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Full-Text Articles in Law
“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin
“Progressive” Prosecutors And “Proper” Punishments, Benjamin Levin
Scholarship@WashULaw
After decades of relative inattention to prosecutorial elections, academics and activists recently have focused on “progressive prosecutors” as a promising avenue for criminal justice reform. That said, the growing literature on progressive prosecutors reflects little clarity about what makes a prosecutor “progressive.” Recent campaigns suggest disparate visions of how to operationalize “progressive prosecution.” In this chapter, I describe four ideal types of progressive prosecutor: (1) the progressive who prosecutes, (2) the proceduralist prosecutor, (3) the prosecutorial progressive, and (4) the anti-carceral prosecutor. Looking to sentencing policy as a case study, I examine how these different ideal types illustrate different visions …
Prosecuting The Crisis, Benjamin Levin
Prosecuting The Crisis, Benjamin Levin
Scholarship@WashULaw
Over the past decade, activists and academics have celebrated the rise of the so-called “progressive prosecutor” movement. District attorney candidates—often former public defenders or civil rights lawyers—have promised to use prosecutorial discretion to address the injustices of the criminal system. A proliferation of such campaigns, and the electoral successes of some of these candidates have raised questions about progressive prosecution: what does it actually mean to be a progressive prosecutor? Does progressive prosecution work? Do progressive candidates follow through on campaign promises? And, how enthusiastic should defense attorneys, reformers, and critics of the carceral state be about progressive prosecution? The …
Victims’ Rights Revisited, Benjamin Levin
Victims’ Rights Revisited, Benjamin Levin
Scholarship@WashULaw
This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …
Criminal Law In Crisis, Benjamin Levin
Criminal Law In Crisis, Benjamin Levin
Scholarship@WashULaw
In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …
Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell
Tradeoffs Between Wrongful Convictions And Wrongful Acquittals: Understanding And Avoiding The Risks, Paul Cassell
Utah Law Faculty Scholarship
This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor …