Digital Commons Network^™

Reform Prosecutors And Separation Of Powers, Logan E. Sawyer Iii

Scholarly Works

For decades, state and local prosecutors won election by promising to be tough on crime. Today, a new breed of prosecutor has gained prominence by campaigning on, and then implementing, reform agendas. Rather than emphasize the crimes they plan to prosecute, these reform prosecutors promise to use their discretion to stop the prosecution of certain crimes and halt the application of certain sanctions. They base their decision not on a lack of resources, but rather on a belief that the enforcement of those laws is unwise or unjust. Critics have decried such policies as both inappropriate and undemocratic. Prosecutors, critics …

Sanctuaries As Equitable Delegation In An Era Of Mass Immigration Enforcement, Jason A. Cade

Scholarly Works

Opponents of—and sometimes advocates for—sanctuary policies describe them as obstructions to the operation of federal immigration law. This premise is flawed. On the better view, the sanctuary movement comports with, rather than fights against, dominant new themes in federal immigration law. A key theme—emerging both in judicial doctrine and on-the-ground practice—focuses on maintaining legitimacy by fostering adherence to equitable norms in enforcement decision-making processes. Against this backdrop, the sanctuary efforts of cities, churches, and campuses are best seen as measures necessary to inject normative (and sometimes legal) accuracy into real-world immigration enforcement decision-making. Sanctuaries can erect front-line equitable screens, promote …

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

Scholarly Works

This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing …

Proportionality Lost? The Rise Of Enforcement-Based Equity In The Deportation System And Its Limitations, Jason A. Cade

Scholarly Works

This article briefly explains and critiques the legal framework that has made enforcement discretion the primary means of injecting proportionality and fairness into the modern deportation system. The article provides an overview of shifting approaches to this enforcement discretion under the Obama and Trump administrations, and describes some of the key Supreme Court jurisprudence interpreting this framework.

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Challenge Of Seeing Justice Done In Removal Proceedings, Jason A. Cade

Scholarly Works

Prosecutorial discretion is a critical part of the administration of immigration law. This Article considers the work and responsibilities of the Immigration and Customs Enforcement (ICE) trial attorneys, who thus far have not attracted significant scholarly attention, despite playing a large role in the ground-level implementation of immigration law and policy. The Article makes three main contributions. First, I consider whether ICE attorneys have a duty to help ensure that the removal system achieves justice, rather than indiscriminately seek removal in every case and by any means necessary. As I demonstrate, trial attorneys have concrete obligations derived from statutory provisions, …

The Plea Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Scholarly Works

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen’s low-level conviction will not reliably indicate guilt …