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Sentence Reduction as a Remedy for Prosecutorial Misconduct

Sonja B. Starr

University of Michigan Law School

September 2, 2008

U of Maryland Legal Studies Research Paper No. 2008-31

Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, such remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid such windfalls, courts must refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned.

This Article accordingly proposes adding sentence reduction to current all-or-nothing remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. It argues that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.

Number of Pages in PDF File: 61

Keywords: prosecutorial misconduct, sentence reduction, remedial deterrence, harmless error, Batson, speedy trial, criminal procedure remedies, prosecutorial incentives, expressive remedies, deterrent remedies, corrective justice

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Date posted: September 5, 2008  

Suggested Citation

Starr, Sonja B., Sentence Reduction as a Remedy for Prosecutorial Misconduct (September 2, 2008). U of Maryland Legal Studies Research Paper No. 2008-31. Available at SSRN: http://ssrn.com/abstract=1262918 or http://dx.doi.org/10.2139/ssrn.1262918

Contact Information

Sonja B. Starr (Contact Author)
University of Michigan Law School ( email )
625 South State St
Ann Arbor, MI 48109
United States
617 821-1222 (Phone)
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