The American prison system is grappling with a well-publicized carceral crisis. In the words of former U.S. Attorney General Eric Holder, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” And, as a result of developments in federal law over the past few decades, the power of federal prosecutors to decide when and how to charge individuals with crimes is crucial to when and how American citizens go to prison.
Many ideas have been proposed to revise prosecutorial discretionary powers, but few have been heeded by the Department of Justice (DOJ). However, this Note posits that the DOJ has already paved the way to enhanced guidance for federal prosecutors when charging individuals with crimes. This is because the DOJ’s prosecutorial guidance for charging corporations with federal crimes is more robust than the guidance for charging individuals. In particular, a discussion on collateral consequences is included in the corporate charging guidance, yet lacking in the individual charging guidance.
This enhanced corporate guidance has had the purposeful impact of curtailing the prosecution of corporate crime. This Note argues that a similar discussion of collateral consequences in the individual charging guidance could have important and far-reaching effects on the federal criminal regime. Perhaps more importantly, such a discussion could remedy some of the unfairness presented by the current system in which federal prosecutors are guided to consider a superior set of factors before charging corporations with crimes.
Nicole T. Amsler, Leveling the Playing Field: Applying Federal Corporate Charging Considerations to Individuals, 66 Duke L.J. 169 (2016)
Available at: http://scholarship.law.duke.edu/dlj/vol66/iss1/4