Law Commons^™

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Pace Law Review

No abstract provided.

Political Versus Administrative Justice, Stephanos Bibas

All Faculty Scholarship

This comment responds to an essay by Rachel Barkow, which insightfully links the decline of mercy in American criminal justice to the rise of a rule-of-law ideal inspired by administrative law. This comment notes the dangers of the administrative, rule-focused, judiciocentric approach to criminal justice. Instead, it suggests a more political approach, with more judicial deference to political actors and less judicial policing of equal treatment. The essay by Rachel Barkow to which this comment responds, as well as other authors' comments on this essay and the author's reply to those comments, can be found at http://www.law.upenn.edu/phr/conversations/status/

Prosecutors As Punishment Theorists: Seeking Sentencing Justice, Michael A. Simons

Michael A Simons

Federal criminal law in the last 100 years has seen three distinct sentencing eras. Most surveys of these three sentencing eras have focused on the changing power of the judge: from unfettered discretion before the Sentencing Guidelines, to severely restricted discretion under the mandatory guidelines, to our current system of guided discretion under United States v. Booker. This article, however, focuses on the role of the prosecutor, which has changed dramatically over time. In the era of individualized sentencing, prosecutors typically either abdicated sentencing responsibility or made non-binding recommendations based on individualization principles. There was little reason for prosecutors to …

Forensic Science, Wrongful Convictions, And American Prosecutor Discretion, Dennis J. Stevens

Criminal Justice Faculty Publications

A hot controversy exists about the reliability of forensic science as reported by prime-time drama television series in bringing violent criminals to justice. This exploratory research will show that neither forensics or its fictionalised (CSI Effect) accounts, nor substantial evidence secured by police investigators, shape prosecutor decisions to charge a suspect with a crime, which can often result in freeing guilty suspects and convicting innocent individuals. In the summer of 2006, 444 American prosecutors responded to a survey. The findings reveal that judges, juries, and defence lawyers are influenced more by prime-time American drama forensic accounts than by the substantial …

Charge Movement And Theories Of Prosecutors, Ronald F. Wright, Rodney L. Engen

Ronald F. Wright

The charges filed at the start of a criminal case often move down to less serious charges that form the basis for a guilty plea and conviction. In this symposium essay, we build on our earlier work on charge movement based on data from North Carolina. After noting that charges move at different rates for different crimes, we explain the differences among crimes by looking to the structure of the substantive criminal law. Groups of crimes that offer deeper options to the negotiators (such as the many versions of assault) produce more frequent charge movement.

Assuming that the structure of …

The Black Box, Ronald F. Wright, Marc L. Miller

Ronald F. Wright

Classic accounts of prosecutorial discretion, from Herbert Wechsler through the present day, portray charging discretion as the antithesis of law. Scholars express particular concerns about racial and other nefarious grounds for prosecution, while others worry about the increased range of choices available to prosecutors when criminal codes become bloated with new crimes.

The familiar response to this problem features a call for greater external legal regulation. The external limits might come from judges who review prosecutorial charging decisions, or from legislatures reworking the criminal code. These external oversight projects, however, have failed.

This article explores some facets of internal regulation—efforts …

Prosecuting Sexual Violence In Correctional Settings: Examining Prosecutors' Perceptions, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

The Prison Rape Elimination Act of 20031 (PREA) is the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody. Notwithstanding passage of the Act, there is clear belief, echoed by correctional leaders, that prosecutors are reluctant at best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on prosecutor interest in and capacity to prosecute these cases, the National Institute of Corrections Project on Addressing Prison Rape at the Washington College of Law the (the NIC/WCL Project) collected data from state and federal prosecutors. …

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This is the James D. Hopkins Memorial Lecture in honor of Judge Hopkins, who was the Dean of Pace Law School from 1982 to 1983 and earlier served with great distinction on the New York Appellate Division's Second Judicial Department. Judge Hopkins served on that court when I worked in the special prosecutor's office, and as head of the appeals bureau, I argued several cases in Judge Hopkins' court. One case stands out, the case of Salvatore Nigrone v. Murtagh. It was an extensive undercover investigation. My office used informants, wiretaps, and a sham arrest to expose corrupt attempts to …

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Prosecutors "Doing Justice" Through Osmosis - Reminders To Encourage A Culture Of Cooperation, Melanie Wilson

Scholarly Works

Scholars have often criticized the government for relying on "cooperating" defendant/witnesses in obtaining convictions of other persons. Such scholars contend that cooperating witnesses are powerfully motivated to parrot information a prosecutor wants to hear and that as naturally biased advocates, prosecutors overlook and ignore signs that cooperating defendants are lying.

This article asserts that defendants who "cooperate" with the government by substantially assisting in the prosecution of other crimes and criminals in exchange for a hope of receiving a more lenient sentence are invaluable crime prevention tools and should be encouraged. Nevertheless, the article recognizes the inconsistent manner in which …