Friday, January 21, 2005

CLS Sentencing Panel – Prosecutorial Discretion and Its Challenges

The first panel addressed the topic of prosecutorial discretion and its changes. The moderator was CLS Professor Paul Shechtman.

The panelists were:

Martha Coakley, District Attorney, Middlesex County, MA
Michele Hirshman, First Deputy A.G., New York State
Nancy King, Professor, Vanderbilt University School of Law
Ronald F. Wright, Professor, Wake Forest University School of Law

What follows are some highlights from the panel discussion. This is by no means a complete or official report on the symposium; the Columbia Law Review will have an official report soon. All errors are my own.

This panel will explore whether prosecutorial discretion holds the keys to state sentencing, as many say does in the federal system.

Ron Wright

Prof. Wright began his comments by discussing the regulatory imbalance in sentencing. Analogizing the imbalance to other more traditional areas of regulation, he suggests that we can learn from the regulatory imbalances in sentencing.

On the topic of prosecutorial guidelines, Prof. Wright noted that some states like Kansas (and Minnesota) considered establishing prosecutorial guidelines, but in the end abandoned the effort. At least one state – Washington – has experimented with the idea of prosecutorial guidelines. These are internal guidelines, however.

Prof. Wright spent a fair amount of time talking about New Jersey, a state he described as not the hot bed of sentencing reform.

Nancy King

Whereas Prof. Wright’s focus was on macro-sentencing issues, Prof. King focused on the micro picture.

She noted that a great deal of the sentencing disparity debate has focused on racial disparities and disparity among sentencing judges. Missing from the analysis is a study of the mode of conviction. For example, sentences will vary depending on whether the defendant chose a bench trial instead of a jury trial, or went to trial at all. This is what some have called the guideline’s dirty little secret.

Prof. King is in the midst of studying data from 5 states (Pennsylvania, Maryland, Minnesota, Kansas and Washington) to study the disparities that arise based on different modes of conviction. This is a work in progress but she shared some of her preliminary results.

In Maryland and Pennsylvania she found that when the defendant chooses a jury trial, they are much more likely to be incarcerated.

(Except for cocaine offenses in Pennsylvania where bench trials are more likely to result in incarceration, but incarceration rates are lower in bench trials for simple possession).

In Washington, whether the defendant pled guilty, chose a bench trial or a jury trial, the rate of incarceration did not vary in a statistically significant manner.

In Minnesota she examined 3 offenses and found that in 5th degree drug cases, a bench trial meant the defendant was less likely to go to jail.

Prof. King also observed that in mandatory guideline states the bargain is over the charge, not the sentence, because there is no room to bargain about the sentence. Some have suggested that there needs to be a year between the top and bottom of the guideline for there to be meaningful sentence bargaining.

Michele Hirshman

Michele Hirshman has been working for the NY Attorney General’s office for the last 6 years. She immediately observed that it is important to get prosecutors to see themselves as seeking justice, not convictions.

In NY, the discretion of prosecutors is very limited. Grand jury proceeding place major restrictions on what a prosecutor can do, making it difficult to build a case. The prosecutor has to present a very big part of their case to the grand jury. Elaborate evidentiary rules that constrain how they can prove a case.

She discussed the significance of electing judges and prosecutors, arguing that this democratic check is the best way to constrain prosecutors.


Martha Coakley

Martha Coakley began her presentation by asking whether we were asking the right questions? First, we thought the problem was sentencing. We addressed that. Then we thought the problem was prosecutors. But what about the role of the defense counsel?

She suggested that better funding and treating defense work as a highly respected profession is an important way to check prosecutors.

She observed that in Massachusetts they have Rule 25(b)(2) which allows judges to reduce a charge if it’s unfair. Judges have more discretion than prosecutors. This is an important check on the prosecutor.

Finally, she argued that all crimes are not created equal. In child abuse cases the ability to intervene early is of utmost importance. Someone who abuses kids needs a different sentence and rehabilitative program than a bank robber.

We spend too much money on putting people in jail and focusing on sentencing guidelines.

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