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Prosecutorial Reform and the Myth of Individualized Enforcement
Get PDFThe American prosecutor’s legitimacy faces unprecedented challenges. A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement. This myth posits that prosecutors base discretionary decisions on case-specific facts and equitable circumstances rather than generalizable criteria or categorical nonenforcement practices, such as the policies some reformist prosecutors have adopted that disfavor prosecuting marijuana possession or abortion offenses or seeking the death penalty.
This Article is the first to identify and critically examine the myth of individualized enforcement. It draws on a review of historical evidence and research on contemporary prosecutorial practices to show that prosecutors have long engaged in categorical nonenforcement in relation to vice laws, property offenses, and even certain areas of violent crime enforcement. By situating reformist prosecutors’ policies within this broader context, the Article exposes how the myth of individualized enforcement has been weaponized to delegitimize reform efforts while shielding conventional prosecutors from scrutiny.
The Article also excavates the deeper distinctions between reformist and conventional approaches to categorical nonenforcement that the myth of individualized enforcement serves to hide from view. Reformist prosecutors tend to adopt centralized, formal, and transparent nonenforcement policies that aim to redistribute the benefits of prosecutorial leniency to historically marginalized groups. Conventional prosecutors, in contrast, have often dispensed categorical leniency in an informal, covert manner and in contexts that tend to reproduce existing hierarchies of race, class, and gender. By surfacing these divergences, the Article aims to reorient academic and political discourse about prosecutorial reform toward the more constructive end of evaluating different visions of discretionary justice and the institutional structures that will best align prosecutorial power with democratic values
2025 Commencement Program
Get PDFhttps://digitalcommons.nyls.edu/commencement_progs/1094/thumbnail.jp
Alumni Spotlight: Rosemarin Belliard ’17
Get PDFhttps://digitalcommons.nyls.edu/community_news/1129/thumbnail.jp
New York Law School Magazine, Vol. 41, No. 2
Get PDFhttps://digitalcommons.nyls.edu/alum_mag/1027/thumbnail.jp
Human Rights and Foreign Policy: South Africa\u27s Genocide Complaint Against Israel at the International Court of Justice
Get PDFOn December 21st, 2023 the South African Government filed an urgent application to the International Court of Justice (ICJ) in the wake of Israel\u27s military activities in Gaza in response to the attack in Israel on October 7th in which more than 1,200 Israeli citizens were killed and several hundred were taken as hostages. The Israeli government responded to the attacks and the taking of hostages by launching a military campaign into Gaza, with the express purpose of destroying Hamas and especially its ability to attack Israel in the way that it did on October 7th. The first few days of Israel\u27s military campaign resulted in a number of civilian deaths and injuries, as well as considerable destruction of infrastructure, especially health facilities. In its Application to the ICJ, the South African government requested that the ICJ address the issue as a matter of extreme urgency because of the nature of the violations of rights and the ongoing, extreme and irreparable harm being suffered by Palestinians in Gaza. In this article I address the following questions: What factors motivated the South African government to pursue this momentous action against the state of Israel? (In addressing this question, I pay specific attention to the role of human rights in South Africa\u27s foreign policy, as well as the historic connection between the African National Congress (ANC), the prior ruling party and now in a governing coalition, and the
Palestinian Liberation Organization and the longstanding support for the struggle of the Palestinian people for statehood.) What was the substance of the complaint and how did the ICJ respond? What are the benchmarks to assess the observance of human rights in South Africa\u27s foreign policy? In other words, if states commit themselves to a human rights-based foreign policy, as South Africa has done, what are the parameters by which such a commitment can be evaluated
