Commentary on Excessive Prosecutorial Success

Critics of the American justice system have put forth a great deal of evidence that it is unfairly slanted toward the government. In large part, this is attributed to over-criminalization of malum prohibitum conduct and the procedural advantage inherent in the plea-bargain device.

My own position is that “white-collar crime” is over-criminalized and -punished, especially at the federal level, while violent crime is under-criminalized and -punished at all levels.

But the point of this post is that one oft-cited statistic — the very high (95% and above at the federal level) conviction rates — enjoyed by prosecutors is in my view not an ideal proxy by which to gauge the problem.

Why not? Because a hypothetical “ideal” justice system would have a higher rather than a lower conviction rate. Indeed, the ideal system would be one in which 100% of law-breakers were prosecuted with 100% success and no innocent parties were prosecuted.

State prosecution is a burdensome and onerous process even if one is not ultimately convicted, and a system that fails to convict substantial numbers of defendants is by definition a system that frees large numbers of guilty parties and/or inflicts substantial harm on large numbers of innocent parties.

Unless one can show that we presently convict innocent parties at a rate higher than the acquittal rate of some purportedly superior system (which I think is unlikely and unlikely to be shown), a lower conviction rate is not something devoutly to be wished. The better view is toward winding-down over-broad laws and Title 18 in particular.


Law Exams: Long Answers Are Better Answers

Many professors tell their students that they are looking for “well thought-out” or “well organized” answers, as opposed to long answers. It may even be possible that they subjectively prefer such answers.

But long answers will almost always get better grades.

90% of professors grade against outlines they create which have all the issues they believe the question implicates. They read through your answers and tick off points according to the outlines. At the margins, writing a more organized answer will count for something, if only because the professor has an easier time matching your answer to their outline. But they wrote the problem, wrote the answer sheet, and they will grade dozens of exams. It’s not that hard for them to figure out what issue you’re talking about even if it’s not in the most “organized” position possible.

On the other hand, if you miss an issue entirely, you’re going to get 0 points for it. There’s no way to properly organize the missing parts of your answer. Because law school exams are time-pressured, it’s usually impossible (at least if the exam is well-written) for you to hit every issue the professor included — if a law professor has difficulty overloading a three to four hour exam, then there is a problem either with that professor or with the course being taught.

So go all out and hit every issue possible. Your professor may not “like” this (it takes longer to grade long answers!), but he or she will probably give it a higher grade than the “well organized” alternative.

How Victims of Crime Can Help Trial Attorneys

Originally from a comment on the Volokh Conspiracy’s new WaPo home:

The Volokh Conspiracy has sheltered its share of heretics, but these typically are of the “liberaltarian” variety — Professor Cassell’s advocacy (used advisedly) is published here for reasons not apparent to me. 
Put forth by the professor is no less extraordinary a claim than that joint & several liability ought to obtain amongst individuals violating distinct sections of Title 18. This proposal swims against both the overwhelming national trend abrogating J&S liability and the Volokhian/libertarian condemnation of expansive federalization of the criminal law. 
The claim made here goes against sound public policy (if there is such a thing). It was unsupportable as a matter of statutory construction (see the dissent — the majority’s analysis is sound only if the Court has legislative powers). And, perhaps most offensively, it is an absurd exemplar for Prof. Cassell’s purported position: namely that victims ought to have an increased role in the criminal law. 
Victims, as commonly conceived, are not those people of whom unidenifiable photographs circulate on the internet. Victims are mugged, robbed, brutalized, raped, murdered, and worse. These individuals, I think, probably do deserve more of a role in our justice system, but they probably will not have it as any result of the policy preferences prevailing among “Conspirators.”  
Trial attorneys are the beneficiaries of Professor Cassell’s position. I cannot but conclude they are also its backers. No group — certainly not crime victims, the vast majority of whom have have recourse against no solvent party — can hope for the pecuniary rewards trial attorneys must foresee in this essentially novel cause of action. 
Perhaps I am wrong. If so I should welcome an explanation from the Professor or any other Conspirator. For the moment these postings strike me as more problematic even than Professor Epstein’s recent thoughts on intellectual property.