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This chapter provides details on a famous case involving prosecutorial discretion-—the deportation case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action” (then called “nonpriority status”) which at the time was published as an “Operations Instruction.” Deferred action is a form of prosecutorial discretion that has been used as a remedy for individuals facing unusual circumstances for many years. This chapter summarizes some of the cases heard by the federal courts about whether the then new “deferred action” guidance functions as an administrative convenience to the government or as a benefit to the individual. This chapter also summarizes the early guidance on prosecutorial discretion issued by the immigration agency.

This chapter provides an introduction to the structure of the immigration process and a short history of the dissolution of the Immigration and Naturalization (INS) and the creation of the Department of Homeland Security (DHS) following the 9/11 attacks. This chapter underscores the significant role of the DHS in exercising prosecutorial discretion and the fact that all three of its major agencies—U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE)—have the authority to use this discretion. This chapter explains how the DHS may exercise prosecutorial discretion during different stages of the enforcement process. Finally, this chapter describes the humanitarian and economic reasons that prosecutorial discretion is an element of the immigration system.

The introduction sets forth the concept of prosecutorial discretion in immigration law. It also explains how the book is organized and the author’s reasons for writing it. “Prosecutorial discretion” refers to a decision by a government employee or attorney or the acting immigration agency (as opposed to a judge) to abstain from enforcing the immigration laws against a person or group of persons. Public interest over prosecutorial discretion peaked in June 2012 when President Barack Obama announced a program called Deferred Action for Childhood Arrivals (DACA). Critics labeled the administration’s memoranda on prosecutorial discretion and DACA as excessive and politically motivated. Whether or not these policies were widely publicized for political reasons, understanding prosecutorial discretion and the important role it plays in U.S. immigration law is essential.

This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, which have established jurisdiction that conforms to international law — an affirmative obligation to exercise their jurisdiction. That obligation is a uniform obligation applicable to all ICC crimes. Some doubt is expressed as to whether this essentially categorical obligation is entirely satisfactory. While it is a well-founded general rule, account should have been taken (or should be taken in the future) of the fact that there might be exceptions to that rule. However, the Statute fails to accommodate genuine alternatives to criminal prosecutions and does not set forth parameters, which could guide States in considering whether and under what conditions they may opt for mechanisms such as truth commissions, traditional forms of justice, and the exercise of prosecutorial discretion.

This chapter examines and rejects two ways of answering the question: What should public prosecutors do when victims withdraw their support for the prosecution of domestic-violence cases? The first answer claims that prosecutors should simply do whatever the law requires of them. This answer is inadequate insofar as it assumes a degree of ruliness in prosecutorial decision-making which is inconsistent both with the principle of opportunity, and insofar as it rests on a mistaken assumption that legal rules provide fully determined answers to legal questions. A slightly more promising answer to the above question draws upon the framework provided by the distinction between the public and private spheres. While this approach is significantly more promising than the first, it too proves inadequate due to the public/private dichotomy's tendency to obscure rather than illuminate the very values upon which it is grounded.

This chapter untangles the tensions leading to, and at times undermining, the use of prosecutorial discretion in immigration enforcement. In response to the mounting immigration crisis and in the absence of comprehensive immigration reform, President Obama enlisted prosecutorial discretion; however, in what we call the limits of discretion, this policy soon too came under fire—with ICE officers charging that the initiative went too far and immigrant advocates charging that the policy did not go far enough. The chapter reviews the legal history leading up to the Morton Memos, which serve as the backbone of prosecutorial discretion for the Obama administration, and ends with an examination of prosecutorial discretion in practice, exploring who is being deported and why. Deferred Action for Childhood Arrivals—DACA—is discussed as an important form of prosecutorial discretion for Dreamers. The chapter contributes to understandings of street-level bureaucrats and the law in action.

This chapter discusses the prosecutorial discretion exercised by three incumbents in the post of Chief Prosecutor in the International Criminal Tribunal for the Former Yugoslavia: Justice Richard Goldstone (1994-96), Justice Louise Arbour (1996-99), and Justice Carla Del Ponte (1999 onwards). The Goldstone era was characterised by very public indictments and Rule 61 proceedings aimed at raising the Tribunal’s profile. Arbour deployed the legal force of the Tribunal to ensure that it was a fully functional criminal court by the time she departed. The Del Ponte era was characterised by a more public and open approach to discussing ongoing investigations.

This chapter provides an introduction to the structure of the immigration process and a short history of the dissolution of the Immigration and Naturalization (INS) and the creation of the Department of Homeland Security (DHS) following the 9/11 attacks. This chapter underscores the significant role of the DHS in exercising prosecutorial discretion and the fact that all three of its major agencies—U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE)—have the authority to use this discretion. This chapter explains how the DHS may exercise prosecutorial discretion during different stages of the enforcement process. Finally, this chapter describes the humanitarian and economic reasons that prosecutorial discretion is an element of the immigration system.

This chapter provides details on a famous case involving prosecutorial discretion-—the deportation case of John Lennon and the efforts undertaken by his attorney, Leon Wildes, to encourage the immigration agency to publish its policies about prosecutorial discretion. The Lennon case is significant because it triggered the publication of the immigration agency’s first guidance on “deferred action” (then called “nonpriority status”) which at the time was published as an “Operations Instruction.” Deferred action is a form of prosecutorial discretion that has been used as a remedy for individuals facing unusual circumstances for many years. This chapter summarizes some of the cases heard by the federal courts about whether the then new “deferred action” guidance functions as an administrative convenience to the government or as a benefit to the individual. This chapter also summarizes the early guidance on prosecutorial discretion issued by the immigration agency.

The introduction sets forth the concept of prosecutorial discretion in immigration law. It also explains how the book is organized and the author’s reasons for writing it. “Prosecutorial discretion” refers to a decision by a government employee or attorney or the acting immigration agency (as opposed to a judge) to abstain from enforcing the immigration laws against a person or group of persons. Public interest over prosecutorial discretion peaked in June 2012 when President Barack Obama announced a program called Deferred Action for Childhood Arrivals (DACA). Critics labeled the administration’s memoranda on prosecutorial discretion and DACA as excessive and politically motivated. Whether or not these policies were widely publicized for political reasons, understanding prosecutorial discretion and the important role it plays in U.S. immigration law is essential.

This chapter presents three cases that demonstrate the wide-ranging power and discretion of the American prosecutor. In each case, the prosecutor's actions deeply influenced the lives of the accused. The first case (Delma Banks) was almost executed by the state of Texas before the Supreme Court reversed the conviction. The second case show that when Dwayne Washington told prosecutors he couldn't prevent his actions, they followed through on their threat to charge him as an adult and as a result he faced charges that carried a life sentence in adult prison. Lastly, the favorable treatment afforded Andrew Klepper meant that he could avoid prison after committing a violent sex offense—a rare outcome in these types of cases. Moreover, a brief history of the American prosecutor, and the importance and dilemma of prosecutorial discretion, are provided. Furthermore, an overview of the chapters included in this book is given.

Plea bargaining is often confronted with several criticisms and these are presented at the beginning of this chapter. However, the chapter emphasizes that plea bargaining should not be considered as the primary cause of the failure of the criminal justice system to punish wrongdoers. Plea bargaining was the first discretionary decision to be identified by observers of the criminal process. Since its process includes a number of decisions, attempts to control plea bargaining is complicated. This chapter illustrates how courtroom work groups have important consequences for the control of plea bargaining and how group norms serve as a powerful constraint on prosecutorial discretion. Several attempts at abolishing plea bargains are also illustrated. However, the chapter argues that the various attempts to ban plea bargaining do not inspire optimism about abolition as a solution to the problem of prosecutorial discretion, rather, regulation of discretion control is more useful.

This chapter focuses on prosecutorial misconduct. In particular, it attempts to illustrate that the line between legal prosecutorial behavior and illegal prosecutorial misconduct is a thin one. It also examines whether a number of factors, including the Supreme Court's jurisprudence and the prosecutorial culture of power and lack of accountability, create a climate that fosters misconduct. It concentrates on Brady violations—the most common form of misconduct—and explores how and why prosecutors continue to engage in illegal behavior with impunity. In addition, it discusses prosecutorial misconduct that result in a death sentence. It is stated that the legal profession must take the lead in instituting meaningful reform that will assure oversight and strict accountability when prosecutors break the law.

This chapter describes the complex patchwork of jurisdictional age, transfer, and blended sentencing laws that determine where, in any given state, the juvenile justice system leaves off and the adult criminal justice system begins.

This chapter describes the prospects for reform of the prosecution function. In particular, it discusses the specific proposals designed to control prosecutorial power and bring meaningful accountability to this important function of the justice system. It explores the possibilities on the elimination of the arbitrary exercise of prosecutorial discretion, and on the establishment of initiatives to strengthen the current mechanisms of prosecutorial accountability. The entire profession must play a significant role in demanding reform and requiring the highest standards of practice from the prosecution community. Reform should consider public information campaigns; prosecution review boards; and racial disparity studies. Of the many reform efforts suggested in this chapter, some may work in some jurisdictions but not in others. None of the proposals may be suitable in some locations, demonstrating the need for continued efforts to improve and develop the prosecution function.

This chapter describes prosecutorial discretion in the issue and practice of charging that can apply to both state and federal prosecutors. Although the prosecutor in Daniel Ware's case handled homicide cases in the same office, his approach was entirely different and much more typical. There was at least as much evidence of self-defense in Ware's case as in David McKnight's case, yet the prosecutor did not once considered presenting this evidence to the grand jury. It is doubtful that race or class played a conscious role in his decision-making process, but dismissing the charges against Ware was never a consideration. In line with this, this chapter explores whether the different outcomes can be traced to the way prosecutors exercise discretion during the charging process. It also demonstrates how prosecutors single-handedly control the charging process. The prosecutorial practices described in this chapter frequently produce uneven and unjust results, but they are common, legal practices. It is clear that continuing the same approach to prosecution without consideration of broader notions of fairness will continue to produce the same results—inequitable treatment of victims and defendants in the criminal justice system.