CrimProf Blog

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

Friday, March 5, 2021

Gould et al. on Failed Prosecutions

Jon B. GouldVictoria M. Smiegocki and Richard A. Leo (American University - School of Public Affairs, Southern Methodist University - Dedman School of Law and University of San Francisco) have posted Theorizing Failed Prosecutions (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this article, we take up failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from a moderately-sized district attorney’s office. With almost no prior research on failed prosecutions, these empirical data help to put meat on the theoretical bones of the concept. In the end, we argue that failed prosecutions and erroneous convictions may be seen as different sides of the same coin of miscarriages of justice. Not only do both reflect significant errors by the criminal justice system, but the sources behind each also appear to be surprisingly similar.

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