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September 21, 2023

"Fixing Disparate Prosecution"

The title of this post is the title of this notable new article authored by Shima Baradaran Baughman and Jensen Lillquist now available via SSRN. Here is its abstract

America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some U.S. states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance and are told to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense.

Both normative and structural changes are needed.  But proposed normative changes — such as progressive prosecution or evidence-driven prosecution — rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States.

September 21, 2023 at 04:54 PM | Permalink


Since what and whether to charge are executive branch decisions, any statute giving the judicial branch a veto of that decision would be unconstitutional. It would be exactly the same as giving the judicial branch the power to compel or reject executive pardons.

Did these authors ever go to law school?

Posted by: Bill Otis | Sep 21, 2023 6:37:26 PM

Bill, do you think Congress can constitutionally shape prosecutions by denying DOJ funding to pursue criminally certain types of case? This seems to serve functionally as a kind of veto, using the spending clause. Is that kosher in your view?

Posted by: Doug B. | Sep 22, 2023 10:18:31 AM

Doug --

It's possible that the courts would look on Congress's complete denial of funding of prosecuting Crime X as an effective repeal of its statute criminalizing Crime X, and of course the executive cannot prosecute a person for violating a statute that's been repealed. But while a statute is still in force, the executive branch alone has the authority to decided whether to prosecute a person under it, and what the specific charges will be. The piece noted in this entry talks about making the judicial branch an executive above the executive, with a veto over normal charging decisions. But the Constitution creates no such thing as an executive above the executive.

Some decisions are simply not for the courts to make. Charging is one. Pardoning is another. Declarations of war are a third. Simply because criminals want to enlist the judiciary to try to cut down on charges the executive branch has put forward doesn't make it constitutional. And it isn't constitutional.

Posted by: Bill Otis | Sep 22, 2023 10:55:29 AM

To date, Bill, I believe every federal court has enforced the DOJ spending rider precluding prosecutions for state-compliant medical marijuana activity, and I do not believe the Trump or Biden DOJ has ever even argued that this spending rider is unconstitutional. Do you have any cite or support for your constitutional claim? Is it based on text, history and tradition, or is this an Otis common good postulate?

Posted by: Doug B | Sep 22, 2023 11:11:59 AM

Doug --

I never said or even suggested the pot spending rider was unconstitutional. Why would I want to look for support for a proposition I never advanced?

And then there's this: "To date, Bill, I believe every federal court has enforced the DOJ spending rider precluding prosecutions for medical marijuana, and I do not believe the Trump or Biden DOJ has ever even argued that the spending rider is unconstitutional."

Very oddly, you take an altogether different stance when I point out that every federal court has approved the waiver of sentencing appeals and the use of acquitted conduct at sentencing, and the Trump and Biden administrations continue to support both. I guess unanimity among the circuits and bipartisan approval only counts when it favors criminals. My goodness.

Also, your focus on spending preclusion doesn't support the unconstitutional suggestion for structural change in the main entry, which doesn't mention or even hint at anything at all about spending.

For years, the Berman common good postulate has wanted to muddy separation of powers by making executive prosecution decisions reviewable by courts. What's the track record for that in SCOTUS?

Posted by: Bill Otis | Sep 22, 2023 11:50:25 AM

Bill, you made the assertion that "any statute giving the judicial branch a veto of [any charging] decision would be unconstitutional." I believe that is a contestable claim (see my last paragraph), but I decided to ask if you thought it extended to Congress restricting DOJ charging power via the purse, and you said "while a statute is still in force, the executive branch alone has the authority to decided whether to prosecute a person under it."

But Congress for nearly a decade has restricted DOJ prosecution of state-compliant medical marijuana activity, and this spending restriction has been enforced by courts with no discussions of unconstitutionality. That recent history would seem undercut your constitutional claims here. The prohibition of marijuana is still federal law and many are prosecuted by DOJ under it (and no medical marijuana reforms have passed through Congress). But, via the spending rider, federal courts have essentially vetoed DOJ's efforts to prosecute any state-compliant medical marijuana activity. Do you think that is constitutional or unconstitutional?

I am not trying to play "gotcha," but rather exploring whether you think, in this setting, Congress can use the spending power to do what you say they cannot do directly -- namely restrict prosecutorial enforcement of a statute to only certain kinds of cases in certain situations. Especially if we think Congress cannot restrict enforcement without a repeal/amendment of what is covered in a criminal statute, I think this could be a very hard constitutional question. (It would also seem relevant to talk of defunding Trump's federal prosecution.)

And you should realize I am not making constitutional claims about appeal waivers --- my gripe there is the executive branch (you) made up law that finds no expression or support in a duly-enacted statute. So I think we are both seeking to uphold the proper role of the branches. Here I am just eager to better understand your notion that Congress cannot regulate DOJ charging (even though you seem to think DOJ can (and should) circumvent congressional statutes).

Finally, I think the article is making a pitch for procedural change/different scrutiny, not a pure judicial veto. And I believe judicial review of federal charges is common based on, inter alia, motions to dismiss for lack of evidence or vindictive prosecution. I am not an expert on such motions practice, but I assume you believe judges can be allowed to throw out charges based on a lack of evidence (perhaps after ruling on a motion to suppress). Or maybe I am wrong: do think even judicial review of charges for probable cause is unconstitutional?

Posted by: Doug B | Sep 22, 2023 12:45:53 PM

I have recently seen a former physician who has completed his sentence following conviction for section 841(a) prescription drug crimes try to file a Petition for a Writ of Error Coram Nobis, in light of the Supreme Court's 2022 decision in Ruan v. United States, 497 U.S. ____, 142 S. Ct. 2370 (2022). The District Court dismissed his Petition, based upon the Habeas Corpus waiver contained in his written plea agreement. It's not clear how that may go on appeal, since Coram Nobis isn't mentioned in the waiver language. The Ruan decision is retroactively applicable on collateral review. See, UNITED STATES v. IGNASIAK, Case No. 3:08-CR-0027-LC-ZCB, Doc. 535, "Government's Response to Defendant's Second Motion for Leave to Amend 28 U.S.C. 2255 Motion" (Northern District of Florida at Pensacola filed August 17, 2022) (Government concedes that Ruan is retroactively applicable on collateral review, citing Whorton v. Bockting, 549 U.S. 406, 416 (2007)); WELCH v. U.S. 58 U.S. 120 (2016); SCHRIRO v. SUMMERLIN, 542 U.S. 348, 351-54 (2004); DAVIS v. UNITED STATES, 417 U.S. 333 (1974); DIMORA v. UNITED STATES, 973 F.3d 496, 502-507 (6th Cir. 2020)]. There is also an interesting policy question about whether waivers should include retroactively applicable U.S. Supreme Court decisions, which may indicate or suggest that the crime the defendant pleaded guilty to ma not actually be criminal misconduct at all. I am thinking of the McNally, Skilling and McDonnell Supreme Court decisions, which either repudiated an entire theory of criminal liability, or dramatically narrowed statutory interpretation of the scope of criminal liability. See, e.g., UNITED STATES v. LYNCH, 807 F. Supp.2d (E.D. Pa. 2011) (One defendant was still in custody, so he received 2255 habeas corpus relief, and his co-defendant had completed his sentence, so he received Coram Nobis relief, both based upon the Skilling decision). If some of those waivers stand up, a defendant would be left with a felony criminal conviction for conduct that is not or may not be criminal at all. Should retroactive decisions of the Supreme Court be waivable on collateral review? Of course, it has now been more than 1 years since the Supreme Court decided Ruan, so the 2255 window has now closed for the defendants who are still in custody; but Coram Nobis relief has no such 1-year time limit for defenants who are not in custody because they have already completed their sentences.

Posted by: Jim Gormely | Sep 22, 2023 12:48:42 PM

Doug --

I never doubted, and no one doubts, that Congress can repeal a criminal statute in whole or in part (it could also repeal in whole or in part the First Step Act, right?). It has effectively done so in the case of state "medical" pot laws. You say, "...via the spending rider, federal courts have essentially vetoed DOJ's efforts to prosecute any state-compliant medical marijuana activity." But the federal COURTS did not adopt the spending rider. Congress did. You're just trying to turn a commonplace (that Congress can repeal or limit its own statutes) into some revolutionary proposition that the COURTS have a general veto power over executive branch charging decisions they find "disproportionate" to what got charged against some other defendant sometimer somewhere. That latter proposition is the idea this entry is advancing, but it's baloney, which is why you're not providing a SCOTUS case that says any such thing.

"And I believe judicial review of federal charges is common based on, inter alia, motions to dismiss for lack of evidence or vindictive prosecution."

But that is not what this article is talking about. It's talking about allowing courts to dismiss charges for which there is plenty of evidence, and that have been made without any vindictive motive, solely because the court believes that the charge is disproportionate to what the prosecutor's office charged against someone else based on kind of similar (no one says how much similar, or how one would determine the answer) evidence at some other time (weeks or months or years ago). That would be a breathtaking expansion of judicial power at the expense of one of the political branches.

Again, you want to push aside separation of powers and allow courts to become super prosecutors, and make the quintessentially executive branch decision about what charges fit the seriousness of the crime. There is a reason no SCOTUS case approves any such thing, to wit, that SCOTUS understands that courts are not the executive branch. They have their own powers (such as to grant a motion of acquittal NOV where they believe the government's evidence didn't prove the executive's chosen charge), and that is a substantial power indeed, but they don't have the power to determine what the charge should be, or not be, ab initio.

Do you believe in separation of powers or not? If you support the wild idea in this entry, why would you not also support the idea that courts can order the executive branch to grant a pardon to Mr. X based on Mr. X's motion claiming that he's very similar to Mr. Y, who did get a pardon but left Mr. X out?

You want an engorged judiciary and a shrunken executive. But the Framers wanted co-equal branches each with different and distinct powers. I'll stick with the Framers.

Posted by: Bill Otis | Sep 22, 2023 2:04:14 PM

So, presumably Bill, you think Congress could use the spending power to regulate DOJ charging in all sorts of ways, no? So Congress can give the judiciary authority to review charges that are "disproportionate" (or, as now, "state compliant" in the MMJ arena), using the spending power, no? I am trying to see, if Congress wanted to give courts this power of review, if you think such power would be constitutional. The abstract speaks of a "LEGISLATIVELY provided right" by a defendant to seek review. That's what I thought we were discussing.

Bill, did you take the time to actually read and understand another's proposal (at least just the reading the abstract) before asking if they ever went to law school? (Better yet, if you plan to be snarky, consider downloading the article where the authors explain "we propose that legislatures develop a private defense to disparate prosecution" p.5;. see also p. 35 " legislative action is needed.")

I assume you learned in law school the importance of reading carefully and also what it means for something to be "LEGISLATIVELY provided." And yet I am further puzzled because you mention "a statute" in your very first comments, so you seemed to initially understand this as a legislative proposal not a court-based recommendation.

Are you claiming there are some grounds that Congress can permit judicial review of prosecutorial charging and other grounds on which they cannot? Now it sounds like you concede Congress can provide for some types of judicial review of charges.

Posted by: Doug B | Sep 22, 2023 2:30:46 PM

Doug --

"So, presumably Bill, you think Congress could use the spending power to regulate DOJ charging in all sorts of ways, no? So Congress can give the judiciary authority to review charges that are "disproportionate" (or, as now, "state compliant"), using the spending power, no?"

Probably no, but I'd need to see the specific language Congress adopted. You know, "take time to read and reflect."

P.S. If Congress used its spending power to ordain that, "The Senate Judiciary Committee and not the federal courts shall henceforth determine whether a defendant is guilty or not guilty of a charge of espionage," would that be constitutional?

C'mon. You can't just say that Congress can engorge (or limit) the power of the judicial branch by the spending power. There are constitutional limits it would be very nice to see you respect. One of them is that the executive branch alone determines what (if any) charges to bring. Courts are in the adjudicating business, not the charging business. As the Framers understood, but you apparently don't, having a single branch both determine the charge and then adjudicate the charge (it has chosen) is the fast road to tyranny.

P.P.S. Since you didn't answer, I'll ask again. If you support the wild idea in this entry, why would you not also support the idea that courts can order the executive branch to grant a pardon to Mr. X based on Mr. X's motion claiming that he's very similar to Mr. Y, who did get a pardon but left Mr. X out?

Posted by: Bill Otis | Sep 22, 2023 2:54:23 PM


Could Congress eliminate the judicial branch via the spending mechanism?

Posted by: TarlsQtr | Sep 22, 2023 3:25:54 PM

I am on road and cannot respond to Bill quickly, but I can answer you Master Tarls. Other than a Supreme Court, I do not think Congress has to fund any other court.

Posted by: Doug B. | Sep 22, 2023 4:51:17 PM

I believe we are exploring whether and how Congress can regulate the DOJ charging authority/discretion. I concur with you that some extreme circumvention of the executive authority to charge would be unconstitutional --- eg, I do not think Congress could require every DOJ charge to be approved by the Chief Justice and the Speaker of the House. So I agree there are some structural limits on what Congress can do to regulate the DOJ charging authority/discretion. I would say the same thing about the judicial power/discretion to sentence --- eg, I do not think Congress could require every sentencing decision to be approved by the Attorney General and the Speaker of the House.

But Congress surely can constitutionally regulate the judicial power/discretion to sentence. Mandatory minimums have been upheld against challenges they take sentencing power away from judges, and the sentencing guidelines and 3553(a) regulate sentencing discretion in myriad ways. And provisions of 3553(a), especially 3553(a)(6), require judges to do comparison sentencing assessments. Though I assume you agree Congress may not have the AG and the Speaker in charge of sentencing, I assume you also agree that efforts by Congress to regulate judicial sentencing power/discretion through MMs and guidelines are constitutional.

In turn, I think Congress surely can constitutionally regulate the executive power to charge in some way. Examples would seem to include restricting the way DOJ may use funds to prosecute (as Congress has done for a decade with state-complaint medical marijuana offenders). Another example is providing a basis for dismissal based on a purported "defect in instituting the prosecution" such as "preindictment delay" or "selective prosecution." See Federal Rule of Criminal Procedure 12(b)(3)(A).

I also think, if Congress was troubled by the politicization of DOJ, it could write a statute that provided defendants with a right against politically-motivated prosecution. Or, if Congress was worried self defense claims are not respected, I think it could properly enact a law similar to Florida's statute providing "immunity from criminal prosecution" unless and until a prosecutor can show "at a pretrial immunity hearing" by "clear and convincing evidence" that the use of defensive force was unlawful. See Florida Statute 776.032. Or, if Congress is concerned not enough capital prosecutions are being pursued in mass murder cases, I think it could probably require that that mass murderers have to be charged capitally (or could, at the very least, tie funding to capital charging to encourage more capital charges).

I suspect we agree that the constitutional devil is in the detail. Congress cannot radically shift/circumvent the core powers of the other branches, but it can regulate those powers in various ways. Such is the power that comes with Congress being the Article I big dog.

As for your PPS: I do not think courts can ever grant pardons, but I do think Congress could enact a statute providing that Mr. X must be released from prison and/or have his conviction expunged upon a showing that Mr. X "might be" factually or legally innocent or that Mr. X is a similarly situated codefendant of someone who was pardoned. We might call such a statute "compassionate expungement."

PPPS: Upon reflection, as a general matter, statutory regulation of the executive branch seems more constitutionally solid than comparable regulation of the judiciary branch given that the leader of the executive branch has to sign off on statutes generally (and executive officials often have significant influence on the work of Congress). No members of the judicial branch have any formal role (and rarely have much of an informal role) in the legislative process --- although we have recently heard at least one Justice assert Congress has “no authority” to regulate the Supreme Court.

Posted by: Doug B | Sep 22, 2023 10:25:17 PM

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