Law Commons^™

Veterans Treatment Courts: Broadening Eligibility For Veterans Convicted Of Violent Offenses, Mark Dela Peña

Catholic University Law Review

Veterans treatment courts (VTCs) have been gaining widespread popularity as a tool to divert justice-involved veterans from the criminal justice system. While a step in the right direction, most of these courts categorically exclude violent offenders for eligibility. Many jurisdictions conflate violent offenses with serious offenses, even when many violent offenses lack any physical harm. Additionally, prosecutors wield almost unbridled discretion in determining whether or not someone is charged with an offense considered to be violent, determining VTC eligibility even before a case reaches a sentencing hearing.

This comment argues for admitting veterans convicted of violent offenses into VTCs. This …

Toward A Better Criminal Legal System: Improving Prisons, Prosecution, And Criminal Defense, David A. Harris, Created And Presented Jointly By Students From State Correctional Institution - Greene, Waynesburg, Pa, And University Of Pittsburgh School Of Law, Chief Editor: David A. Harris

Articles

During the Fall 2023 semester, 15 law (Outside) students from the University of Pittsburgh School of Law and 13 incarcerated (Inside) students from the State Correctional Institution – Greene, in Waynesburg, Pennsylvania, took a full semester class together called Issues in Criminal Justice and Law. The class, occurring each week at the prison, utilized the Inside-Out Prison Exchange pedagogy, and was facilitated by Professor David Harris. Subjects include the purposes of prison, addressing crime, the criminal legal system and race, and issues surrounding victims and survivors of crime. The course culminated in a Group Project; under the heading “improving the …

Faithful Execution In The Fifty States, Zachary S. Price

Georgia Law Review

Amid heightened political conflict over criminal-justice policy, norms surrounding prosecutorial discretion have shifted rapidly. Under the prior mainstream approach, prosecutors exercised broad charging discretion, but generally did so tacitly and in case-by-case fashion out of deference to statutory law’s primacy. Under an emerging alternative approach, associated for the moment with progressive politics, prosecutors categorically and transparently suspend enforcement of laws they consider unjust or unwise. The federal government under President Obama employed this theory in high-profile policies relating to marijuana crimes, as well as immigration and the Affordable Care Act. More recently, a number of self-described “progressive prosecutors” have employed …

Do Mandatory Minimums Increase Racial Disparities In Federal Criminal Sentencing?, Caroline Gillette

Undergraduate Economic Review

Black males received sentences about twenty percent longer than similarly situated white males from 2012 to 2016. Some of this inequality may be introduced by mandatory minimum sentences. Charges carrying a mandatory minimum sentence are brought against Black defendants at higher rates than white defendants. It has been argued that these sentences introduce bias in two ways: legislatively (the types of crimes that carry a mandatory minimum) and in the way these sentences are put into practice (increasing prosecutorial discretion). This brief explores whether mandatory minimum sentences increase racial inequality in criminal sentencing.

Imagining The Progressive Prosecutor, Benjamin Levin

Publications

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

Same Grid, Different Results: Criminal Sentencing Disparities Between Arkansas Counties, Alexis Stevens

Arkansas Law Review

Abraham Davis is a resident of Fort Smith, Arkansas—and a convicted felon. In May of 2017, the Sebastian County Circuit Court, Fort Smith District, charged Davis with criminal mischief in the first degree, as a Class D felony, for purposely destroying the property of another. Davis’s charge resulted in a criminal sentence ranging from as little as probation to as much as 6 years jail time and/or up to $10,000.00 in fines. This sentencing determination is generally allocated to the judge and prosecutor. However, victim intervention persuaded the court to release Davis on probation, sparing him from a much harsher …

Examining Racial And Ethnic Disparity In Prosecutor’S Bail Requests And Downstream Decision Making, Connor Concannon

Dissertations, Theses, and Capstone Projects

Rigorous academic research into prosecutorial and judicial decision making has been taking place for over three decades, but a great deal remains unknown about the mechanics of prosecution. A majority of the work done by prosecutors occurs outside of public view, and most research focuses on the ‘back end’ of the adjudication process, leaving unanalyzed numerous decision points made upstream of the final plea and sentencing outcomes. Using unique data from the New York County District Attorney’s Office that tracks 43,971 felony complaints, this research examines racial and ethnic disparity at multiple decision points during case processing, with a focus …

Analyses Of Prosecutorial Power And Discretion In Mississippi: Evaluating Proposals To Address Misconduct And Abuse, Lucy Pruitt

Honors Theses

This thesis seeks to create a policy proposal in order to address incidences of prosecutorial misconduct and abuse of discretion in the Mississippi criminal justice system. To do so, the author has summarized and analyzed seven criminal cases in which defendants have become victims of prosecutorial misconduct in order to shed light on the lack of prosecutorial accountability in the state’s criminal justice system. In an attempt to solve the problem, the author has developed a novel grading rubric in order to objectively and systematically analyze and evaluate previously proposed policy recommendations by legal experts and justice organizations. The successes …

The Central Park Five As “Discrete And Insular” Minorities Under The Equal Protection Clause: The Evolution Of The Right To Counsel For Wrongfully Convicted Minors, Todd K. Beharry

Journal of Race, Gender, and Ethnicity

No abstract provided.

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 …

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

Elizabeth T Lear

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

Karen Woody

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …

Mens Rea Reform And Its Discontents, Benjamin Levin

Publications

This Article examines the debates over recent proposals for “mens rea reform.” The substantive criminal law has expanded dramatically, and legislators have criminalized a great deal of common conduct. Often, new criminal laws do not require that defendants know they are acting unlawfully. Mens rea reform proposals seek to address the problems of overcriminalization and unintentional offending by increasing the burden on prosecutors to prove a defendant’s culpable mental state. These proposals have been a staple of conservative-backed bills on criminal justice reform. Many on the left remain skeptical of mens rea reform and view it as a deregulatory vehicle …

Human Dignity: The Clandestine Factor In Prosecutorial Discretion, Tamara F. Lawson

Intercultural Human Rights Law Review

Justice and human dignity have an organic and symbiotic relationship. The American Bar Association's Functions and Duties of the Prosecutor Standard 3-1.2(a) outlines that "[t]he prosecutor is an administrator of justice . . . [and] should exercise sound discretion and independent judgement in the performance of the prosecution function." The ABA standards further prohibit improper bias2 and proscribe a duty to report and respond to prosecutorial misconduct.3 ABA Standard 3-1.2(b) states: "The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict." 4 Although rarely openly discussed, I ask now, is …

The Effects Of The War On Drugs On Black Women: From Early Legislation To Incarceration, Tiffany Simmons

American University Journal of Gender, Social Policy & the Law

No abstract provided.

"Declinations With Disgorgement" In Fcpa Enforcement, Karen Woody

University of Michigan Journal of Law Reform

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program—specifically, “declinations with disgorgement.” Pursuant to the Pilot Program, the Department of Justice declined to prosecute or even continue an investigation, provided the company disgorge its alleged ill-gotten gains. This Article dissects both the purpose of, and terminology used in, declinations with disgorgement and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred …

The Limits Of Prosecutorial Discretion In Singapore: Past, Present, And Future, Siyuan Chen

Siyuan CHEN

The exercise of prosecutorial discretion is a unique executive act that continues to be very well-protected from public scrutiny in many jurisdictions throughout the world. In this article, I attempt to survey virtually the entire body of case law on the limits of prosecutorial discretion in Singapore. Probably because prosecutorial discretion is protected by the Constitution, it took a while for the Singapore courts to retreat from its initial characterisation of the discretion as absolute and outside the scope of any form of review. Against a wider backdrop of increasing rights-consciousness (especially within the courts) and the public demand for …

Dismissals As Justice, Anna Roberts

Faculty Publications

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

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 …

Amnesty Now! Ending Prison Overcrowding Through A Categorical Use Of The Pardon Power, Jonathan Simon

University of Miami Law Review

America’s practice of mass incarceration is coming under growing criticism as fiscally unsustainable and morally indefensible. Chronic overcrowding of prisons, a problem that epitomizes the destructive and unlawful core of mass incarceration, now afflicts the federal prison system and nearly half the states. Actual reforms, however, like President Obama’s recent grant of clemency to forty-six federal prisoners serving long drug sentences for non-violent conduct, or recent one-off sentencing reforms aimed at preventing imprisonment for minor drug or property crimes, are manifestly insufficient to end mass incarceration, or even the chronic overcrowding that represents its most degrading and destructive aspect. The …

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 …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

Expressive Enforcement, Avlana Eisenberg

Scholarly Publications

Laws send messages, some of which may be heard at the moment of enactment. But much of a law’s expressive impact is bound up in its enforcement. Although scholars have extensively debated the wisdom of expressive legislation, their discussions in the context of domestic criminal law have focused largely on enactment-related messaging, rather than on expressive enforcement. This Article uses hate crime laws—the paradigmatic example of expressive legislation—as a case study to challenge conventional understandings of the messaging function of lawmaking. The Article asks: How do institutional incentives shape prosecutors’ enforcement decisions, and how do these decisions affect the message …

In Defense Of American Criminal Justice, J. H. Wilkinson, Iii

Vanderbilt Law Review

The American criminal justice system is on trial. A chorus of commentators-often but not exclusively in the legal academy-has leveled a sharp indictment of criminal process in our country. The indictment charges that large flaws infect nearly every stage of the adjudicatory process. And the prescriptions are equally far-reaching, with calls for abolition of many current practices and an overhaul of the entire system. What is more, the critics issue their condemnations essentially as givens, often claiming that all reasonable people could not help but agree that fair treatment of the accused has been fatally compromised. For these critics, "We …

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on …

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 …

When Does Sleaze Become A Crime? Redefining Honest Services Fraud After Skilling V. United States, Teresa M. Becvar

Chicago-Kent Law Review

Honest services fraud, which is defined as a scheme or artifice to deprive another of the intangible right of “honest services,” is just one tool in the federal government’s extensive arsenal used to prosecute public corruption and private corporate fraud. The Supreme Court curtailed the expansion of this versatile theory twice in the past three decades, most recently in June 2010 in Skilling v. United States. In Skilling, the Court held, inter alia, that the federal honest services statute covers only bribery and kickback schemes and not undisclosed self-dealing. Months later, members of Congress proposed the Honest Services …

Federal Discretion In The Prosecution Of Local Political Corruption, Andrew T. Baxter

Pepperdine Law Review

Federal prosecutors' awareness of political corruption at the state and local levels has recently increased concomitantly to the incidence of disclosures and prosecutions of similar corruption at the federal level. Because local law enforcement officials have frequently been unable or unwilling to pursue local political corruption, federal prosecutors have increasingly assumed responsibility for the policing of non-federal political criminal activity, even in the absence of definitive statutory grounds. In this article, the author examines the legal basis upon which federal prosecution of local political corruption is conducted. It is asserted that existing federal judicial and legislative limitations provide an inexact …

The Widening Maturity Gap: Trying Juveniles As Adults In An Era Of Extended Adolescence, David Pimentel

David Pimentel

Cultural shifts and evolving parenting norms have dramatically changed society’s perception and expectations of adolescence and young adulthood. Intensive, highly-protective parenting is now the norm, with parents playing a larger role in late-teens’ and young adults’ lives than ever before. Even the young adults do not perceive themselves to be fully grown-up yet, and do not expect to be fully responsible for themselves, until well into their mid-twenties. Consistent with this, neuroscientists are finding that the relevant brain development is not complete before the age of twenty-five, so it may be unreasonable to expect a late teen to behave like …