CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 21, 2014

Oliver on Prosecutorial Discretion

Oliver wesleyWesley Oliver (Duquesne Law School) has posted Charles Lindbergh, Caryl Chessman, and the Exception Proving the (Potentially Waning) Rule of Broad Prosecutorial Discretion on SSRN. Here is the abstract:

Broad prosecutorial discretion is generally accepted by courts and legislatures and is widely blamed by academics for the explosion in the American prison population. Statutory revisions and judicial interpretations of kidnapping law, however, provide an exception to the deference generally given to prosecutors. The very high-profile execution of Caryl Chessman quite publicly raised the question of whether kidnapping, then a capital crime in California, was defined so broadly as to permit a prosecutor to obtain the death penalty for a number of non-capital crimes, such as robbery and rape. Chessman’s case raised widespread concern about the unchecked power of prosecutors and prompted reform of the specific law that led to his execution – kidnapping. For roughly the past two decades, academics have renewed concerns about unlimited prosecutorial discretion, but no single case has drawn attention to the cause. The more generalized problem in our prison system, however, has not escaped the public’s notice. This country’s epidemic of incarceration has raised considerable alarm, something academics attribute to the broad scope of criminal laws empowering prosecutors to seek prison sentences of ever-increasing lengths. This last term, in two virtually unnoticed cases, the Supreme Court appeared to take up the invitation of the academy to rein in the power of prosecutors by limiting the scope of traditional forms of criminal liability. Whether the Supreme Court’s recent incursion into traditionally state doctrines of criminal liability is a bell weather event or not remains to be seen, but the Court has traditionally avoided considering long-existing doctrines of criminal law and the academic criticism of criminal law’s broad scope extends far beyond the aspects of complicity and felony murder the Court considered last term.

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