Prosecuting Misdemeanors

2021 ◽  
pp. 512-538
Author(s):  
Jenny Roberts
Keyword(s):  
United States ◽  
Plea Bargaining ◽  
The United States ◽  
Criminal Court ◽  
Discretionary Power ◽  
Criminal Cases ◽  
Prosecutorial Discretion ◽  
A Minor ◽  
Exercise Of Discretion

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year. This chapter discusses the role of prosecutors in the misdemeanor system. First, it addresses prosecutorial discretion and mass misdemeanor criminalization. Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases. Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes. This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors. Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record. Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion. Some recently elected so-called progressive prosecutors have already implemented significant promised changes. Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

Criminal Justice in an Era of Mass Deportation

2017 ◽  
Vol 20 (1) ◽  
pp. 12-38 ◽  
Author(s):  
Ingrid V. Eagly
Keyword(s):  
United States ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
State Level ◽  
Plea Bargaining ◽  
The United States ◽  
Criminal Court ◽  
Law Enforcement Agencies ◽  
Collateral Consequence

After a sustained period of hypercriminalization, the United States criminal justice system is undergoing reform. Congress has reduced federal sentencing for drug crimes, prison growth is slowing, and some states are even closing prisons. Low-level crimes have been removed from criminal law books, and attention is beginning to focus on long-neglected issues such as bail and criminal court fines. Still largely overlooked in this era of ambitious reform, however, is the treatment of immigrants in the criminal justice system. An unprecedented focus on immigration enforcement targeted at “felons, not families” has resulted in a separate system of punitive treatment reserved for noncitizens, which includes crimes of migration, longer periods of pretrial detention, harsher criminal sentences, and the almost certain collateral consequence of lifetime banishment from the United States. For examples of state-level solutions to this predicament, this Essay turns to a trio of bold criminal justice reforms from California that (1) require prosecutors to consider immigration penalties in plea bargaining; (2) change the state definition of “misdemeanor” from a maximum sentence of a year to 364 days; and (3) instruct law enforcement agencies to not hold immigrants for deportation purposes unless they are first convicted of serious crimes. Together, these new laws provide an important window into how state criminal justice systems could begin to address some of the unique concerns of noncitizen criminal defendants.

Victims and Prosecutors

2021 ◽  
pp. 372-398
Author(s):  
Amanda Konradi ◽  
Tirza Jo Ochrach-Konradi
Keyword(s):  
United States ◽  
Plea Bargaining ◽  
Case Law ◽  
The United States ◽  
Evidence Based ◽  
Prosecutorial Discretion ◽  
Trial Courts ◽  
Victim Satisfaction ◽  
Victim Impact Statements ◽  
Therapeutic Justice

This chapter explores crime victims’ experiences in U.S. trial courts in relation to the passage, application, and adjudication of state and federal victims’ rights legislation (VRL). It reviews victims’ current rights established through legislation and case law: to privacy, information, and notification; to be present; and to be heard in pre-trial hearings, in trials, in plea bargaining, and in victim impact statements. It reviews qualitative research documenting how and why prosecutorial discretion is often exercised to limit victims’ participation in trials and pleas, highlighting incentives for emotion management. It also reviews proposals, which are counter to this standard, designed to achieve greater victim participation and to produce higher quality testimony, including extensive pre-court preparation and courtroom intermediaries. It assesses the efficacy of practices to protect victims from secondary victimization in court, including shielding (close circuit video and screens) and support dogs. It explores use of private attorneys to (1) ensure that prosecutors and judges comply with VRL and (2) pursue victim-directed, private prosecution of sexual assault in the United States and elsewhere. It concludes that the promise of VRL—to provide therapeutic justice outcomes, achieve victim satisfaction, and enact procedural justice—is yet to be realized in the United States; however, an evidence-based approach toward prosecutorial practice would be advantageous for victims.

Victims and Offenders

2019 ◽  
pp. 123-150
Author(s):  
George P. Fletcher
Keyword(s):  
International Criminal Court ◽  
The United States ◽  
Criminal Court ◽  
Private Life ◽  
European Convention ◽  
Criminal Cases ◽  
International Legal Order ◽  
Definition Of ◽  
The Right

This chapter assesses the role of victims and offenders in criminal cases. The victim is invisible in the definition of crime but omnipresent in the prosecution and sentencing of offenders. In the international legal order, in particular, the victim is front and center, both in the International Criminal Court (ICC) and in lawsuits under the Alien Torts Claim Act. Crime is typically defined by the actions of the offender, and the victim is an incidental consequence. There are many victimless crimes, such as those in the sexual and reproductive arena, which in the United States at least are no longer subject to prosecution on constitutional grounds. The argument for decriminalization is the privacy of the offender, but privacy of the victim can, paradoxically, become an argument for criminalization under the right to a private life codified in the European Convention on Human Rights. The chapter also looks at the duality of victimhood.

Bargaining in the Dark

2019 ◽  
Vol 22 (4) ◽  
pp. 434-493 ◽  
Author(s):  
Andrea Kupfer Schneider ◽  
Cynthia Alkon
Keyword(s):  
United States ◽  
Legal System ◽  
Plea Bargaining ◽  
The United States ◽  
The State ◽  
Criminal Cases ◽  
Defense Counsel ◽  
Negotiation Theory ◽  
Crucial Component ◽  
Criminal Legal System

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

Business as Usual? Bail Decision Making and “Micro Politics” in an Australian Magistrates Court

2017 ◽  
Vol 42 (02) ◽  
pp. 325-346 ◽  
Author(s):  
Max Travers
Keyword(s):  
United States ◽  
Decision Making ◽  
Problem Solving ◽  
Plea Bargaining ◽  
The United States ◽  
Criminal Court ◽  
Criminal Courts ◽  
Problem Solving Courts ◽  
Business As Usual

Between the 1970s and 1990s, political scientists in the United States pursued a distinctive research program that employed ethnographic methods to study micro politics in criminal courts. This article considers the relevance of this concept for court researchers today through a case study about bail decision making in a lower criminal court in Australia. It describes business as usual in how decisions are made and the provision of pretrial services. It also looks at how traditionalists and reformers understood business as usual, and uses this as a critical concept to make visible micro politics in this court. The case study raises issues about organizational change in criminal courts since the 1990s, since there are fewer studies about plea bargaining and more about specialist or problem-solving courts. It is suggested that we need a new international agenda that can address change and continuity in criminal courts.

scholarly journals The Emperor’s New Clothes

2015 ◽  
Vol 2 (3) ◽  
pp. 385-432 ◽  
Author(s):  
Robert Schehr
Keyword(s):  
United States ◽  
Supreme Court ◽  
Due Process ◽  
United States Supreme Court ◽  
Plea Bargaining ◽  
The United States ◽  
Bill Of Rights ◽  
Criminal Cases ◽  
Homo Economicus ◽  
The Supreme Court

United States Supreme Court and jurisprudential rationalizations for the constitutionality, centrality, and finality of plea-bargaining signify intellectual dishonesty, ignorance of human behavior and decision-making, and a statesanctioned threat to personhood and liberty in the United States of America. It is the Author’s purpose to expose the imperious practice of plea-bargaining for what it is—a cynical and intellectually dishonest institutional remedy for an unwieldy judicial system that has knowingly rationalized the practice to facilitate expedient resolution of ever-increasing caseloads. In order to establish plea practice as constitutional, the Supreme Court was forced to employ a jurisprudential discourse that shifted from the due-process language found in criminal law, especially the protections afforded by the Fifth and Sixth Amendments, towards contract law where defendants personifying homo economicus are “free” to negotiate away their rights. Beginning in 1930, and again in 1970, the Supreme Court applied an entirely novel standard to the adjudication of criminal cases, and it rationalized its decision on the need for efficiency. What is at stake is nothing less than the integrity of the Constitution, the Bill of Rights, and whatever still remains of an American sense of personhood under the law. The erosion of our rights that are so intimately associated with freedom due to plea-bargaining is an unprecedented injustice that cannot continue.

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