Law Commons^™

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 …

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 …