Abstract

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

[...]

This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. Part II applies the principles to common prosecutorial lenience scenarios like insufficient evidence, justice-based lenience, transactional lenience, triage, nullification, and mercy. The analysis is necessarily incomplete and tentative. But it reveals that some forms of prosecutorial lenience are more easily justified than others and offers a rough outline for exercising lenience within each category. Part III highlights the dilemma that, in some circumstances, the principles conflict. Specifically, insisting on the first two principles may jeopardize the third. This means that prosecutors, and their critics, will have to consider not just the overall desirability of lenience, but tradeoffs between the quality of prosecutorial lenience and its quantity.

This abstract has been taken from the author's introduction.

Document Type

Article

Publication Date

2024

Publication Information

102 Texas Law Review 1541-1559 (2024)

Comments

Written for the symposium on Mercy (2024) held at University of Texas School of Law.

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