Legal Profession Commons^™

Sacrificing Quantity For Quality: Better Focusing Prosecutors' Scarce Resources, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Adam Gershowitz’s and Laura Killinger’s article The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants. The authors rightly argue that prosecutorial overwork harms justice in any number of ways: it delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants. The root problem, however, is less about underfunding than about skewed priorities and metrics of success. Too often, prosecutors do not think strategically about using their discretion to proactively set priorities and focus on system-wide tradeoffs. Throwing money at the problem would …

The Pitfalls Of Professionalized Prosecution: A Response To Josh Bowers's "Legal Guilt, Normative Innocence, And The Equitable Decision Not To Prosecute", Stephanos Bibas

All Faculty Scholarship

This short essay responds to Josh Bowers’ article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute. While most scholars focus on the most visible injustices in the most serious cases, Bowers rightly notes that this sliver of serious felonies is dwarfed by the mountain of minor, low-visibility misdemeanors and violations. Prosecutors are reasonably good at classifying crimes based on legal guilt and administrative criteria, but are far worse at weighing all the particulars and exercising equitable discretion. Our consistent faith in prosecutors’ expertise, Bowers argues, is not only misguided but backwards; we should value outsiders’ fresh …

Criminal Acts & Ethical Dilemmas: Some Client Nightmares Sneak Up On You, Barbara Glesner Fines

Faculty Works

No abstract provided.

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

The Need For Prosecutorial Discretion, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

International Bridges To Justice (Ibj) - Criminal Defence Training, Lien Centre For Social Innovation

Social Space

Criminal justice systems across the world continue to be plagued by problems such as arbitrary detention, torture and an inadequate knowledge of the rights of defendants. IBJ hopes to establish a legal resource hub for criminal defenders and justice practitioners across Asia by taking a collaborative and proactive approach with Asian governments and fostering leadership and innovation in the area of criminal justice reform.

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

All Faculty Scholarship

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Faculty Publications By Year

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

Beyond Absolutism: Legal Institutions In The War On Terror, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Police Prosecution In Rhode Island: The Unauthorized Practice Of Law, Andrew Horwitz, John R. Grasso

Law Faculty Scholarship

Every day in Rhode Island, police officers are practicing law without a license in both the District Court and the Traffic Tribunal. They do so with the full stamp of approval of the judges before whom they appear, despite the fact that the unauthorized practice of law is a crime in Rhode Island, as it is in every other state in the country. While one can certainly speculate about reasons why this practice has developed, there is nothing in any published decision of the Supreme Court of Rhode Island or in any state statute that appears to permit or justify …

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

Targeting Legal Advice, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a …

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Articles & Chapters

With this Article, I hope to motivate state legislators to enact responsible, practical compensation statutes and encourage courts to entertain state law and civil rights claims brought by those who have been unjustly convicted and later exonerated. I begin by looking at the reasons for enacting compensation statutes: uniformity, practicality, popular support, and fairness. Next, I dissect the arguments raised by opponents. Finally, I turn to recent judicial decisions hinting that courts may be stepping in where legislatures fear to tread.

The Psychology Of Hindsight And After-The-Fact Review Of Ineffective Assistance Of Counsel, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Courts As Forums For Protest, Jules Lobel

Articles

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary's role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The reform upsurge of the 1960s and 1970s led many to argue that courts are not merely forums to settle private disputes, but can also be used as instruments of societal change. Academics termed the emerging model the hein"public law" or "institutional reform" model.

The ongoing debate between these two views of the judicial role has obscured a third model of the role …

The Real-World Shift In Criminal Procedure, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Wrongful Convictions And The Accuracy Of The Criminal Justice System, H. Patrick Furman

Publications

No abstract provided.

Bringing Moral Values Into A Flawed Plea Bargaining System, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

What If There Is No Client?: Prosecutors As "Counselors" Of Crime Victims, Stacy Caplow

Faculty Scholarship

No abstract provided.

Compromise And Continuity: Miranda Waivers, Confession Admissibility, And The Retention Of Interrogation Protections, Mark Berger

Faculty Works

No abstract provided.

Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Rule 412 Laid Bare: A Procedural Rule That Cannot Adequately Protect Sexual Harassment Plaintiffs From Embarrassing Exposure, Andrea A. Curcio

Faculty Publications By Year

No abstract provided.

Publicity In High Profile Criminal Cases, H. Patrick Furman

Publications

No abstract provided.

Avoiding Error In Closing Argument, H. Patrick Furman

Publications

No abstract provided.