Theorizing Failed Prosecutions

40 Pages Posted: 25 Feb 2021 Last revised: 22 Nov 2023

See all articles by Jon B. Gould

Jon B. Gould

American University - School of Public Affairs; American University - Washington College of Law

Victoria M. Smiegocki

Southern Methodist University - Dedman School of Law

Richard A. Leo

University of San Francisco

Date Written: February 1, 2021

Abstract

Over the last twenty years, the scholarly field of erroneous convictions has skyrocketed, with multiple articles and books exploring the failures that convict the innocent. However, there has been comparatively little attention to the other side of the coin, failed prosecutions, when the criminal justice system falls short in convicting the likely perpetrator. In this article, we take up failed prosecutions, simultaneously seeking to define its breadth and explain its relation to erroneous convictions. We explore potential hypotheses for the existence of failed prosecutions and then compare those theories to a set of failed prosecutions compiled from a moderately-sized district attorney’s office. With almost no prior research on failed prosecutions, these empirical data help to put meat on the theoretical bones of the concept. In the end, we argue that failed prosecutions and erroneous convictions may be seen as different sides of the same coin of miscarriages of justice. Not only do both reflect significant errors by the criminal justice system, but the sources behind each also appear to be surprisingly similar.

Keywords: wrongful convictions, erroneous convictions, failed prosecutions, criminal justice, criminology, criminal law, criminal procedure

Suggested Citation

Gould, Jon B. and Smiegocki, Victoria M. and Leo, Richard A., Theorizing Failed Prosecutions (February 1, 2021). 112 Journal of Criminal Law and Criminology 329 (2022), American University School of Public Affairs Research Paper Forthcoming, SMU Dedman School of Law Legal Studies Research Paper No. 509, Univ. of San Francisco Law Research Paper No. 2021-10, Available at SSRN: https://ssrn.com/abstract=3792518

Jon B. Gould

American University - School of Public Affairs ( email )

Washington, DC 20016
United States

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Victoria M. Smiegocki

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Richard A. Leo (Contact Author)

University of San Francisco ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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