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September 9, 2008

A sentencing approach to dealing with prosecutorial misconduct

Professor Sonja Starr has posted this interesting and provocative paper on SSRN. The piece is titled "Sentence Reduction as a Remedy for Prosecutorial Misconduct," and here is the abstract:

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively.  Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict.  When granted, such remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct.  To avoid such windfalls, courts must refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned.

This Article accordingly proposes adding sentence reduction to current all-or-nothing remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant.  It argues that several prosecutorial incentives combine to make sentence reduction an effective deterrent.  Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.

September 9, 2008 at 12:46 AM | Permalink

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