Criminal Procedure : Week of 26 February 2008

26 February

• Selective prosecution: prosecuting some people, but not others similarly situated with respect to the statute. Requires discriminatory purpose and effect. How does one establish that the selection was discriminatory? If there's no valid basis for making the selection. Maybe there really isn't any law of selective prosecution, in the sense that it calls upon the prosecutor to explain things. But really selective prosecution is a defense.
• You make your argument about selective prosecution to the judge, not the jury: you want the charge quashed as a matter of law before you're actually in jeopardy.
• A "discriminatory purpose" has to mean that the purpose is improper: the reason must be something other than to stop crime. As a general rule, the court doesn't review the prosecutor's charging decisions. This may be a separation of powers issue. The judge doesn't question the prosecutor's policy, but if the defense can establish a prima facie case that the prosecution was motivated improperly, the burden shifts to the prosecutor to say that it's not.
• See, e.g., State v. Ojala: he loses because the court doesn't buy the argument that the purpose was improper. In fact, targeting highly visible people might even be a good idea. Or United States v. Kerley: just the fact that you are protesting doesn't give you the right to break the law.
• State v. McCollum: the statute applies to both men and women, but the investigation aims at the women, and only they get arrested and prosecuted. So we want equal protection in arrest and prosecution cases, but how do we decide what's an improper purpose? Pick up the appellate decision in the assignment bins on the second floor? But this *IS* the appellate decision. Wha?
• Maybe the McCollum court is out of its mind, incidentally: the court ought not to be over-ruling prosecutorial discretion. On the other hand, the prosecutor was somehow so foolish as to not come up with a better reason. If the prosecutor has a sensible reason, can the judge justify overruling it?

27 February

• Sears v. State
  Sort of a contrast to McCollum. The charge had never really been used before. But the fact that he was charged was found to be within the scope of the prosecutor's discretion. Note that the reason the prosecutor didn't want to downgrade this to disorderly conduct was the commercial nature of the offense, even though that's not an element of the sexual perversion crime that was charged.

  It doesn't take a lot of imagination to be able to offer a defense against an accusation of selective prosecution.

• State v. Barman
  Why not charge reckless homicide first degree? Maybe a little too agressive.

  When questioned about use of discretion, answers that are grounded in the purpose for which the discretion was granted are better.

  Could charge again: there was no jeopardy. Did charge again: acquittal.

  One useful ability is to sustain doubt as long as possible: it allows you to examine the evidence from more angles. If you align youself with a view that the defendant is guilty (or innocent), that may blind you to other valid things.

  Discretion, recall, is not just the act of deciding: it is the act of reasoning. (remember from sentencing).

• United States v. Cowan
  This is about the decision not to charge, instead of the decision to charge. Once you've made the decision to charge, it's not just your case any more: you've exercised your discretion. Now you'll have to make some argument that the public interest is served by the dismissal of the case.

  So here, too, there's not much legally imposed constraint on the prosecutor.

• State v. Kenyon
  Here the court suspects that the prosecutor is being devious and placing an undue burden on the defendant.
• State Ex Rel. Unnamed Petitioners
  A very curious document.

  The DA explains why he doesn't bring charges in a fairly notorious case.

28 February

• We didn't always have public prosecutors. England had them even in the 1970s. In a John Doe situation, the judge can essentially second- guess the prosecutor: determine if there is probable cause.
• To a great extent, the racial disparity in the prison population derives from the disparity in deployment of police forces. The police forces often deploy in response to public demand.
• But today, we are starting to discuss sentencing. What kind of a decision is a sentencing decision? A political one? A gut one? A law one? An economic one? A predictive empirical decision?
• 50% of felony sentences are for probation, but we don't have the probationary/surveillance/control facilities to keep up with them.
• Most of the prison espenses are staffing costs-- the decision to imprison on person doesn't have a direct impact on whether we fire a guard.
• Indeterminate sentence: sentence to a length of term in prison, subject to release by parole, with mandatory release at 66% of the sentence. This is part of what led to truth in sentencing: who is doing the sentencing? The parole board. Also the convict, to an extent: in the plea bargain, and by behavior in prison. And the prosecutor: by negotiating the sentence and by charging. So the sentencing decision was pretty widely distributed in the inteterminate system.
• Frankel's book pretty much put the last nail in the indeterminate sentencing structure. It had been pretty much a psychiatric model: there's something wrong with you, and we're going to keep you until you're better. Note that there are two problems here. The first is inequality of treatment. The second is the bogus assumption that treatment works-- compounded by the fact that in cases where someone reforms, we assumed the treatment worked.
• The traditional list of purposes of Sentencing:
  • Deterrence
  • Incapacitation
  • Retribution
  • Rehabilitation

  But note that, with the exception of retribution, these are not purposes. They are strategies to achieve a different end. Is it just to impose burdens on somebody just to make them a better person? What possible claim of justice could there be in that case: my desire to improve you doesn't touch upon a justice interest.

• The language we use for justifying the infliction of pain on other people (e.g., Benthamite: it's for the good of the public) is somewhat philosophical, but it shapes what we do in practical terms. We reference concepts that are desirable (rehabilitation, e.g.), but we may not have practical means to accomplish it.
• Interesting point: the evidence of the supposed disparity under the indeterminate sentencing system was actually pretty thin. They'd just ask a bunch of judges to say what they'd sentence in various test cases. But is that a reasonable way to measure real disparities?
• One justification for changing was that we wanted predictability in sentencing. But why would we want to give precise answers to people who are contemplating crimes? It depends on your view of deterrence. So what price can we hang on, say, rape? Lots of the people who don't rape aren't acting out of fear of the punishment. So would reducing it cause them to make more rapes? Would increasing it cause less? Some, maybe, but isn't that marginal compared to the general tendency not to rape?
• Deterrence is also blurred with incapacitation. Taking one criminal off the street doesn't necessarily prevent certain crimes from being committed.
• A lot of times, you can achieve both deterrence and incapacitation without the use of a prison, but the discourse is carried out entirely in terms of prison sentences.