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Why Prosecutors Rule The Criminal Justice System—And What Can Be Done About It, Jed S. Rakoff
Why Prosecutors Rule The Criminal Justice System—And What Can Be Done About It, Jed S. Rakoff
Northwestern University Law Review
Most recognize that federal and state laws imposing high sentences and reducing judicial sentencing discretion have created America’s current plague of mass incarceration. Fewer realize that these draconian laws shift sentencing power to prosecutors: defendants fear the immense sentences they face if convicted at trial, and therefore actively engage in the plea-bargaining process. This allows prosecutors, rather than judges, to effectively determine the sentences imposed in most cases, which creates significant sentencing discrepancies that most often are unrecorded and cannot be measured. This Essay proposes a solution that would not require legislative change to be put into effect: to have …
Restoring Democratic Moral Judgment Within Bureaucratic Criminal Justice, Stephanos Bibas
Restoring Democratic Moral Judgment Within Bureaucratic Criminal Justice, Stephanos Bibas
Northwestern University Law Review
While America's criminal justice system is deeply rooted in the ideal of a popular morality play, it has long since drifted into becoming a bureaucratic plea bargaining machine. We cannot (and would not want to) return to the Colonial Era. Even so, there is much more we can do to reclaim our heritage and incorporate popular participation within our lawyer-run system. That requires pushing back against the relentless pressures toward efficiency and maximizing quantity, to ensure that criminal justice treats each criminal with justice, as a human and not just a number. The criminal justice system must narrow its ambitions …