The Prosecutor and the Press: Lessons (Not) Learned from the Mike Nifong Debacle

Current projections indicate that by 2050, two in every three people will live in urban areas, and that cities will accommodate 3 billion people during this period. Cities are consuming three-quarters of the world's energy and causing three-quarters of global pollution. To reduce these impacts, new technologies have been considered in the development of smart sustainable cities, but technology has not always favoured the idea of sustainable consumption. To address this issue, we have aimed to focus on identifying the role of sustainable consumption within implementations of smart cities’ projects across Europe. We have selected a set of smart city projects in 76 cities in Europe from CONCERTO initiatives, Mapping Smart Cities in Europe, Energy Study for the Stockholm Region and Joint European Support for Sustainable Investment in City Areas and classified them according to: smart governance, smart mobility, smart living, smart environment, smart citizens and smart economy. Furthermore, we established a number of categories for the classification of the evaluated projects based on their relevance to sustainable consumption, and considered several solutions for the integration of sustainable consumption in smart sustainable cities. The results show that in 18.9% of the projects, sustainable consumption is not relevant at all. The second classification shows the percentage of the remaining categories where sustainable consumption is relevant; 8.3% consider sustainable consumption as relevant even though it was not implemented in the project. These cities aim to achieve a higher level of sustainable consumption, which is expected to be included in future projects. If they keep themselves in this category, their behavioural consumption patterns will not change and the impact of citizens on the cities will remain the same. The majority of the projects, 54.2%, implemented technology to reduce consumption but if the projects do not coincide with the behaviour of citizens, a big rebound effect will occur. 37.5% of the projects consider relevant sustainable consumption to its full potential and this can change citizen’s behaviour. In conclusion, sustainable consumption is relevant in most of the projects analysed, with new technologies available to help energy savings and reduction of our consumption. However, if there is a lack of smart consumption from the citizens, the technologies available might not be sufficient and consumption could increase. One quarter of the analysed smart cities projects still do not consider the consumption behaviour of the citizens. This can be changed through campaigns and explanations targeting the population on how to manage and reduce energy and resource consumption. To reduce the negative impact of the cities’ growth, projects considering smart sustainable cities need to integrate sustainable consumption policies that account for citizens' behaviour

Undue Influence: A Prosecutor's Role in Parole Proceedings

Professor Cassidy explores what it means for a prosecutor to act as a “minister of justice” in the context of parole proceedings. He argues that prosecutors should not perceive themselves as zealous advocates in what is essentially an administrative setting, and that prosecutors should not oppose release simply because they believe that the nature and circumstances of the crime warrant continued incarceration. Rather, Cassidy argues that prosecutors ordinarily should refrain from personally testifying at parole hearings, and should submit written comments to the parole board only in those rare situations where the prosecutor is in possession of otherwise unavailable information pertaining to an inmate’s post-conviction behavior that would assist the board in making an accurate legal and factual determination. Cassidy surveys the approaches taken by parole board statutes and regulations in fifty states and discusses which of those approaches properly calibrate the scope and limits of a prosecutor’s input in release decisions

(Ad)ministering Justice: A Prosecutor\u27s Ethical Duty to Support Sentencing Reform

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities. Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses. Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts. The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations. Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences. Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above. A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature. While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them. The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process

Reconsidering Spousal Privileges after Crawford

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider their spousal privilege rules in light of Crawford —many of which are poorly conceived, confused, and outdated—and should reform these statutes to add a spousal crimes exception to both the adverse testimonial privilege and the confidential communication privilege

Strategic Austerity: How Some Law School Affordability Initiatives Could Actually Improve Learning Outcomes

The legal profession is facing profound and perhaps irreversible changes. Whether you view these striking demographics as a “crisis” likely depends on the location of your perch. If you are a tenured professor at a T14 law school or a senior partner at an NLJ 250 firm, you may view the trends we have been discussing today as cyclical corrections. If you are an unemployed graduate looking for work or an untenured professor at a lower-tier school that is struggling to stay afloat, you may be more likely to view these trends as permanent and paradigm shifting. While applications to American law school have been steadily dropping since 2005, the last three years have seen the most dramatic changes. Between 2010 and 2012, the total number of applicants to U.S. law schools decreased by 25%. This year alone -- 2012-2013 -- the number of applicants dropped another 19%. By 2014, the legal academy may for the first time face an open enrollment situation where the total number of available seats exceeds the number of applicants. Most law schools have responded to this sharp application decline in one of two ways. Many schools have dramatically reduced their class sizes, which entails foregoing tuition revenue. Lower gross revenue means schools must seek out opportunities to cut costs. Other schools have kept their class sizes relatively stable by offering more scholarship assistance to attract students (essentially increasing their discount rates). This approach too requires expenditure cuts, because absent additional non-tuition sources of funding (such as gifts or endowment) spending more money on scholarships means spending less money on something else. Law schools cannot make up for this lost revenue by continuing to raise their tuitions at rates that far outpace inflation. A continued upward spiral in tuition threatens to further exacerbate the downward spiral in applications. On average, law school tuition in the United States increased 375% at private law schools and 820% at public law schools between 1985 and 2009. During this 25 year period, law schools on average increased their tuition between 6-15% each year, while inflation averaged only 3%. By way of comparison, tuition for MBA students at our nation’s top management schools increased only 80% in the past decade, an average increase of 4-6% per year. Reining in the law school tuition spiral is critical to restoring consumer confidence in the value of the product we are selling -- especially in a climate where the job prospects for the graduates of some law schools are increasingly bleak. Legal educators are now engaged in some very difficult and painful conversations about the financial model of legal education. Schools that take an ostrich-like approach to this challenge risk becoming obsolete or irrelevant. What follows are seven proposed changes to the structure of legal education that could simultaneously reduce overall costs to law students, and improve the quality of their education. Quality is not always synonymous with price. With vision and lots of hard work, it may be possible to do more with less. Three of my proposals will require amendments to ABA accreditation standards. The political and institutional climate now seems ripe to make these reforms. Many ABA accreditation standards are perceived to impede experimentation and innovation in legal education, and to primarily benefit academics (who largely have captured the accreditation process) over students and the practicing bar. The President of the American Bar Association has recently appointed a “Task Force on the Future of Legal Education” that is looking at the structural and economic models of legal education, and the impact of rising tuition and falling employment rates on crushing student debt. The Task Force is soliciting comments and testimony from all sectors of the profession, and some of its members have predicted “bold” and perhaps even “radical” reform. My hope is that several of the proposals presented at today’s symposium will be submitted for consideration by the Task Force in the critical months ahead

Caracter, Credibility, and Rape Shield Rules

Rape shield laws have played an important role in protecting complainants and jurors from some of the most pernicious and ill-founded assumptions about sexual autonomy and consent. Yet the development and application of these rules have left many thorny questions. The policy debate has now shifted from whether and how the accuser\u27s prior sexual conduct should be admitted to prove consent or lack of credibility due to what was once termed unchastity (now universally condemned and rightly prohibited) to whether and how the accuser\u27s prior sexual conduct should be admitted to support a more specific and logically relevant argument for dishonesty. That is, when prior sexual conduct itself involves dishonest behavior, the defendant is not offering the prior incident to support a general character trait for mendacity because the complainant has been sexually active; rather, the defendant is arguing that the complainant has a character trait for untruthfulness because the accuser has lied. One narrow but critical question we need to confront as evidence and rape law progress during the Me Too movement is whether the jury, in assessing a complainant\u27s credibility in a rape prosecution, should be allowed to hear about prior false allegations of sexual assault made by the accuser. This article focuses on rape shield rules throughout the United States, highlighting how these evidence rules have been stretched beyond their original purpose to prevent a defendant from raising incidents in the accuser\u27s sexual history that may be highly pertinent to a jury\u27s determination of who they should believe. Specifically, it addresses limitations courts have placed on inquiring into prior false allegations (PFA) of sexual assault by the accuser to prove lack of credibility in the present case. The author argues that some courts in the United States have mistakenly weighed the accuser\u27s privacy interests and the court\u27s interests in protecting the jury from being confused or misled ahead of the defendant\u27s fundamental right to a fair trial. The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of the truth. Yet the state of the law at the intersection of prior false allegation evidence, rape shield rules and the Sixth Amendment protections for confrontation and compulsory process leaves the admissibility of this particular type of evidence highly contested and uncertain. The confusing and in places incoherent state of the case law on PFA-both definitional and procedural-underscores the need for a clarity that only a legislative solution can provide. This article proposes a next wave of reform of rape shield rules that specifically addresses this form of proof, and that appropriately balances the interests of victims, defendants, and the judicial process

Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields

Character and Context: What Virtue Theory Can Teach Us About a Prosecutor\u27s Ethical Duty to Seek Justice.

A critical issue facing the criminal justice system today is how best to promote ethical behavior by public prosecutors. The legal profession has left much of a prosecutor’s day-to-day activity unregulated, in favor of a general, catch-all admonition to “seek justice.” In this article the author argues that professional norms are truly functional only if those working with a given ethical framework recognize the system’s implicit dependence on character. A code of professional conduct in which this dependence is not recognized is both contentless and corrupting. Building on the ethics of Aristotle and modern philosophers Alasdair MacIntyre and Bernard Williams, the author argues that virtue theory can help bridge the gaps in prosecutorial ethics where other forms of moral reasoning fail. The author analyzes three especially difficult ethical problems frequently confronted by prosecutors in the field. He demonstrates not only that the Model Rules of Professional Conduct and the ABA Criminal Justice Standards fail to answer any of these complex questions, but also that future attempts to more closely regulate how prosecutors should act in any of these nuanced situations are unlikely to succeed. The author argues that honesty, fairness, courage, and prudence are the primary virtues that citizens have a right to expect of their public prosecutors. He then demonstrates how these four key virtues might provide important guidance to conscientious prosecutors striving to do what is right. The author concludes by offering several insights into how the field of virtue ethics might inform both the structure and organization of government law offices, and the manner in which individual prosecutors working within these offices might perceive and fulfill their professional roles