CrimProf Blog

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

Wednesday, November 24, 2021

Vaynman & Fondacaro on Prosecutorial Discretion and the Balance of Power

Anna D. Vaynman and Mark Robert Fondacaro (John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center) have posted Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System (Stetson Law Review, Vol. 52, Forthcoming) on SSRN. Here is the abstract:
The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process. This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial. The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power. Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows. The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

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