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Cultivating Sense: Cultural Change in the Prosecutor\u27s Office
Get PDFProsecutors exercise broad discretion. They are widely viewed as the gatekeepers of the criminal justice system. To date, studies on prosecutors in different jurisdictions have largely focused on how to conceptualize, manage, and eventually control the exercise of prosecutorial discretion. Scholars have recently turned their attention to the importance of internal organizational management and leadership’s role in changing office culture as a means to regulate prosecutorial discretion. But we have limited empirical evidence as to how changes occur within a prosecutor’s office and what precise role organizational leaders play during this process. This Article constructs a new paradigm for the understanding of cultural change within prosecutors’ offices. It reveals a troublesome paradox about modern prosecutorial power: I argue that, to transform organizational culture, prosecutors need to forge a new type of power based on what I refer to as “sense-making authority.” Meanwhile, the same power enables prosecutors to create an opaque process that bypasses organizational structure and reduces external accountability. To build my theory of cultural change, I rely on a comparative case-study approach based on ethnographic research. The research sites of the Article were a group of district attorneys’ offices led by “progressive prosecutors” across the United States and a district prosecutor’s office located in a metropolitan area of Taiwan. This Article proposes a contested cultural change model and explores ways in which the model could contribute much-needed theoretical and strategic groundings to the comparative study of prosecutorial reforms across different jurisdictions
“Can You Hear Me Now?”: The Right to Counsel Prior to Execution of a Cell Phone Search Warrant
Get PDFAs advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and the truth-seeking function of our adversarial system by allowing ex parte warrants authorizing invasive searches of a defendant’s cell phone without the assistance of counsel. This Article calls for applying existing Sixth Amendment doctrine to modern technology, much like the Supreme Court’s recent Fourth Amendment jurisprudence. After putting this previously overlooked procedure in context and exploring the shortcomings of current doctrine, this Article analyzes the evolution of the right to counsel jurisprudence, before arguing that a post-indictment search of a cellphone must be interpreted as a “critical stage” in a prosecution entitling a defendant to the assistance of counsel. This Article concludes by discussing how courts can implement this “critical stage” interpretation—and how legislatures can go even further—to vindicate societies’ interest in balancing law enforcement surveillance powers and the privacy rights of individuals
“Black First, Children Second”: Why Juvenile Life Without Parole Violates the Equal Protection Clause
Get PDFThe United States is the only country in the world that allows imposition of juvenile life without parole (LWOP) sentences. This sentencing scheme was born out of the 1990’s “tough on crime” era, when society held the belief that juvenile offenders were “super-predators” and should face adult time for adult crimes. Throughout the years, the Supreme Court has faced numerous cases regarding juvenile LWOP, leading to its 2021 Jones v. Mississippi decision, holding that juveniles may be sentenced to LWOP so long as “youthful qualities,” such as immaturity, recklessness, susceptibility to negative influence, are first considered in sentencing. Today, the LWOP sentence remains available for juveniles based on the court’s discretion. Juvenile LWOP is problematic due to both its ignorance of modern child psychology research and its discriminatory effects on Black juveniles. This Note combines these issues to bring forth a disparate impact claim under the Equal Protection Clause of the Fourteenth Amendment. While disparate impact claims rarely prevail in the judicial system, this constitutional framework provides significant support for legislators to act urgently to abolish juvenile LWOP. There are two substantive issues with juveniles LWOP under the Equal Protection Clause. First, the consideration of transient “youthful qualities” does not adequately represent the full spectrum of juvenile development and criminal disposition according to modern neuropsychology research. Factors such as brain maturity, environmental trauma, and resilience are crucial in understanding children’s ability for rehabilitation. Second, juvenile LWOP is disproportionately imposed on Black juveniles based on implicit biases and racial stereotyping. When analyzing juvenile LWOP using strict scrutiny for a disparate impact claim, the sentence serves no compelling governmental interest because it is based on an incomplete set of neuropsychological data. This Note analyzes the disparate impact claim in detail and concludes that the only solution is to categorically abolish juvenile LWOP. Thirty-two states have already categorically abolished the sentence, showing that most local state legislators support this position. This constitutional argument provides ample support for legislators to act urgently in abolishing juvenile LWOP permanently in all fifty states
