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Law Outlines Criminal Law Outlines

Role Of Prosecutor Charging, Selective Prosecutions, Plea Bargaining Outline

Updated Role Of Prosecutor Charging, Selective Prosecutions, Plea Bargaining Notes

Criminal Law Outlines

Criminal Law

Approximately 94 pages

Criminal Law with Professor Rachel Barkow at NYU School of Law.

This is a synthesis of all topics in a fall 2019 class, Criminal Law at NYU School of Law. My notes consist of the important elements of each doctrine, the unsettled areas, and policy justifications....

The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

The Complexities of Crime Control

The Role of the Prosecutor: Charging, Selective Prosecution, Plea Bargaining

Theme: broad discretion, unchecked by courts

Charging considerations Decisions not to charge Selective Prosecution Plea Bargaining

Purposes of Punishment Sympathetic factors

  • Young

  • Poor

  • Mental disease

  • Upbringing

  • Abuse

  • Social pressures

Reoffending risk

Alternatives (diversion)

Limited Resources

Impact on society/individual

Past crim conduct

Political climate/public sentiment

Unreviewable (Attica)

Because

  • Separation of Powers concern

  • Secrecy: protect accused + protect factors in guiding charging decisions

Demanding threshold for gov discovery:

  • D must show that other Ds similarly situated of different race not prosecuted (Armstrong)

Statistic info (anecdotal not enough)

Problem:

Information in gov hands, diff. for D to gather

OK to threaten longer sentence if go to trial IF..

  1. Plea given intelligently + knowingly + voluntarily w/ advice of counsel (Brady)

  2. Evidence supports threatened charge (Bordenkircher)

No physical coercion used

Charging

  • Discretion: little oversight, limited resources, no standard for weighing factors

    • Can file charges whenever there is "probable cause"

    • Considerations:

      • Sympathetic factors (mental health, upbringing, economic hardship societal pressures, age and brain development, first offender v. pattern of behavior, past harm)

      • Victim input

      • Politics/public sentiment

      • Chances of conviction

      • Other options (diversion, rehab)

      • Limited resources

      • Impact on society/defendant

      • Rehabilitative and deterrence effects

      • Chance of re-offending

  • Think about how theories of punishment affect prosecutor's decision to charge

  • Deciding how much to punish and purposes of punishment

    • Retributivism and difficulty of assessing punishment

    • Utilitarianism and the odds of detection [detection is part of deterrence: if you can detect higher percentage of crimes, greater deterrence effect (think low clearance rates of murder in Chicago)] v. amount of punishment

    • Rehabilitation and problem solving courts

    • Incapacitation and risk instruments

Deciding not to charge

  • Unreviewable by the court because of separation of powers (b/w judicial and executive branches) concern

    • Plus unique concern of secrecy (not present in other executive acts)

      • Protect reputation of accused

      • Don't want public to know factors guiding charging decisions

  • Many reasons for prosecutors not to charge despite sufficient evidence (fairness, resources, political)

    • Secrecy of accused/confidential info

    • Resource constraints

    • Political considerations (ex. If prosecutor is elected)

    • Fairness (sympathetic factors)

  • Attica

    • decision not to charge those involved in Attica riots stands, court not mandate exec. action

    • Court says it cannot tell executive branch/prosecutor to bring charges because of separation of powers concern > good law everywhere

    • The decision not to charge is esp. different from other executive acts because of the secrecy to protect accused and to protect government factors in exercising discretion

    • Takeaway: decisions not to charge are unreviewable bc separation of powers concern

Selective prosecutions

  • Picking what to charge on an unlawful basis (focus on race here)

    • Demanding threshold for government discovery (gov turning over discovery regarding charging decisions in a crime category) in selective prosecution claim (even before showing discriminatory intent)

      • ****burden on D to show similarly situated defendants of a different race who could have, but were not charged (or charged in state court where penalties are lower, ex. For crack cocaine)

      • Difficult for D to meet burden because information inaccessible by the public, anecdotal information not enough

      • Policy: (1) resources constrained, don't want to respond to discovery requests (2) assume racial differences in crime rates (not consider racially discriminatory enforcement practices)

  • Armstrong

    • A) Court sets...

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