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April 6, 2023

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

April 6, 2023 at 10:07 AM | Permalink


Pro-crime academic from UC Irvine, no less, finds that prosecutors are Very Bad because they don't buy into criminals-are-cool program.

What else is new?

Posted by: Bill Otis | Apr 6, 2023 12:24:02 PM

Biden-era stuff:


Posted by: federalist | Apr 6, 2023 2:13:41 PM

Yeah Bill---what about all the victims of federal drug pushers/smugglers? The criminals are cool crew takes a you know what on dead kids.

Posted by: federalist | Apr 6, 2023 2:15:06 PM

federalist, weren't you suggesting not long ago that the failure to prosecute Hunter Biden means a bunch of federal drug defendants have viable constitutional arguments against their prosecution/punishment?

And does the statement you link on Biden-era stuff mean you think that former Prez Trump has to federally prosecuted for wrongfully handling confidential documents just to make sure future former Prez Biden can be without violating the Equal Protection Clause?

I am still trying to understand how your exciting and novel EP theories work in all these contexts.

Posted by: Doug B | Apr 6, 2023 3:19:17 PM

My EP theories are by no means "novel"--we all agree that Equal Protection principles apply to prosecution decisions. The question is what falls into proper discretion and what does not. There are whispers that Epstein got a good deal because he dug up dirt on the prosecutors--is that a valid basis upon which to offer easy plea terms? What about "home cooking" issues--is that ok in the criminal law context? And let's not forget the Ferguson report--recall that the DOJ thought it extremely problematic that people with pull got over on tickets, code problems etc. I don't recall you scoffing at that portion of the report.

I don't necessarily think that all federal drug defendants have a viable theory--i would like to see AUSAs answering hard questions about the lenience shown to Hunter.

You've already shown yourself to be a bit of a DOJ apologist--your pathetic explanation of why the DOJ suppressed the Hunter laptop story, well they were concerned with disinformation--um, they had had the laptop for over a year. They knew. Ha ha ha ha ha ha.

Posted by: federalist | Apr 6, 2023 3:30:43 PM

Bill - getting front line prosecutors to agree with the concept of reducing incarceration is crucial to the effort to reduce the impact of incarceration on disenfranchised and emotionally disturbed individuals. If they believe in a "war on crime" approach and tend to believe that more incarceration is better, the effort to reduce prison will be all for naught. Brett Miler

Posted by: Brett Miler | Apr 6, 2023 4:05:44 PM

federalist, your EP theories are novel (and seem ridiculous as an actual legal argument) because you have not explained how any clamed individious decision to NOT prosecute person A provides a basis for completely unrelated person B to make a sound EP claim to impact an otherwise lawful prosecution. If DOJ was saying that the invidious decisions to unequally treat poor people in Ferguson, Missouri somehow gave people over age 45 in Ferguson a constitutional right not to pay otherwise lawful parking tickets, I would be scoffing at that part of the report (though you are suggesting an even more ridiculous claim that cops not giving one person a ticket makes all other cop behavior unconstitutional). It is your suggestion there is a constitutional claim for unrelated others based in Hunter's treatment that leads me to scoff at you, and that is why you have been unable to explain your novel EP claims or cite any doctrines (or even law review articles) to support your (very-pro-defendent) notion.

Helpfully, you explain your real (and more sensible) view while fundamentally giving up the game when you say: "I don't necessarily think that all federal drug defendants have a viable theory--i would like to see AUSAs answering hard questions about the lenience shown to Hunter." Let's start with some clarity: you necessarily have yet to provide any support any federal drug defendant having any viable theory here, and maybe that's because you now seem prepared to concede that the proper and legally sound way to address your concerns is in the political realm, not in the courts in totally unrelated cases. You would be on sound ground urging Jim Jordan or others to conduct an oversight hearing in Congress so that there would be "AUSAs answering hard questions about the lenience shown to Hunter." Similarly, if Alex Acosta or others were bullied into an Epstein deal, we should have oversight hearings to get to the truth of the matter -- but we absolutely should NOT concoct a novel EP theory that says Epstein's sweetheart deal means every other child rapist has a new constitutional argument to raise to seek to block their prosecution.

Of course, a careful thinker knows all this, but if you still do not get it, this serves as just another example of how your partisanship blinds your ability to think through (or care about) reasonable facts or legal doctrine. It also leads you to contort explanations into "apologies" of your invention. Anyone reading this blog who thinks I am a DOJ apologist must really be falling into a number of strange rabbit holes.

Posted by: Doug B | Apr 6, 2023 4:32:29 PM

Brett Miller --

Rather than have prosecutors reduce charges to cut back on incarceration, let's go much, much further and have them simply ignore cases two-thirds of the time. If you think that's a fantasy, you might want to look at the Washington Post article revealing that Biden's US Attorney for DC does exactly that. I discussed it here: https://ringsideatthereckoning.substack.com/p/your-tax-dollars-not-at-work

The problem is not incarceration. The ANSWER is incarceration (and other things). The problem is crime and the misery and loss it causes to victims -- victims you should care about but don't, so you can genuflect to the victimizers.

Posted by: Bill Otis | Apr 6, 2023 6:01:09 PM

Bill - reducing incarceration will reduce the long term number of crime victims by having less and less potential inmates schooled in crime by incarceration. With a recidivism rate of two-thirds to three-quarters, prison use only seems to perpetuate crime by incarcerated individuals. Brett Miler

Posted by: Brett Miler | Apr 6, 2023 7:30:26 PM

Brett Miller --

By your "logic," we should do away with prison altogether, thus to eliminate rather than merely reduce the supposed criminogenic effects of incarceration. And that's what you really want, isn't it?

Yes? No? If no, why not?

There is this problem, though. As the prison population swelled dramatically for 20 years, 1990-2010, crime FELL, also dramatically. And now that the prison population has declined for the last ten years, the amount of crime is up. Goodness gracious! So it seems that prison reduces, rather than increases, crime.

Posted by: Bill Otis | Apr 6, 2023 9:01:21 PM

Brett Miller,

If incarcerated, I’d say they already learned how to be a criminal.

Posted by: TarlsQtr | Apr 6, 2023 10:41:35 PM

TarlsQtr --

You've got it backwards. The real reason any given inmate won't learn to be a criminal in prison is that his fellow inmates are not themselves criminals. They're all innocent! Didn't you know that? Just read the comments section here for a couple of weeks and you'll find out.

Posted by: Bill Otis | Apr 7, 2023 6:14:02 AM

Check out this article about predictably unhinged prosecutors as bullies (learnt from schoolyards where they'd been victims):

Posted by: fluffyross | Apr 7, 2023 1:06:22 PM

fluffy --

I answered your cited article the first time you put it up. Instead of responding, you just slip it in deep down in another thread (also and as ever anonymously). You must have been a real stand-up character in the schoolyard.

Posted by: Bill Otis | Apr 8, 2023 11:05:34 AM

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