The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion (original) (raw)
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All of the institutions with which corporations interact are housed with the legal system. Due to this, it is crucial to study not only business strategy but also legal strategy. We study the setting of the U.S. legal system and focus on the prosecutor as the focal actor. The prosecutor selects the statute or statutes used in a case and possesses the ability to switch statutes between the indictment and trial stage, which is crucial to her discretionary abilities. The corporate world is rife with examples of prosecutors using polysemantic statutes, defined here legal statutes that have several potential interpretations. We explore this type of behavior and attempt to disentangle the processes that it involves. To do so, we employ a dataset of nearly 73,000 criminal cases in order to explore the relationship between polysemantic laws and conviction. We confirm our hypotheses that more polysemantic laws are associated with higher level of conviction, controlling for the skill of the p...
BIO: * Acting Professor of Law, UCLA School of Law. I would like to thank Rick Abel, Norm Abrams, Peter Arenella, Michael Asimow, Devon Carbado, Ann Carlson, Scott Cummings, Mirjan Damaka, Scott Dewey, David Dolinko, Sharon Dolovich, Robert Goldstein, Mark Greenberg, Lisa Griffin, Joel Handler, Cheryl Harris, Gia Lee, Harry Litman, Tim Macht, Jennifer Mnookin, Herb Morris, Danny Richman, Arthur Rosett, Seana Shiffrin, David Sklansky, Kirk Stark, Lynn Stout, Carol Steiker, Steve Yeazell, Noah Zatz, and participants in the workshop "Rethinking "Legal Transplants' and "Mixed Jurisdictions,'" organized by Cornell School of Law and the Institut d'Etudes Politiques de Paris (Science Po), Paris, July 2005; the 2005 UCLA Work-in-Progress Summer Colloquium; and the UCLA Junior Faculty Group for their helpful comments on earlier drafts. I also would like to thank Todd Martin and Nick Oberheiden for their research assistance and Scott Dewey and Todd Martin for e...
The Potential Utility of Disciplinary Regulation as a Remedy for Abuses of Prosecutorial Discretion
Duke Journal of Constitutional Law & Public Policy, 2017
This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision — through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules — might serve as a viable and effective mechanism for meaningful review and regulation.In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing charging decisions. Specifically, we suggest that much of the leading scholarship seems to be built on the premise that, as a descriptive matter, as part of the doctrine of separation of powers, and for practical reasons, courts lack the authority and ability to review the prosecutorial char...
If the Supreme Court of Canada’s recent decisions on prosecutorial discretion are any indication, judicial constraint of prosecutorial discretion will continue to be exercised in an exceptionally limited manner. Consider, for example, the Supreme Court’s decision in Babos. One of the central issues of this case was the egregious conduct of a prosecutor who, during the plea bargaining process, threatened to layadditional charges against two accused if they refused to enter guilty pleas. Despite the lower courts’ acknowledgment that the prosecutor’s conduct was unacceptable and despite the call from the trial judge to grant a stay of proceedings, the majority of the Supreme Court refused to justify that stay or provide any other remedies for this misconduct. Even though the prosecutor’s “bullying tactic” was “reprehensible and unworthy of the dignity of her office,” Justice Moldaver, writing for the Majority, ultimately denied the accused’s appeal. Considering the manner in which the lower courts characterized the prosecutor’s conduct (as an abuse of process) and mindful of the strongly worded dissent from Justice Abella, the Majority’s opinion arguably stands for the acceptance, albeit reluctantly, of behaviour that should not have been condoned as well as a resultant dilution of standards that should have been applied in order to guard against injustice.