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Introduction 973 I. Progressive Prosecution as a Political Brand 975 A. Fundamentally Different 979 B. Doing Less 980 II. Progressive Branding and Pitfalls 982 III. Avoiding the Pitfalls 986 Conclusion [...]

INTRODUCTION 1196 I. THE DEVELOPMENT OF THE SIXTH AMENDMENT SENTENCING RIGHT 1197 II. UNDERMINING THE RIGHT WITH THE REMEDY 1208 A. Policy Disagreement 1210 B. Appellate Review 1216 C. Independent [...], The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences. The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right. The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis. Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice. What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment--the liberty interests of criminal defendants and democratic input into individual criminal cases. Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

ABSTRACT There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws [...]

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The article focuses on the role of democracy in the criminal justice system, specifically in the U.S. It highlights two key features, the role of juries in individual criminal cases and the election of criminal justice officials at the local level. It encourages greater involvement of ordinary citizens through direct elections and emphasizes the importance of personal judgment and democracy in jury decisions.

The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees. These efforts have been met with resistance and, in some instances, with legal challenges. Resolving those challenges may prove difficult because local prosecutors straddle three distinct axes within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices. This Essay exposes the significant state variation in the legal classification of prosecutors along these divides, and it explains how that variation not only complicates the legal status of prosecutors within any particular state, but also prevents the formation of a shared understanding of what role the local prosecutor plays in state government. Such an understanding is of increasing importance as the enormous discretion delegated to prosecutors and the deepening partisan divides within states suggest that intense battles over the role of the prosecutor are likely to continue. [ABSTRACT FROM AUTHOR]

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on which they lobbied, the positions they took, and how often they succeeded. Our data tell a complex story of partial success for the prosecutor lobby. Prosecutors are less successful than expected when lobbying against bills, and they are most successful when lobbying in favor of criminal justice reform. By analyzing not only national data, but also data from each state, we document that prosecutorial success is correlated with Republican control of the state legislature. We further conclude that perceived expertise does not drive prosecutorial lobbying success and that legislatures in some contexts respond to the prosecutor lobby much as they would to any other self-interested rent-seeking lobbyists. [ABSTRACT FROM AUTHOR]

The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor elections. The study offers a more complete empirical account of prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore that the more than two thousand local prosecutors are not a monolith; some offices are best understood as political, with contested elections and significant amounts of campaigning, while most appear more bureaucratic, with neither. Recognizing this distinction suggests that accountability efforts require a multifaceted approach. If some prosecutors are more akin to bureaucrats, reformers should not limit themselves to recruiting electoral challengers; they should also consider layering bureaucratic accountability on top of political accountability. Further, at least for now, money in prosecutor politics has served as a moderating, rather than punitive, force. [ABSTRACT FROM AUTHOR]