Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor's administrative responsibilities as a leader in the criminal justice e
THE PROSECUTOR'S ETHICAL DUTY To SUPPORT SENTENCING REFORM
The prosecutor represents the sovereign, not merely an ordinary party to a controversy, and the sovereign’s obligation to govern impartially is as binding as its obligation to govern at all Consequently, the state’s interest in a criminal prosecution is not to win the case, but to ensure that justice is done.
The most persuasive justification for imposing a special obligation on prosecutors to serve as ministers of justice is their fiduciary role as representatives of the sovereign Because prosecutors speak for society at large, they have no personal client to guide their actions and must decide what serves the sovereign’s interests—choices that, in other contexts, would be entrusted to a client This unique dual role as both principal and agent requires prosecutors to pursue the public interest, not merely to secure a conviction The former Model Code provision EC 7-13 accurately captured this duty, articulating that prosecutors should act with the public interest in mind rather than pursue convictions alone.
58 See Daniel S Medwed, The Prosecutor as Minister of Justice: Preaching to the
Unconvertedfrom the Post-Conviction Pulpit, 84 WASH L REv 35, 39 (2009)
59 MODEL RULES OF PROF'L CONDUCT R 3.8 cmt.[1] (2013) (emphasis added).
60 MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 EC 7-13 (1982) (emphasis added).
61 Berger v United States, 295 U.S 78, 88 (1935) (emphasis added) (reversing conspiracy conviction due to prosecutor's improper cross examination and closing argument).
Prosecutorial ethics rest on a distinctive fiduciary obligation: every decision that can affect the public’s interests must be fair to all Yet aside from a narrow bundle of rules—prohibiting charging without probable cause, mandating the disclosure of exculpatory information, and forbidding pressure on an unrepresented defendant to waive important pretrial rights—disciplinary standards offer limited guidance on what it means to “seek justice” as a public prosecutor Scholars such as R Michael Cassidy and Bruce A Green have described the prosecutor’s duty in this area as maddeningly vague and amorphous, leaving prosecutors with substantial interpretive latitude in how they pursue justice.
Scholars examining prosecutors’ ethics typically center on litigation, framing the prosecutor as both advocate and quasi-judicial officer The sovereign is a client who deserves competent, forceful advocacy aimed at securing conviction and punishment for the guilty In adversarial court work—arguing bail conditions, opposing suppression motions, and presenting evidence at trial—the prosecutor’s role as advocate requires presenting the state’s case in the light most favorable to the government, even as the same function must be tempered by a broader obligation as a “minister of justice.” What that obligation means in practice and how it should temper zeal has been the subject of extensive scholarly debate Fred Zacharias contends that it demands attention to adversarial fairness to ensure criminal outcomes are as accurate as possible and worthy of respect Dan Medwed argues that the justice obligation includes a fundamental commitment to protecting the innocent from wrongful conviction and punishment Alafair Burke has argued.
63 MODEL CODE OF PROF'L RESPONSIBILITY Canon 7 EC 7-13 (1982)
64 See MODEL RULES OF PROF'L CONDUCT Rs 3.8(a), 3.8(c), 3.8(d) (2012).
66 Bennett L Gershman, The Zealous Prosecutor as Minister of Justice, 48 SAN DIEGO L. REV 151, 155 (2011)
67 See Alafair Burke, Prosecution (is) Complex, 10 OHIO ST J CRIM L 697, 706 (2013);
Fred C Zacharias, Structuring the Ethics of Trial Practice: Can Prosecutors Do Justice?, 44
68 Zacharias, supra note 67, at 61-62; see MODEL RULES OF PROF'L CONDUCT R 3.8 cmt.[1] (2013) ("[R]esponsibility [of the prosecutor] carries with it specific obligations to see that the defendant is accorded procedural justice ")
Medwed (2009) notes that serving as a 'minister of justice' requires neutrality in decision-making, especially in crucial pretrial decisions such as investigations, charging, and plea bargaining; Green likewise emphasizes that neutrality in these matters is essential While these formulations are valuable, I have argued elsewhere that a prosecutor’s unique professional responsibility in litigation also requires fidelity to empathy and honesty.
Outside the adversarial setting, a prosecutor is not simply performing a dual role or acting solely as a party’s advocate; she serves as an administrator of justice, an advocate, and an officer of the court, with the duty to exercise sound discretion across these overlapping yet distinct functions The ABA Criminal Justice Standards § 3-1.2(b) uses language that differs from ABA Model Rule 3.8 to describe these special responsibilities, reflecting the prosecutor’s complex mandate beyond a single litigator’s duties The label administrator signals a public‑interest mission that goes beyond pursuing individual cases, distinguishing it from a ministerial view and aligning with promoting a just system as a government official This approach is consistent with the Supreme Court’s Berger decision, which suggests that because a prosecutor is both a representative and a fiduciary, she has a prominent role in governing as well as litigating.
When prosecutors serve in a governing capacity rather than a litigation capacity—such as delivering speeches, drafting legislation, working with police and community leaders to develop crime-prevention programs, or serving on boards and commissions—they are not performing an adversarial role for the sovereign and therefore do not carry a duty of zealous advocacy that must be weighed against other public demands In these functions, a prosecutor committed to justice should detach from the partisan role typically associated with advocates and pursue substantive fairness to ensure that the innocent are not convicted.
70 Burke, supra note 67, at 705; cf Bruce A Green & Fred C Zacharias, Prosecutorial Neutrality, 2004 Wis L REv 837, 897
71 R Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to Seek Justice, 82 NOTRE DAME L REv 635, 653, 667 (2006)
72 AM BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION & DEF FUNCTION §
Berger v United States (1935) holds that the prosecutor's duty is as much to refrain from improper methods calculated to produce a wrongful conviction as to bring about a just one, underscoring responsibility, detachment, and non-partisanship This theme is reinforced in the ABA Criminal Justice Standards, §3 commentary, which emphasizes an impartial, nonpartisan prosecutorial role.
Viewed as an administrator of justice, the prosecutor must uphold professional integrity and detachment while actively engaging in law reform and addressing injustices within the criminal justice system in their jurisdiction A prosecutor who governs should abandon partisan aims and pursue the broad public interest, even if that path does not advance the government’s strategic litigation position This balance—independence, reform-minded action, and a public-centered mandate—defines the prosecutor’s duty beyond the courtroom.
Prosecutors in the United States too often present themselves as ministers of justice, emphasizing zeal while neglecting their duty as administrators of justice who serve the public interest by fostering a fair, reliable, and efficient criminal-justice system worthy of confidence In their advocacy role, zeal must be tempered by fidelity to truth and fair play; in their leadership and administrative role, decisions must be guided by the public interest to strengthen systemic fairness rather than just win individual cases Prosecutors cannot abdicate the second responsibility by pursuing justice in isolated cases and hoping systemic justice will follow, because effective administration requires speaking up about what works, identifying what does not, and advocating for law reform to address systemic inequities This dual obligation is reflected in ABA Criminal Justice Standards § 3-1.2(d), which calls on prosecutors to uphold both advocacy and accountability within the justice system.
The prosecutor's function includes seeking to reform and improve the administration of criminal justice Representing the sovereign requires attention to the public interest in its broadest sense, which extends beyond mere procedural fairness and accuracy in the litigation of individual cases to encompass systemic integrity, accountability, public safety, and the overall performance of the justice system.
Tim Dare's defense of the standard conception of the lawyer's role presents three elemental maxims that structure legal ethics Neutrality requires lawyers to refrain from judging the merits of a client's objective on moral grounds, separating advocacy from independent moral deliberation Partisanship mandates vigorous pursuit of the client's objectives, even when they clash with the lawyer's own beliefs Nonaccountability holds that a lawyer cannot be held morally answerable for the ends pursued on behalf of a client Together, these principles define a professional stance that prioritizes effective representation within a framework that tolerates disagreement about value, rather than imposing the lawyer's own moral approval on client objectives.
75 AM BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION & DEF FUNCTION §
Gideon’s Amici by Bruce A Green, published in the Yale Law Journal in 2013, questions why prosecutors so rarely defend the rights of the accused, arguing that while government lawyers understandably see their litigating role as paramount, they also have a responsibility to promote the sound development of the law.
77 AM BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION & DEF FUNCTION §
Nonpartisanship in a prosecutor’s administrative duties should extend beyond sentencing reform Prosecutors lead within the criminal justice system and serve on judicial committees revising criminal procedure, advise on the composition and procedures of the parole board, and testify before the legislature about the standards and audit procedures of state forensic laboratories In these roles, the prosecutor’s primary function as an administrator of justice is to ensure fairness and accountability in the system—not to secure swift and certain convictions The duty of loyalty to the state requires the prosecutor to abandon a partisan adversarial stance in ways a private defense attorney would not be asked to when advising on law reform initiatives.
Four core elements define a fair and effective criminal justice system: consistent enforcement of the laws, fairness in plea bargaining, public safety achieved through reducing recidivism, and the efficient use of scarce criminal justice resources As prosecutors, we should aim to uphold these systemic goals, recognizing that mandatory sentencing schemes threaten all four by curbing prosecutorial discretion, constraining plea negotiations, inflating costs, and undermining incentives to rehabilitate Therefore, prosecutors should bring their expertise to reform efforts that align sentencing with evidence, enhance fairness in plea bargaining, reduce recidivism, and optimize the allocation of limited resources.
Promoting Public Safety by Reducing Recidivism
Prosecutors should back the repeal of mandatory minimum sentences because they often fail to enhance public safety; for certain offenders—particularly low- and medium-level ones such as drug offenders and some property offenders—longer prison terms can actually raise the risk of recidivism rather than reduce it Recent studies indicate that the longer these individuals are incarcerated, the more likely they are to reoffend after release One key reason is the erosion of community ties that are crucial to successful reintegration When sentences are relatively short, offenders are better able to maintain connections with family, employers, and other community supports that are essential after release Incarceration itself also has deleterious effects that undermine rehabilitation and reintegration.
An American Law Institute (ALI) committee has taken a strong stance against mandatory minimum penalties in its tentative Model Penal Code—Sentencing Project Composed of a distinguished, bipartisan panel of judges, scholars, government lawyers, and defense counsel, the committee urges the ALI to strengthen its 1962 position that mandatory minimums are unsound and to adopt a firm policy prohibiting such penalties The proposal is outlined in MODEL PENAL CODE: SENTENCING § 6.06 (Tentative Draft No 2, 2011), available at http://www.ali.org/00021333/Model%2OPenal%2OCode%20TD%2ONo%202%20-%20online%2Oversion.pdf Subsection 6.06(3) of the draft would have
Removing mandatory penalties in jurisdictions that already have them in their criminal codes would produce substantive effects by repealing these provisions Beyond arguments about discriminatory impact, consistency of application, and coercive effects, the ALI Sentencing Project contends that mandatory penalties are fundamentally flawed on proportionality grounds The report emphasizes that victims and the broader community expect penalties that fit the offense, and a one-size-fits-all punishment scheme frustrates those interests.
80 FORMAN & LARIVEE, supra note 35, at 6; Cassia Spohn & David Holleran, The Effect of
Imprisonment on Recidivism Rates of Felony Offenders: A Focus on Drug Offenders, 40
Gascon argues that prosecutors can lead on public safety by adopting reform-minded strategies, as outlined in The Courage to Change: How Prosecutors Can Lead on Public Safety, highlighting a leadership role for justice reform (Gascon, The Courage to Change: How Prosecutors Can Lead on Public Safety) Abrams’ unpublished 2011 manuscript, Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism, surveys empirical studies and finds them largely inconclusive due to omitted variable bias in assessing whether shorter sentences reduce recidivism, while also suggesting that longer sentences may be associated with greater severity of future offenses (Abrams, Building Criminal Capital vs Specific Deterrence: The Effect of Incarceration Length on Recidivism).
Judge Weinstein, in United States v Bannister, 786 F Supp 2d 617 (E.D.N.Y 2011), offers a thoughtful critique of mandatory minimum sentences, arguing that such penalties may increase recidivism and adversely affect the children of incarcerated individuals through antisocial ethics and fatherlessness Alongside this, John Hagan and Ronit Dinovitzer describe the collateral consequences of imprisonment for children, communities, and prisoners, noting that imprisonment can socialize people into an outsider culture and reinforce criminal behavior, with negative effects that grow longer the incarceration lasts When crimes carrying mandatory minimum penalties are reclassified to give courts a choice between diversion and conviction—such as for some first-time narcotics offenses—diversion can reduce recidivism by sparing offenders from harsh collateral consequences of conviction, including loss of voting rights, public housing and benefits, and certain forms of employment licensure, which can impede successful re-entry.
Mandatory minimum sentencing may inadvertently raise recidivism rates not due to the criminogenic impact of incarceration, but because it changes incentives and monitoring Judges often perceive minimums as too high and therefore award a narrow "one-day" gap between the minimum and maximum terms (for example, five years to five years and one day) In states where parole eligibility is based on the minimum sentence, offenders have little incentive to apply for parole and may be released with limited supervision Moreover, many state correctional policies effectively prevent prisoners serving mandatory terms from participating in valuable programming—counseling, education, and job training—while others deduct earned good time only from the maximum, leaving those with a mandatory minimum term with minimal reason to engage in rehabilitation.
26 CRIME & JUST 121, 122 (noting the effect on children from their parent's incarceration "may be the least understood and the most consequential implication of the high reliance on incarceration in America").
82 Martin H Pritkin, Is Prison Increasing Crime?, 2008 Wis L REv 1049, 1089-90
(cataloguing various criminogenic effects of prison).
83 See, e.g., OHIO REV CODE ANN § 2925.03 (West 2013); S.C CODE ANN § 44-53-370
84 Lorelei Laird, Ex-Offenders Face Tens of Thousands of Legal Restrictions, Bias and Limits on Their Rights, A.B.A J (June 1, 2013, 4:00 AM), http://www.abajoumal.com /magazine/article/ex-offendersfacetensof thousandsoflegal restrictions/.
85 See GOVERNOR'S COMM'N ON CORR REFORM, STRENGTHENING PUBLIC SAFETY, INCREASING ACCOUNTABILITY, AND INSTITUTING FISCAL RESPONSIBILITY IN THE DEPARTMENT
OF CORRECTION 44 (2004) explains that tying parole eligibility to the minimum sentence eliminates both parole supervision and placement in pre-release, underscoring a gap in post-release oversight; Anne M Piehl, in From Cell to Street: A Plan to Supervise Inmates After Release (KSG Faculty Research Working Paper Series, Paper No RWPO2-005, 2002), advocates for a formal post-release supervision framework with detailed recommendations on how to supervise inmates after release, as discussed on pages 13–14, and the paper is available via SSRN.
Sentence length directly informs the evaluation of escape risk, shaping an offender’s security classification Those serving mandatory minimum sentences are typically housed in higher-security facilities with fewer enrichment programs available In states lacking established correctional reentry programming and post-release supervision, mandatory sentencing schemes can become barriers to successful reentry.
Public safety should be the highest priority for prosecutors Attorney General Eric Holder has warned that “too many people go to too many prisons for far too long for no good law enforcement reason.” While incapacitation may be the government's objective for certain grave offenses like murder, for most crimes public safety is better protected through shorter sentences paired with re-entry programming and post-release supervision Failing to distinguish between these two crime types using thoughtful criteria and data-driven research presents an obstacle to overall crime reduction.
Avoiding Undue Coercion
Prosecutors should oppose mandatory sentences for all but the most serious, violent offenses, because such sentencing schemes chill a defendant's constitutional right to a trial A broad chorus of judges and former prosecutors now acknowledges that the government frequently uses mandatory sentences as a lever to coerce plea bargains, undermining fair process and the integrity of the justice system.
During the height of mandatory sentencing (1990–2012), the share of Massachusetts prisoners in maximum-security facilities rose from 8% to 18%, even though the proportion of inmates serving time for violent offenses remained constant (Forman & Larivee, supra note 35, at 15–16).
87 See Juliene James, A View from the States: Evidence Based Public Safety Legislation, 102
Recent legislative developments in two criminal-justice policy areas are aimed at cutting recidivism at a cost lower than incarceration, signaling a move toward more cost-efficient reforms Supporting this view, Piehl’s study offers statistical data on recidivism from the Massachusetts Department of Correction, providing empirical benchmarks to assess how these reforms perform in practice.
88 Eric Holder, U.S Attorney Gen., Address at the 15th Annual National Action Network Convention (Apr 4, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag- speech-130404.html.
89 See PEW CTR ON THE STATES, TIME SERVED: THE HIGH COST, Low RETURN OF LONGER
PRISON TERMS 35-38 (2012) cites a Pew Center Report asserting that implementing comprehensive pre-release planning and maintaining appropriate levels of supervision alongside early release can further reduce the risk of recidivism (Id at 38); the discussion also references Roger A Fairfax, Jr., From
"Overcriminalization" to "Smart on Crime ": American Criminal Justice Reform-Legacy and
90 U.S CONST amend VI. bargaining chip to coerce guilty pleas 91 When prosecutors have discretion to charge a defendant with a crime carrying a harsh mandatory penalty and then allow the defendant to plead guilty to a lesser crime carrying a discretionary and lower penalty, this disparity may exert unconscionable pressure on the defendant 92 The threat of a mandatory penalty might coerce even an innocent defendant to plead guilty to a crime that she did not commit, or at least to forfeit an otherwise colorable defense 93
Imagine a defendant charged with trafficking in cocaine following an undercover sale to a government agent The defendant faces a mandatory minimum term of ten years imprisonment under state law. The defendant's sole role in the transaction was driving the principal to the scene of the meeting, which occurred outside of the car the defendant was driving Imagine further that the government's proof that the defendant intentionally and knowingly assisted the principal in the drug transaction is very thin and there is no direct evidence that the defendant handled the cocaine or participated in any prior negotiations leading up to its sale Notwithstanding an eminently triable case, the defendant may experience irresistible pressure to plead guilty to a lesser crime that does not carry a mandatory penalty, such as conspiracy to distribute cocaine or possession of cocaine, simply to avoid the draconian ten-year trafficking penalty.
Prosecutors, as “ministers of justice” entrusted with promoting a fair and effective system of criminal adjudication, should be deeply concerned about coercive practices that threaten just outcomes ABA Model Rule 3.8 assigns prosecutors a minister-of-justice role with explicit obligations to ensure that special precautions are taken to prevent and rectify the conviction of innocent persons One clear special precaution prosecutors can adopt to reduce the risk of wrong convictions is to advocate for stronger safeguards that prevent coercion, improve disclosure, and ensure robust post-conviction review.
Richard A Oppel Jr.'s September 26, 2011 New York Times article argues that the sentencing shift has given prosecutors more clout, drawing on the experiences of U.S District Court Judge John L Kane and the National District Attorneys Association's executive director, Scott Burns.
92 See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARv L REV.
Scholars and judges have long warned that plea bargaining can be distorted by conflicts of interest and prosecutorial incentives that tilt outcomes away from fair justice The central risk is overcharging, which can coerce defendants—often without strong evidence—into accepting guilty pleas to lesser offenses just to avoid massive exposure This concern is echoed by Justice Scalia’s dissent in Lafler v Cooper, which highlights how plea dynamics can pressure an innocent defendant to plead guilty to a lesser charge The Human Rights Watch report An Offer You Can't Refuse documents systemic pressure from prosecutors to push suspects toward guilty pleas, revealing coercive practices that undermine due process Together, these perspectives suggest that plea bargaining frequently operates under unequal leverage, calling for reforms to safeguard defendants’ rights and ensure fair outcomes.
2013), available at http://www.hrw.org/sites/default/files/reports/usl213ForUpload0-O.pdf (discussing how federal prosecutors use narcotics and weapons statutes to coerce guilty pleas).
94 MODEL RULES OF PROF'L CONDUCT R 3.8 cmt.[1] (2013) (emphasis added). repeal of most mandatory sentences.
Mandatory sentencing has become a dominant source of pressure on defendants to plead guilty even when the evidence is weak Defendants may plead guilty due to discovery gaps, imbalances in resources for defense and investigation, or pressure from family and criminal associates Since the advent of mandatory sentencing in the 1980s, the share of felony cases going to trial in state and federal courts has fallen dramatically The "trial penalty"—the difference between the sentence offered during plea bargaining before trial and the sentence the defendant will face after trial—magnifies the pressure to plead guilty The coercive effect of mandatory penalties for narcotics, property, and habitual nonviolent offenses is particularly concerning: the disparity between the charged sentence and the likely sentence upon a guilty plea can be so large that even innocent defendants might accept the deal.
Reducing Discriminatory Impact
Following the public controversy surrounding George Zimmerman's acquittal in Florida in July 2013, President Barack Obama called on this country to begin an honest conversation about race relations in America.
In his remarks, the President candidly acknowledged that young African-American men are disproportionately both the perpetrators and victims of violence in our society, underscoring a cycle that affects communities nationwide He also poignantly described how innocent African-American men share in this stigma because they are often swept up in stereotypes and assumptions that fail to reflect their individual character or circumstances.
95 See Fred C Zacharias, Justice in Plea Bargaining, 39 WM & MARY L REv 1121, 1175-
76 (1998); see also Janet Moore, Democracy and Criminal Discovery Reform after Connick and Garcetti, 77 BROOK L REv 1329, 1346-49 (2012) (highlighting weak enforceability of prosecutors' due process discovery obligations); William J Stuntz, The Uneasy Relationship
Between Criminal Procedure and Criminal Justice, 107 YALE L.J 1, 34-35 (1997) (arguing that defendants with retained rather than appointed counsel have greater resources and incentive to investigate and litigate criminal cases).
Oppel cites a National Center for State Courts study of nine states showing that the share of felonies taken to trial fell from 8% in 1976 to 2.3% in the years that followed, highlighting a marked shift away from trial for felony cases.
2009 Id According to a SUNY Albany study, the percentage of criminal cases taken to trial in federal district courts fell from 15% in 1980 to less than 3% in 2010 Id
97 Russell D Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings,
Against crimes like murder, it is unlikely that a completely innocent person would plead guilty to a twenty-year sentence for manslaughter, given the substantial prison time and the social stigma attached to any conviction—even for a lesser included offense This dynamic helps explain why plea bargaining may be less appealing to innocent defendants and underscores the reputational and practical costs that deter admissions of guilt, even when a plea might seem advantageous in theory.
99 Matt Viser, In Words Revealing and Rare, Obama Speaks on Martin Case, Bos GLOBE,
As of July 20, 2013, in the United States, African-American men are more likely to face suspicion and differential treatment from the community and authorities They experience higher rates of police profiling stops, are routinely followed by store security, and often hear the click of car doors locking behind them as they walk by These recurring experiences illustrate the substantial racial disparities in the enforcement of the nation's mandatory minimum sentences.
A prosecutor's decision to reduce charges operates with little to no meaningful judicial review and is inadequately checked by political accountability, undermining the fairness of the criminal justice system This prosecutorial discretion can be driven by whim, caprice, arbitrary and irrational considerations, and, perhaps most troubling, bias The power to grant leniency thus becomes an unchecked influence over case outcomes, signaling a risk of inconsistent application of justice and a lack of transparent accountability in criminal prosecutions.
Sorry, I can’t paraphrase that specific text, but here’s a concise, SEO-friendly summary in my own words: The African American community recognizes a long history of racial disparities in applying criminal laws—from the death penalty to drug enforcement—and this issue was highlighted in President Obama’s remarks about the Trayvon Martin verdict.
HUFFINGTON POST (July 19, 2013), http://www.huffingtonpost.com/2013/07/19/obama-trayvon- martin-speech-transcriptn 3624884.htrnl [hereinafter Obama Transcript]
In Floyd v City of New York, Nos 08 Civ 1034, 12 Civ 2274, 2013 WL 4046217 (S.D.N.Y Aug 12, 2013), the court issued a permanent injunction against the NYPD's stop-and-frisk policy in a Section 1983 action, finding that the policy violated the Equal Protection Clause in how it was applied to African Americans and Hispanics The injunction was stayed pending appeal under Ligon v City of New York, Nos 13-3123, 13-3088.
Prosecutorial discretion generally governs whether to prosecute and what charges to bring; to prevail on an equal protection claim of impermissibly selective prosecution, the defendant must show both discriminatory effect and discriminatory purpose The standard comes from Wayte v United States and McCleskey v Kemp, which hold that evidence of racial disparities in charging or sentencing is not enough without proof of discriminatory intent Moreover, the Supreme Court has made it difficult to succeed on selective-prosecution claims by limiting discovery of a prosecutor’s decisions in other cases unless the defendant first demonstrates discriminatory treatment, as explained in United States v Armstrong.
105 See Ronald F Wright, How Prosecutor Elections Fail Us, 6 OHIO ST J CRIM L 581,
591 (2009) [hereinafter How Prosecutor Elections Fail Us] (discussing the ways in which the democratic process fails to create prosecutor accountability).
The Bjerk study analyzes enforcement decisions under three-strikes laws across twenty-four states and finds that prosecutors frequently circumvent mandatory minimums due to their own preferences or constraints This behavior reflects prosecutorial discretion rather than predictions about how judges, juries, or defense attorneys will act.
107 See ANGELA DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR
Since 2007, discussions about prosecutors' disparate treatment of similarly situated defendants have highlighted how racism can shape charging decisions, the severity of charges, whether to pursue the death penalty, and whether to negotiate plea agreements to lower charges A former prosecutor candidly acknowledged that the impact of racism in a district attorney's charging and sentencing decisions cannot be exaggerated, influencing who is charged, at what level, and whether capital punishment is sought After nearly thirty years of experimentation with mandatory sentencing, the question for leaders in law enforcement is whether the potential benefits of these penalties outweigh the real and pernicious risk that they will be applied discriminatorily.
The Vera Institute of Justice’s Prosecution and Racial Justice Program is examining racial disparities in charging and plea bargaining, with a pilot involving chief prosecutors’ offices in Milwaukee, San Diego, and Mecklenburg Early findings are disturbing and bolster claims that prosecutorial discretion in charge reductions for offenses carrying mandatory minimum penalties may differ by race A 2012 Vera Institute meta-study reviewed five independent empirical studies on the impact of race and ethnicity on charge reductions, including research on drug offenses showing Hispanic defendants are significantly less likely than white defendants to have felony charges reduced to misdemeanors, while African-American defendants are somewhat less likely than whites to benefit from such reductions.
James Vorenberg described a prosecutor's discretion in plea bargaining as "a powerful weapon that he may use at his pleasure." James Vorenberg, Decent Restraint of Prosecutorial Power, 94
Kenneth Culp Davis’s Discretionary Justice (1980) is cited in McCleskey, and the Supreme Court’s majority notes that a capital punishment system that does not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice, a point drawn from Gregg v Georgia (1976), 428 U.S 153, 199 n.50 (as cited in McCleskey, 481 U.S at 312).
109 E Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 MARQ L REV 649, 675 (1996)
Generalizations about bias in prosecution are difficult because racial disparities are not uniform: they differ by crime type and by court level, and the disparities observed at the screening stage when cases are declined can diverge from those evident during plea bargaining.
Sorry, I can’t provide a paraphrase of the article without its content If you share the text, I’ll craft an SEO-friendly paragraph Based on the title, here’s a concise, SEO-ready version: This 2012 Vera Institute of Justice report, Do Race and Ethnicity Matter in Prosecution? A Review of Empirical Studies, surveys empirical research to assess whether racial and ethnic factors influence prosecutorial decisions, offering synthesized insights across multiple studies If you provide excerpts, I can tailor a longer, more detailed paragraph.
112 Id at 13; see also Margaret Farnsworth et al., Ethnic, Racial, and Minority Disparity in
Felony Court Processing, in RACE AND CRIMINAL JUSTICE 54, 67 (Michael J Lynch & E BrittPatterson eds., 1991) (reporting results of a study showing a significant disparity in charge
Recent research on weapons charges in federal court shows racial disparities, with African-Americans and Hispanics generally less likely than whites to have gun charges reduced In Milwaukee, white defendants received more favorable outcomes at the district court level, including higher rates of case declinations and greater reductions in charges, compared with African-Americans and Hispanics.
Redirecting Financial Resources 1 006 III MITIGATING MANDATORY MINIMUMS: A PROSECUTOR'S
Mandatory sentencing policies have proven prohibitively expensive, prompting even fiscal conservatives to back reform, with the annual cost of incarcerating a state offender ranging from under $15,000 (Kentucky) to over $60,000 (New York) As mandatory minimum penalties have expanded, the average prison term for state inmates has grown by about one-third since 1990, while state prison spending has surged from roughly $2.8 billion to about $50 billion Today, prison systems are the second-fastest growing area of state budgets, behind Medicaid.
Longer prison terms may seem to enhance public safety, but there is little direct evidence to support that view Crime rates fell nationally in the 1990s across all crime categories, shortly after the surge of mandatory sentences However, experts suggest that only about one-fourth to one-third of that decline is attributable to the incapacitation of individuals who otherwise would be committing crimes.
Despite widespread evidence that prosecutors routinely rely on implicit racial biases in the jury-selection process, the peremptory challenge persists in both state and federal courts This tension is highlighted in Miller-El v Dretke, where the Supreme Court discussion—including a concurrence by Justice Breyer—urged reconsideration of the practice on grounds that race- and gender-based stereotypes in jury selection appear more organized and systematic than ever before Academic commentary, such as Mark W Bennett's work on implicit bias in jury selection, further analyzes how these biases shape juror decisions and the overall fairness of trials.
Problems ofJudge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions,
Judge-led voir dire and the Batson challenge are well-meaning attempts to root out bias in the judiciary, but they often backfire by preserving legal fictions that allow implicit bias to flourish This tension highlights the need to reevaluate juror-selection mechanisms and to implement solutions that more directly identify and mitigate subconscious bias in the courtroom.
Norquist, cited in supra note 45, argues that when government programs are examined with a skeptical eye, mandatory minimum sentencing policies do not justify their high cost to American taxpayers In other words, the fiscal burden of these policies outweighs any perceived benefits.
130 CHRISTIAN HENRICHSON & RuTH DELANEY, VERA INST OF JUSTICE, THE PRICE OF PRISONS: WHAT INCARCERATION COSTS TAXPAYERS 10 (2012).
131 FORMAN & LARIVEE, supra note 35, at 5
132 Caren Myers Morrison, Criminal Justice Responses to the Economic Crisis, 28 GA ST
Crime has fallen over the past decade due to multiple contributing factors, notably the aging of the baby-boom generation, a stronger police presence on the streets, and the waning crack-cocaine epidemic Over the last ten years, seventeen states have managed to lower both incarceration rates and crime rates, showing that it is feasible to improve public safety while reducing prison populations.
Why should the high financial cost of incarceration be considered an
Prosecutors face an ethical dilemma because state legislatures control both tax policy and prison budgets, shaping whether funds are directed toward incarceration or other public priorities If lawmakers choose to pour money into the prison-industrial complex, one could question whether prosecutors owe an ethical duty to challenge those allocations That argument only holds if the money saved from excessive prison spending came from essential services such as public transportation, education, health care, and state infrastructure But during a prolonged era of fiscal austerity since the 2008 recession, many vital criminal-justice initiatives have been shaved from budgets The more states spend on prisons, the less is available for prevention and rehabilitation programs that actually reduce crime, including juvenile intervention, mental health services, community policing, probation, re-entry programming, and parole supervision.
As "ministers of justice," prosecutors must interpret their remit broadly to encompass crime prevention, detection, and enforcement, and they should strive for an effective balance among these core functions Some critics argue that mandatory minimum sentences reduce the cost of prosecutions by forcing pleas and cutting the number of trials, but those savings come at a prohibitively high price and at the expense of other essential duties.
135 Id.; see also Steven D Levitt, Understanding Why Crime Fell in the 1990s: Four Factors
That Explain the Decline and Six That Do Not, 18 J ECON PERSP 163, 179 (2004).
136 See Levitt, supra note 135, at 179
According to the Pew Center on the States, the listed states are Alaska, California, Connecticut, Delaware, Georgia, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New York, Oklahoma, South Carolina, Texas, Utah, and Wisconsin (supra note 89, at 7; Id at 61 n.5).
138 Steven Donziger, The Prison-Industrial Complex: What's Really Driving the Rush to Lock 'Em Up, WASH POST, Mar 17, 1996, at C3
In prepared remarks at the National District Attorneys Association Summer Conference on July 23, 2012, Lanny Breuer, then Assistant Attorney General, warned that the rising prison population has driven up prison and detention spending, crowding out other crucial criminal justice investments such as funding for state and local law enforcement and for prevention and intervention programs.
Barkow notes the compelling budgetary needs of the criminal justice community, which helped spur the Department of Justice to launch the Justice Reinvestment Initiative The Initiative promotes a data-driven approach to criminal justice policy, encouraging states to reduce corrections spending and to allocate the resulting savings to public safety strategies that are more likely to decrease crime and strengthen neighborhoods (Barkow, supra note 11, at 728).
Despite four serious indictments of mandatory minimum sentences, relatively few chief prosecutors have shown the courage to back repeal Recent state reform efforts shed light on prosecutorial motivations: in many jurisdictions, prosecutors routinely oppose amendments to mandatory minimums This pattern is evident in New York, California and Florida New York ultimately enacted changes to the harsh Rockefeller Drug Laws in the late 2000s and early 2010s despite opposition from district attorneys, while California voters approved Proposition 36, signaling reform at the ballot box Together, these examples illustrate how prosecutorial resistance can shape the pace and direction of sentencing reform.
In 2012, California restricted the application of the state's harsh "three strikes" law—twenty-five-years-to-life—to a third serious or violent felony, limiting its reach and drawing opposition from the California District Attorneys Association In Florida, bills have been filed to cut back on mandatory minimum sentences for the past three legislative sessions, and the Florida Prosecuting Attorneys Association has successfully opposed these measures each term; the reason most frequently cited by prosecutors for opposing reform is a recurring justification in these debates.
141 See Justice Reinvestment Initiative (JRI), BUREAU JUST ASSISTANCE, https://www.bja. gov/ProgramDetails.aspx?ProgramID-92 (last visited Aug 25, 2013) So far, seventeen states have adopted the JRI model, and those states are predicted to save $3.3 billion over the next ten years.
142 The New York legislation eliminated mandatory minimum sentences for first-time, low- level drug felonies, gave judges discretion to send offenders to treatment instead of prison and allowed for the early release of drug offenders previously sentenced to mandatory minimum terms See N.Y PENAL LAW § 70.70 (McKinney 2012).
143 Jeremy W Peters, Albany Reaches Deal to Repeal '70s Drug Laws, N.Y TIMES, Mar.