Obstructing justice : the federal government’s disuse of deferred prosecution agreements for non-corporate defendants

Deferred prosecution agreements (DPAs) are voluntary agreements between prosecutors and defendants in which the government agrees to suspend prosecution for a specified period of time while the defendant is monitored for compliance with certain conditions. Though Congress modeled the legislation authorizing federal use of DPAs on pretrial diversion programs targeting nonviolent, nonrecidivist drug offenders, the Department of Justice today uses DPAs almost exclusively for resolving corporate criminal liability. Given the federal government’s emphasis on remedying mass incarceration and the collateral consequences of criminal convictions, expanding the federal use of DPAs to the class of offenders and offenses for which such agreements were intended represents an unexplored opportunity for achieving meaningful criminal justice reform.LawPublic Affair

Leveling the Playing Field: Applying Federal Corporate Charging Considerations to Individuals

The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison. Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of Justice (DOJ). However, this Note posits that the DOJ has already paved the way to enhanced guidance for federal prosecutors when charging individuals with crimes. This is because the DOJ’s prosecutorial guidance for charging corporations with federal crimes is more robust than the guidance for charging individuals. In particular, a discussion on collateral consequences is included in the corporate charging guidance, yet lacking in the individual charging guidance. This enhanced corporate guidance has had the purposeful impact of curtailing the prosecution of corporate crime. This Note argues that a similar discussion of collateral consequences in the individual charging guidance could have important and far-reaching effects on the federal criminal regime. Perhaps more importantly, such a discussion could remedy some of the unfairness presented by the current system in which federal prosecutors are guided to consider a superior set of factors before charging corporations with crimes

Leveling the Playing Field: Applying Federal Corporate Charging Considerations to Individuals

The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison. Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of Justice (DOJ). However, this Note posits that the DOJ has already paved the way to enhanced guidance for federal prosecutors when charging individuals with crimes. This is because the DOJ’s prosecutorial guidance for charging corporations with federal crimes is more robust than the guidance for charging individuals. In particular, a discussion on collateral consequences is included in the corporate charging guidance, yet lacking in the individual charging guidance. This enhanced corporate guidance has had the purposeful impact of curtailing the prosecution of corporate crime. This Note argues that a similar discussion of collateral consequences in the individual charging guidance could have important and far-reaching effects on the federal criminal regime. Perhaps more importantly, such a discussion could remedy some of the unfairness presented by the current system in which federal prosecutors are guided to consider a superior set of factors before charging corporations with crimes

A Gateway to Future Problems: Concerns about the State by-State Legalization of Medical Marijuana

[Excerpt] “Before 2009, every American presidential administration had been uniform in its policy of consistently enforcing the nation’s drug laws. Pursuant to federal law, possession, use, or cultivation of any drug deemed illegal by Congress was, universally, a prosecutable offense. Notwithstanding this unwavering policy, throughout the 1990s and early 2000s, the marijuana industry continued to grow, and several states legalized medicinal marijuana despite the standing federal prohibition. Moreover, President Barrack Obama, shortly after taking office, broke precedent with his predecessors when he put forth a policy of non-enforcement through a publicly released memorandum authored by the then Deputy Attorney General, David Ogden, (hereinafter Ogden Memo or Memo) “provid[ing] clarification and guidance to federal prosecutors in states that have enacted laws authorizing the medical use of marijuana.” In this Memo, Ogden discouraged expenditure of “limited investigative and prosecutorial resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Following the release of this Memo, many more states have enacted legislation that would legalize medical marijuana, and accordingly, during the Obama administration, the medical marijuana industry has demonstrated incredible growth. Furthermore, it is projected to continue to grow exponentially over the next five years.

George Washington’s Attorneys: The Political Selection of United States Attorneys at the Founding

This Article examines the relationship between the Nation’s first President and the selection of United States Attorneys. It argues that politics played an important, if not primary, role in the President’s selections. George Washington sought those who would represent the government’s interests, adhere to the government’s policies, and advance Washington’s political goals. His selections also demonstrated Washington’s requirement of loyalty to America. In this respect, the politicization of United States Attorneys occurred at the outset. Part I of this Article defines politicization and identifies its four aspects. Part II describes the United States Attorney position as understood through the 1789 Judiciary Act and state experience. Part III examines how Washington’s selections and selection process included three of the four politicization categories. The concluding Section briefly explores the ramifications of politicization and its potential benefits in today’s prosecutorial environmen

Prosecutorial Discretion in Three Systems: Balancing Conflicting Goals and Providing Mechanisms for Control

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. Finally, all national systems are facing the challenge of increasing caseloads. The United States differs from France and Germany in the training and selection of prosecutors, in the understanding of their role, and in the structure of prosecutorial authority. This chapter explores how these differences affect the balance each system has struck among the competing goals of accountability, neutrality, efficiency, accuracy, and equal treatment, how these systems differ in the availability of mechanisms to establish and implement policies, and how each is responding to the challenges of increasingly heavy caseloads. This chapter begins with a description of the U.S. approach to the structure of prosecutorial authority, the training, selection and ethos of U.S. prosecutors, and the scope of prosecutorial discretion in the U.S. Part II turns to a comparison of the French and German systems. On the basis of this foundation, Part III then considers how the three systems are resolving some of the key tradeoffs between the goals of efficiency, accuracy, democratic accountability, neutrality, consistency, and the need for mechanisms to set priorities and policies. It concludes that the structure of prosecutorial authority is continuing to play a significant role in each system’s distinctive response to prosecutorial discretion. In contrast, differences in the traditional understanding of the prosecutor’s role seem to be of diminishing importance as each system responds to the pressure of increasing caseloads

The Necessity of the Good Person Prosecutor

In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor