This chapter focuses on prosecutors’ roles in accountability courts and diversion programs, details their participation in creating these specialized courts and programs, explains their gate-keeping responsibilities, and discusses ethical rules raised by their participation. Specifically, the chapter describes drug courts and veterans courts, which are two of the most prominent specialized courts. Using these two specialized courts as representatives of other similarly situated courts, the chapter explains the history behind the creation of these courts, their structures, operations, and their specific goals of addressing the underlying causes of criminal defendants’ criminal behaviors. In the United States specialized court settings, the prosecutor, rather than being adversarial, tends to be collaborative with other court practitioners. In non-U.S. specialized courts, the prosecutors’ roles are not that significantly different from those of their U.S. counterparts. With ongoing efforts on reforming the U.S. criminal justice system, especially as it concerns issues addressed by specialty courts, U.S. prosecutors are likely to continue their support of these courts.
Bruce A. Green
The professional regulation of U.S. prosecutors is primarily the responsibility of state judiciaries, which regulate all attorneys, including prosecutors, through the adoption and interpretation of professional conduct rules and by enforcing these rules in the attorney discipline process. Although Bar associations have no formal role in regulating prosecutors, they wield informal influence by drafting and interpreting the professional conduct rules that state judiciaries adopt and by publishing standards that offer guidance to prosecutors. Ultimately, professional regulation has limited practical significance for U.S. prosecutors because many professional conduct rules are inapplicable or minimally applicable to their work, and because those rules that do apply (such as those governing attorneys’ advocacy) are uncontroversial and largely coextensive with constitutional law and other law governing prosecutorial misconduct. The rules do not significantly address prosecutors’ charging and plea bargaining decisions—controversial areas of practice relegated to prosecutorial discretion—and do not codify some professional expectations, such as those regarding prosecutors’ heightened duty of candor, that are expressed in court decisions and in unenforceable guidelines. Occasionally, the Bar has tried to persuade courts to adopt more demanding rules for prosecutors or to interpret existing rules more demandingly. Prosecutors have generally opposed these efforts, which have achieved limited success while exacerbating tensions between prosecutors and the Bar. Consequently, professional conduct rules do not fully capture the conventional understanding that prosecutors have a unique professional role that gives rise to different and, in some respects, more demanding professional obligations than those of other lawyers. The professional conduct rules have only limited influence and do not constrain some of prosecutors’ most controversial and troublesome decisions and behaviors.
Carol S. Steiker and Jordan M. Steiker
This article explores the tedious and unsuccessful project of controlling the death penalty through constitutional law. It first studies the problems that have surrounded constitutional jurisprudence since the 1970s, and then addresses the question of whether capital-punishment regimes are likely to meet the general concerns of fairness in process and outcome. Unfortunately, it seems that the problems of politicization and racial discrimination—among others—still are resistant to reform. This article concludes that even the basic requirements for a properly administered capital-punishment regime do not exist—and may never be achieved—in the United States.
This article reviews the landscape of capital punishment as it now exists. Section I discusses the use of capital punishment internationally. Section II, reviews the use and characteristics of capital punishment in the United States. Section III discusses issues of race, and Section IV examines major Supreme Court decisions. Section V reviews arguments for and against capital punishment. Section VI discusses problems in the administration of capital punishment. Section VII discusses life without the possibility of parole. The article concludes with a discussion of what might be fruitful and important areas for future research, and a look at what the future of the death penalty might be.
Ronald F. Wright
This article shows how charging and plea bargaining can be used as forms of sentencing discretion. It first examines the claims that prosecutorial charging and plea bargaining discretion is a form of sentencing power, which appear to be largely true of American legal systems. Next, it discusses negotiation terms used by government and defense concessions. It also takes a look at the systemic effects of party negotiations and identifies the objectives that prosecutors hope to gain by selecting and amending charges and their sentencing recommendations. This article ends with a section on the limitations of prosecutorial discretion.
Ronald F. Wright
Community prosecution seeks input from local groups to shape the priorities of the prosecutor’s office. Prosecutors who listen to the community aim to develop a relationship of trust between the community and the local prosecutor’s office; such outreach is especially valuable in connection with racial minority groups with a history of negative experiences with criminal justice actors. A community prosecution strategy calls for the office to work with community partners both upstream and downstream from the criminal courtroom. The upstream efforts involve diversion of defendants out of criminal proceedings and into treatment and accountability programs outside the courts. Downstream efforts include programs to promote the smooth re-entry of people returning to the community after serving a criminal sentence. Community prosecution is best accomplished in offices committed to collection and use of data, transparency, and accountability to the public.
Due to the under-representation of females, public officials have paid less attention to understanding their offending or to developing and assessing prevention and intervention strategies for them. Attention to female offenders is now considered important because their numbers are growing in all spheres of criminal justice. This article explains what is currently known about girls and their juvenile justice experiences. It discusses the difficulty that exists in identifying gender bias because of the nature of juvenile justice processing. It then describes data sources about the offending patterns of girls and boys and examines how gender appears to affect juvenile justice processing. Following this, the article identifies difficulties for girls in access to treatment and services. It highlights deficiencies in knowledge about female-specific treatment. Finally, it gives recommendations for an integrated framework to assist in learning more about the problems girls face and ways to make their experiences with juvenile justice systems successful.
Miriam H. Baer
In matters of lawmaking, ascription of fault, and imposition of punishment, corporate prosecution diverges from traditional understandings of what criminal law is, how it should be made, and how it should be implemented. Contemporary criminal law scholarship seeks to restrain the government’s enforcement and lawmaking powers in regard to punishment. At the same time, corporate crime scholarship presses in the opposite direction, urging government prosecutors to punish more often, more severely and more creatively. This divergence merits scrutiny and a measured reconsideration of corporate criminal law’s reform. If the specter of unrestrained prosecutorial discretion provides sufficient reason for criminal law’s contraction and reform, presumably those reform principles ought to apply as well to the world of corporate crime, where limiting principles are almost no-where to be found.This chapter recites criminal law’s fundamental tenets (aspirational as they may be) and highlights the particular ways in which corporate punishment diverges from and ultimately ignores them. It considers the normative implications of an “unbound” corporate criminal law and concludes by arguing for legislative reforms that would not only improve corporate criminal law’s adherence to the legality principle, but also impose needed restraints on the prosecutors who have been tasked with investigating, sanctioning and effectively regulating corporate misconduct.
Milton Heumann, Rick Kavin, and Anu Chugh
“Courtroom workgroup” is a term used to describe the ongoing relationships between judges, prosecutors, and defense attorneys. These three interrelated relationships define how the central figures operate and indeed how a case progresses. The authors survey the existing literature on such workgroups and conduct twelve interviews with key stakeholders in the workgroup structure at both the state and federal levels. Such interviews allow the authors to compare the literature—often decades old—to the experiences of judges and attorneys in today’s courtrooms. The authors examine how the relationships in the three courtroom roles explain some case outcomes, but also examine the host of other variables which arguably sometimes individually, and more often collectively, contribute to a richer, more nuanced, and more comprehensive understanding of court outputs and outcomes, including the nature of workgroups themselves. The authors caution against “concept hagiography”—i.e. too enthusiastically touting the explanatory power of the concept being studied, while giving shorter shrift to underlying explanatory variables. Finally, note is taken of how the recent election of exceptionally progressive prosecutors in several major jurisdictions may lead to opportunities for quasi-experimental testing of how changes in workgroups affect case outcomes.
Julian V. Roberts
This article explores the role of the victim during sentencing and parole release proceedings in the United States and other common law jurisdictions. It reviews the empirical evidence of the effects of the victim's participation and distinguishes sentencing from parole. This article also introduces the principle of proportionality, which serves as either a main consideration in the setting of penalties, or as a limit placed upon the allowable severity of punishment.
The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice
Franklin E. Zimring and David T. Johnson
This article tries to show how capital punishment can become a destructive influence on American criminal justice. It first determines that due to the availability of the death penalty, there have been misrepresentations in the law of homicide. This has also led to “penal inflation,” which refers to the increased use of prison terms of life without parole (LWOP). It then notes that the general acceptance of most death penalty abolitionists of the use of LWOP sentences has resulted in an involuntary increase in the use of LWOP—one that exceeds the moderating effect on the use of the death penalty. It then addresses the continuous controversy over capital punishment, which has drained huge amounts of attention, resources, and energy that could have been used on reforms.
Darryl K. Brown
Criminal disclosure rules in all common law jurisdictions are organized around the same sets of conflicting aims. Pre-trial evidence disclosure is essential to fair and accurate adjudication. Yet certain types of information, such as identities of undercover operatives and ongoing law enforcement surveillance, must be kept confidential. Beyond these tensions, disclosure practices face new challenges arising primarily from evolving technology and investigative tactics. This chapter describes divergent approaches across common law jurisdictions—especially among U.S. states—to these challenges and offers explanations for their differences. It also sketches the technology-based challenges that discovery schemes face and offers options, or tentative predictions about their resolution. Differences often turn on who decides whether to withhold information from the defense—judges or prosecutors—and when certain information must be disclosed. Broader disclosure regimes tend to put greater trust in judicial capacity to dictate or at least review hard questions about the costs, benefits, and timing of disclosure; narrower systems leave more power in prosecutors’ hands. Technology has multiplied challenges for disclosure policy by vastly increasing evidence-gathering tactics and thus the nature and volume of information. Disclosure rules adapted fairly easily to the rise much forensic lab analysis. But fast-growing forms of digital evidence is more problematic. Defendants may lack the time to examine volumes of video and technical resources to analyze other data; sometimes prosecutors do as well. The chapter identifies some possible solutions emerging through technology and law reform, as well as trend toward greater judicial management of pre-trial disclosure.
This article presents an overview of drug and other specialty courts. Section I defines specialty courts and traces their growth in number and types. It also explores the factors that sparked the specialty court movement. Section II examines drug courts, the most popular and prominent type of specialty court. It outlines key features of the drug court model, reviews the evidence of their effectiveness in reducing criminal behavior, and identifies neglected issues. Section III considers other manifestations of specialty courts and the emerging research evaluating the effectiveness of these courts. Section IV probes the policy implications of specialty court research and what this body of research suggests about the long-term viability of the specialty court movement.
David S. Tanenhaus
This article traces the ideological origins and legal foundations of the juvenile court. It examines juvenile courts at work in the early twentieth century, their guiding principles, and the later development of federal juvenile justice in the 1930s. It also assesses the U.S. Supreme Court's due process revolution that introduced more procedural requirements as well as lawyers into juvenile court during the 1960s, but simultaneously undercut one of the rationales (i.e., “the rehabilitative ideal”) for having a separate justice system for juveniles. It further focuses on the “get tough” era of the 1980s and 1990s, a time when most states made it easier to prosecute adolescents in the criminal justice system. Finally, it gives a brief discussion of future of the juvenile court. Despite jurisdictional changes, procedural reforms, and the erosion of the rehabilitative ideal, the juvenile court remains a flawed but resilient fixture in modern American governance.
LaTosha Traylor and Beth Richie
This article focuses on the steadily increasing number of females being admitted in corrections. It emphasizes the need for gender-based programs inside and outside prisons, and observes that drug offenses seem to be the main reason for the increase of female inmates. Most of these women have experienced physical—and even sexual—abuse, which makes treatment even more challenging. This article identifies some new programs that can address the needs of female inmates, particularly mothers and their children.
Daniel P. Mears
This article is focused on front-end processing in the juvenile court. The front end of juvenile justice refers to initial court decisions about how to process cases. The article discusses how the traditional mission of the juvenile court, which emphasizes punishment, treatment and services, and individualized attention, contributes to the goals and structure of front-end decision-making. Following this, it reveals two critical front-end activities: screening and assessment and informal and formal processing encompassing the roles of intake officers and prosecutors in these activities and how they comport with the juvenile court's traditional mission. Furthermore, it explores the stakes involved in front-end decision-making, including the potential impacts on how cases are processed and describes the implications of front-end processing for policy and practice. It concludes with a call for better monitoring of and research on front-end juvenile court processing and its impacts on recidivism, juvenile crime rates, and other outcomes.
Robert Apel and Daniel S. Nagin
This article begins with a discussion of key concepts of deterrence. Section II turns to empirical research on general deterrence. It considers the deterrent effect of the penultimate and ultimate legally prescribed sanctions, imprisonment, and execution. Section III discusses the deterrent effect of police, and reviews studies of aggregate police presence in addition to police deployment strategies. Section IV evaluates the strength of the evidence for perceptual deterrence, and the interplay of sanctions, perceptions, and behavior among individuals. The article concludes with some general remarks, a cautionary message about the limits of deterrence as a crime-control policy, and recommendations concerning future deterrence-based inquiry.
Rasmus H. Wandall
The chapter provides a comparative overview of current hiring and learning strategies in prosecution services. It draws on empirical examples from all parts of the world. Specifically, the chapter compares the hiring of chief prosecutors and frontline prosecutors, it compares how learning is organized and carried out, and it describes and discusses the most significant individual methods of learning currently applied by prosecution services. The comparison shows some level of convergence of techniques and strategies. However, prosecution services continue to vary significantly in how they organize and carry out hiring and in how prosecutors learn. To some degree these variations reflect different levels of professionalization and legal accountability, but they also reflect the markedly different ideals, roles, and functions that drive prosecution services in different societies and legal cultures. These differences make for very different conditions under which new and better ways of hiring and learning can be implemented with a view to ensure qualified and legitimate prosecution services.
Jennifer L. Skeem and Jillian K. Peterson
This article provides a vivid description of how persons with mental illness continually find themselves involved in the corrections system. It first explains how their unique needs are interpreted into relevant management problems for corrections agencies. It discusses the 1970s deinstitutionalization movement, where the mentally ill were moved out of state hospital and placed in the community. Unfortunately, most of these mentally ill persons became unemployed, homeless, and even abused drugs and alcohol, which placed them in and out of corrections. This article emphasizes that there is a move towards adequate knowledge on how to identify and effectively treat persons who have mental illnesses, and notes that the public is becoming even more sympathetic to giving services to the nonviolent mentally ill who can be supported within the community.
Increasing Discretionary Prosecutor’s Powers: The Pivotal Role of the Italian Prosecutor in the Pretrial Investigation Phase
This essay considers the increasingly prominent role played by the prosecutor in the Italian criminal justice system, focusing on the investigation and pretrial phase. The assumption is that in the past two decades the trial phase has lost its relevance and that the crucial decisions for the outcome of criminal proceedings are made more and more often during the investigation and pretrial phase, where the prosecutor enjoys considerable discretion, although formally the legality principle still rigidly rules in the Italian system. Two steps need to be taken to improve the current situation and to fill the gap between reality and theory. The first is starting to interpret the principles of the constitution as allowing discretionary choices by the prosecutor. The second is to strengthen prosecutors’ accountability, but without affecting their independence from the government.