers under federal law: What dispositions should we expect when applying theories on prosecutorial decision‐making?

Abstract

Previous research on prosecutorial decision-making has detailed prosecutors' considerable discretionary power along with their desire to avoid uncertain outcomes. However, few studies have applied this decision-making framework to criminal case outcomes. We addressed this gap by analyzing prosecutors' charging decisions and charge dispositions through the lens of a unique crime: sex trafficking. In the study, we examined whether the type of statute under which federal prosecutors may choose to charge defendants in sex trafficking-related cases is associated with the disposition of those charges. We used datasets from the Federal Justice Statistics Program for years 1994-2014 in multilevel logistic regession models that adjusted for factors relevant to prosecutorial decision-making. We then compared the dispositions of charges filed in sex trafficking-related cases and asked: Are charges filed under higher-penalty statutes significantly associated with dispositions that are more favorable to the prosecution? Or is the association present for lower-penalty statutes instead? Results from our first model, using a dataset with all available charges and dispositions for a 21-year period, show that when a charge is filed under a higher-penalty statute, the adjusted odds that its disposition is more favorable to the prosecution are about 60% higher than the odds for charges filed under lower-penalty statutes. Results from a subset of charge data linked to demographic characteristics show that the adjusted odds of obtaining a favorable charge disposition are 65% lower when the defendant is female. These associations suggest that higherpenalty statutes in sex trafficking-related cases, with their concomitant higher burdens of proof, do not necessarily implicate greater uncertainty in outcomes. Prosecutors have been using their discretion to charge under the more punitive statutes for many years and these cases have relatively high probabilities of favorable outcomes. This discretion may nevertheless be curbed by defendant characteristics beyond the prosecutor's control, including gender.