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 …

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 …

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.

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 …

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 …

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 …

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 …

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 …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

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 …

Localism And Capital Punishment, Stephen F. Smith

Stephen F. Smith

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

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 …

Bulk Misdemeanor Justice, Stephanos Bibas

All Faculty Scholarship

This short essay responds to Alexandra Natapoff’s article Misdemeanors, which shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. The prime culprit in Natapoff’s story is the hidden, informal discretion that police officers enjoy to arrest, charge, and effect convictions, abetted by prosecutors’ and judges’ abdication and defense counsel’s absence or impotence. The roots of the problem she identifies, I argue, go all the way down to the system’s professionalization and mechanization. Given the magnitude of the problem, Natapoff’s solutions are surprisingly half-hearted, masking the deeper structural problems that demand …

Taming Negotiated Justice, Stephanos Bibas

All Faculty Scholarship

After four decades of neglecting laissez-faire plea bargaining, the Supreme Court got it right. In Missouri v. Frye and Lafler v. Cooper, the Court recognized that the Sixth Amendment regulates plea bargaining. Thus, the Court held that criminal defendants can challenge deficient advice that causes them to reject favorable plea bargains and receive heavier sentences after trial. Finally, the Court has brought law to the shadowy plea-bargaining bazaar.

Writing in dissent, Justice Scalia argued that the majority’s opinion “opens a whole new boutique of constitutional jurisprudence (‘plea-bargaining law’).” To which I say: it is about time the Court developed …

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson

Articles

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, …

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

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 …

Localism And Capital Punishment, Stephen F. Smith

Journal Articles

Professor Adam Gershowitz presents an interesting proposal to transfer from localities to states the power to enforce the death penalty. In his view, state-level enforcement would result in a more rationally applied death penalty because states would be much more likely to make capital charging decisions based on desert, without the distorting influence of the severe resource constraints applicable to all but the wealthiest of localities. As well conceived as Professor Gershowitz’s proposal is, however, I remain skeptical that statewide enforcement of the death penalty would be preferable to continued local enforcement. First, Professor Gershowitz underestimates the benefits of localism …

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

All Faculty Scholarship

This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Discretion And Criminal Law: The Good, The Bad, And The Mundane, George C. Thomas Iii

ExpressO

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” …

Above Contempt?: Regulating Government Overreaching In Terrorism Cases, Peter Margulies

Law Faculty Scholarship

Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan

Faculty Scholarship

Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles – below eighteen years of age – at the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. A constitutional test of capital punishment for juveniles was inevitable. …

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

Publications

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave defendants' rights …

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …