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97 Geo. L.J. 1509 (2008-2009)
Sentence Reduction as a Remedy for Prosecutorial Misconduct

handle is hein.journals/glj97 and id is 1521 raw text is: Sentence Reduction as a Remedy for Prosecutorial Misconduct SONJA B. STARR* 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 miscon- duct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts 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 and undeterred. This Article proposes adding sentence reduction to current remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. The Article demonstrates that several prosecuto- rial 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. TABLE OF CONTENTS INTRODUCTION .......................................... 1510 I. THE FAILURE OF CURRENT REMEDIES FOR PROSECUTORIAL M ISCONDUCT ....................................... 1513 II. SENTENCE REDUCTION AS AN ALTERNATIVE REMEDY .............. 1518 A. THE PROPOSAL .................................... 1519 B. SENTENCE REDUCTION AND REMEDIAL DETERRENCE ............ 1520 * Assistant Professor, University of Michigan School of Law. © 2009, Sonja Starr. Thanks to Richard Boldt, Eve Brensike Primus, David Gray, Deborah Hellman, Andy Hessick, Carissa Byrne Hessick, Yale Kamisar, Dan Meltzer, J.J. Prescott, Alice Ristroph, Jeannie Suk, David Super, and Sean Williams for comments on drafts and to Jeff Dubner for research assistance and comments. Earlier drafts have been presented at the Junior Criminal Law Scholars Conference, Harvard Law School's Climenko Workshop, the University of Michigan Faculty Legal Theory Workshop, and the University of Maryland Faculty Workshop---thanks to all participants for their insights. 1509