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September 11, 2008

Two new must-reads from SSRN

Two of my favorite profs have new pieces on SSRN.  Here are the titles, links and abstracts:

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed the misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who commit serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

This Essay argues that Federal Sentencing Guidelines would benefit from substantial restructuring and simplification.  Although the status of the Guidelines has recently changed from mandatory to merely advisory, the Guidelines remain a highly influential part of the federal sentencing process, and their reform remains an urgent priority. Simplified guidelines, as proposed in 2006 by a working group of sentencing experts, would provide fairer sentences, better accommodate new procedural safeguards, and insulate the Guidelines from counterproductive tinkering by the political branches. This Essay appears as part of a forthcoming issue of the Federal Sentencing Reporter (Vol. 20, No. 5) containing advice on sentencing policy for the new President and Congress.

September 11, 2008 at 07:31 PM | Permalink


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Some New SSRN Articles: Hattip to Doug Berman at Sentencing Law and Policy for posting the SSRN links to two new articles on SSRN. The first article, Prosecutorial Shaming by Adam M. Gershowitz, examines "instances in which appellate courts reverse... [Read More]

Tracked on Sep 12, 2008 7:02:54 PM


A policy such as this would free thousands of convicts in California whose only crime was buying a joint or some pills. Whiel drug abuse is horrible, few politicians have the guts to admit that the "war on drugs" is the wrong approach. If states were given teh right to decide their own drug policy, states would save money and individuals would be free to make their own choices.

Posted by: JT | Sep 12, 2008 12:40:05 PM

As far as federal prosecutors, the possibility of an OPR investigation, which must be self-reported, would appear to provide sufficient deterence from committing the same sort of misconduct again. A call from an OPR attorney sends a chill down the spines of AUSAs, far more than a reversed conviction.

The need to "signal trial judges" fails to consider the fact that judges do a fair amount of talking amongst themselves on attorneys who appear before them. They already know the good and bad attorneys.

Finally, the "pedagogical lesson" argument appears silly. Junior prosecutors can learn the same lesson whether the prosecutor is named or not, just by reading the opinion. Moreover, junior prosecutors rarely commit serious misconduct. Ever see a DWI conviction reversed for vouching? Brady? The seasoned prosecutors, who know where the lines are drawn, are the most likely to push the envelope.

If prosecutors must be named in published opinions, should defense attorneys also be shamed in ineffective assistance claims?

Posted by: | Sep 12, 2008 5:00:03 PM

Those of us who read 8th Circuit cases may have noticed that if the district judge is affirmed in all respects the CTA will drop a footnote early in the opinion and identify the judge. If any part of the decision is reversed - no footnote (even if the reversal is on a trivial aspect of the case). Obviously if you read the opinion on Westlaw you will get the district judge identified by them. I have always found this practice to be a bit odd - are district judges incapable of seeing their name attached to the word "reversed" without mental trauma?

Posted by: Alan O | Sep 13, 2008 9:31:43 AM

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