Digital Commons Network^™

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …

Martyrdom And Criminal Defense, Abbe Smith

Georgetown Law Faculty Publications and Other Works

According to research on the emotional well-being of lawyers, public defenders may be among the happiest. This comports with my own anecdotal experience as a teacher and mentor of law students and post-graduate fellows interested in criminal defense, many of whom are now career defenders. They may be deeply frustrated by the system in which they work, but they are happy to do what they can to make a difference for their clients. They also adore their defender colleagues. My former students and fellows in large law firms don’t seem quite as happy.

Notwithstanding the data, there seems to be …

Can You Be A Feminist And A Criminal Defense Lawyer?, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Young people in the current cultural generation seem to like the word “literally.” They use it often and with great feeling, though not necessarily accurately. Law students will exclaim, for example, that the length of reading assignments is “literally killing them.” Young public defenders will complain that judges and prosecutors are “literally driving them crazy.” My son sometimes claims that he is “literally starving to death.” I can’t help replying to each, “Well, maybe not literally

But the answer to the question I pose in this Essay is literally self-evident, for I am both a feminist and a criminal defense …

Restoring The Historical Rule Of Lenity As A Canon, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

In criminal law, the venerated rule of lenity has been frequently, if not consistently, invoked as a canon of interpretation. Where criminal statutes are ambiguous, the rule of lenity generally posits that courts should interpret them narrowly, in favor of the defendant. But the rule is not always reliably used, and questions remain about its application. In this article, I will try to determine how the rule of lenity should apply and whether it should be given the status of a canon.

First, I argue that federal courts should apply the historical rule of lenity (also known as the rule …

Down To The Last Strike: The Effect Of The Jury Lottery On Criminal Convictions, Scott Kostyshak, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

How much does luck matter to a criminal defendant in a jury trial? We use rich data on jury selection to causally estimate how parties who are randomly assigned a less favorable jury (as proxied by whether their attorneys exhaust their peremptory strikes) fare at trial. Our novel identification strategy uniquely captures variation in juror predisposition using data unobserved by the econometrician but observed by attorneys. Criminal defendants who lose the “jury lottery” are more likely to be convicted than similarly-situated counterparts, with a significant increase (18-20 percentage points) for Black defendants. Our results are robust to alternate specifications and …

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration, …

Against Life Without Parole, Judith Lichtenberg

Georgetown Law Faculty Publications and Other Works

Over 40,000 people in the United States today are serving life without parole sentences (LWOP)—more than triple the number in 1992. This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it. I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it. So we can reject LWOP without abandoning retributivism—an important …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Why Care About Mass Incarceration?, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences—including being prosecuted for a crime himself—eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing …

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical …

What’S Wrong With Victims’ Rights In Juvenile Court?: Retributive V. Rehabilitative Systems Of Justice, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

While scholars have written extensively about the victims’ rights movement in capital and criminal cases, there has been very little discussion about the intersection of victims’ rights and the juvenile justice system. Statutes that allow victims to attend juvenile hearings and present oral and written impact statements have shifted the juvenile court’s priorities and altered the way judges think about young offenders. While judges were once primarily concerned with the best interests of the delinquent child, victims’ rights legislation now requires juvenile courts to balance the rehabilitative needs of the child with other competing interests such as accountability to the …

Can Our Shameful Prisons Be Reformed?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Difference In Criminal Defense And The Difference It Makes, Abbe Smith

Georgetown Law Faculty Publications and Other Works

My own view of criminal defense lawyering owes much to Monroe Freedman. I agree with his "traditionalist view”, of criminal defense ethics as a lawyering paradigm in which zealous advocacy and the maintenance of client confidence and trust are paramount. Simply put, zeal and confidentiality trump most other rules, principles, or values. When there is tension between these "fundamental principles” and other ethical rules, criminal defense lawyers must uphold the principles, even in the face of public or professional outcry. Although a defender must act within the bounds of the law, he or she should engage in advocacy that is …

No Equal Justice, David Cole

Georgetown Law Faculty Publications and Other Works

I argue that while our criminal justice system is explicitly based on the premise and promise of equality before the law, the administration of criminal law—whether by the officer on the beat, the legislature, or the Supreme Court—is in fact predicated on the exploitation of inequality. My claim is not simply that we have ignored inequality’s effects within the criminal justice system, nor that we have tried but failed to achieve equality there. Rather, I contend that our criminal justice system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy as much constitutional …

Legitimating The Illegitimate: A Comment On 'Beyond Rape', Robin West

Georgetown Law Faculty Publications and Other Works

Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.

Furthermore, according to Dripps, …

Some Themes In The Proposed Federal Rules Of Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Although the Federal Rules of Evidence are under consideration by Congress, it is unlikely that many of their major themes will be reversed. The present article examines some of these themes as they appear in the Supreme Court-approved draft. The aim is merely to make more explicit the effects of the Rules and suggest some questions for study.