Law Commons^™

Trading A Confession For A Search: A Proposal To Deter Texting While Driving And Warrantless Cell Phone Searches, Adam Gershowitz

Adam M. Gershowitz

Dozens of state legislatures have recently criminalized texting while driving. Unfortunately, these statutes are deeply flawed because they are under-inclusive, ambiguous, and impose punishments so light that they are unlikely to deter drivers. At the same time, by criminalizing texting while driving, legislatures have empowered police to conduct warrantless searches of drivers’ cell phones under the Fourth Amendment’s search incident to arrest and automobile exceptions. The disconnect is stark: For a crime that carries a $20 fine in some states, police are free to search a driver’s text messages, emails, internet browsing history, facebook account, photos, and countless other applications …

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam Gershowitz

Adam M. Gershowitz

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, discovery obligations on prosecutors, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shockingly, these criminal procedure guarantees come almost entirely from Texas statutes approved by the Legislature, not activist rules imposed by judges. This article explores Texas’s reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough …

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam Gershowitz

Adam M. Gershowitz

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed. Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug …

12 Unnecessary Men: The Case For Eliminating Jury Trials In Drunk Driving Cases, Adam Gershowitz

Adam M. Gershowitz

Over the last few decades, states have imposed tougher punishments on drunk drivers. This article argues that increasing punishments is counterproductive. If legislatures are seeking to hold guilty offenders accountable and deter drunk driving, they should keep punishments low and instead abolish the right to jury trials. Under the petty offense doctrine, the Supreme Court has authorized states to abolish jury trials when defendants face a maximum sentence of six months' incarceration. Social science evidence has long demonstrated that judges are more likely to convict than juries, particularly in drunk driving cases. And researchers have also found that the certainty …

Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Adam Gershowitz

Adam M. Gershowitz

Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. …

Statewide Capital Punishment: The Case For Eliminating Counties' Role In The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the …

Prosecutorial Shaming, Adam M. Gershowitz

Adam M. Gershowitz

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

The Iphone Meets The Fourth Amendment, Adam M. Gershowitz

Adam M. Gershowitz

Imagine that Dan Defendant is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe he has done anything illegal, other than driving recklessly. Nevertheless, because running a stop sign is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation.

Under the search incident to arrest doctrine, officers are entitled to search the body of the arrestee to ensure that he does not have weapons or will not destroy …

An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz

Adam M. Gershowitz

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America’s jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Adam M. Gershowitz

Almost everyone agrees that indigent defense in America is under-funded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to “beyond all doubt” to convict indigent defendants. The …