Judicial dismissal in the interest of justice.

• Author: Beety, Valena Elizabeth

ABSTRACT

Of the 1.6 million Americans in prison, most inmates are serving sentences for non-violent offenses. Who is responsible? Hyper-incarceration is not simply due to outdated drug laws or stringent sentencing. Courts in the last thirty years have taken a lackadaisical back seat. Prosecutors are failing in their gate-keeping function nationally. Most simple arrests are prosecuted without even evaluating the substance of the case. Police stops can snowball into convictions through our plea system. In short, the criminal justice system provides no systemic accountability for its own results.

This Article focuses on this lack of accountability and proposes a conceptual shift, as well as a practical solution: pivoting accountability to the courts. Twelve states recognize the capacity of judges to dismiss cases in the interest of justice. Dismissal in the interest of justice allows a court to dismiss a procedurally proper, but unjust or unjustifiable, cause of action. Thus, dismissing cases in the interest of justice can provide a check where few exist for overzealous prosecutions, race-based patrolling, and overuse of "three strikes" laws. In addition, dismissals can require more consistency and reliability in evidence and in state prosecutions, whether on the misdemeanor or felony level. And ultimately all states can create this capacity through state laws and state rules of criminal procedure.

Transforming our prison paradigm moves beyond shifting individual laws; court-initiated dismissals can address the underlying problem of accountability. By finding a practical application already in use by some states, this Article creates a useful framework for both ends of the spectrum: conceptually reforming our system while practically assisting individual cases and lives.

TABLE OF CONTENTS INTRODUCTION I. THE CURRENT CRIMINAL JUSTICE SYSTEM: THE WAR ON DRUGS, PRISON EXPANSION, ELIMINATION OF PAROLE, AND THE DECREASE IN JUDICIAL DISCRETION A. The Growth of Prisons and a Rise in the Incarceration Rate B. The Social Impact of the Government's Containment Approach to the Criminal Justice System II. JUDICIAL CLEMENCY: DISMISSING CASES IN THE INTEREST OF JUSTICE A. Dismissal in the Interest of Justice and the Courts' Burgeoning Capacity B. Dismissal in the Interest of Justice: Greater Transparency and Equitable Discretion C. Pivoting Away from Prosecutorial Misconduct and Prosecutorial Discretion III. SUPPORT FOR THE BENCH AND DISMISSAL IN THE INTEREST OF JUSTICE A. Why Non-Procedural Dismissals Matter B. Increased Support for Judicial Discretion and Alternative Resolutions to Cases IV. THREE STRIKES AND DISMISSAL IN THE INTEREST OF JUSTICE V. APPLICATION OF DISMISSAL IN THE INTEREST OF JUSTICE: MISDEMEANORS A. Dismissal in the Interest of Justice and Misdemeanors B. Conceptual Comparisons to De Minimis Infractions VI. STATE LAWS AND RULES OF CRIMINAL PROCEDURE A. States and Dismissal in the Interest of Justice 1. State Specific Statutes a. New York b. California 2. Recommendations B. State Rules of Criminal Procedure CONCLUSION Introduction

"I have always found that mercy bears richer fruits than strict justice." (1)

--President Abraham Lincoln

Crack cocaine offenders are getting a second chance. On January 30, 2014, the Obama Administration called on defense attorneys to locate inmates who had been harshly sentenced under drug laws and to encourage them to apply for clemency. (2) One month prior, President Obama granted clemency to eight federal inmates sentenced under the old crack-cocaine law. He commuted their sentences saying,

Because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.... Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness. (3) These steps toward "restoring ... justice and fairness" signal a changing response to American drug crime prosecution and hyper-incarceration. They indicate a return to the natural rights and principles of the Constitution to be executed by multiple branches of government. (4)

In the judicial branch, some state courts have the power to dismiss cases sua sponte. Acting "in the furtherance of justice," these courts can consider context, as well as the just or unjust application of laws. Where this responsibility has traditionally lain with prosecutors, this Article advocates a shift of accountability to the courts. Courts may dismiss cases that should never have been filed "in the interest of justice."

Accountability lies at the heart of the criminal justice system. In the face of hyper-incarceration, this Article seeks to address this underlying lack of accountability and shift the system. Rather than piecemeal reform through individual laws, this systemic shift can alter public conceptualization of the criminal justice system and reinstate public trust.

And yet this Article is more than a concept; it is a practical application that some states are already implementing. Courts can apply this conceptually radical shift rather simply--as a small act of reprieve for misdemeanor convictions. This Article thus creates a useful framework for both ends of the spectrum: conceptually reforming our system while practically assisting individual cases and lives.

Courts, in the thirty years since the rise of hyper-incarceration, have largely been constrained as onlookers. Prosecutors control charging and plea offers. The final criminal and civil punishment is often accepted as a result of no one individual action - rather just the system in motion. Shifting accountability to the court may ensure justice and true service of the community by a criminal prosecution.

Twelve states permit trial courts to dismiss counts--either misdemeanor or felony--on their own accord. Eight of these states do so through statute, four through state rules of criminal procedure. For those state courts that do not currently have the capacity to sua sponte dismiss cases in the interest of justice, the further promulgation of state rules of criminal procedure can create this power for courts in support of judicial authority.

In the face of predominant prosecutorial power, court discretion can balance a system that indiscriminately undermines the future life choices of nonviolent offenders through a simple arrest. Part I of this Article provides background on the current state of the criminal justice system. This Part discusses the War on Drugs, prison expansion, and heightened prosecutions, along with the elimination of parole and decreased judicial discretion. Part I also addresses civil punishments for criminal convictions and the burden of these punishments on other members of society. In brief, these punishments result in temporary or permanent exile.

Part II proposes a framework of judicial accountability and a shift away from the current justice model, specifically reclaiming the power of courts to dismiss cases--on their own initiative or that of defense counsel - in the interest of justice. This pivot away from prosecutors can provide greater transparency; shifting the responsibility may remedy how off-course our system has travelled.

Part III discusses the conceptual and ethical quandaries of judges facing unethical laws or punishments. These judges are charged with the responsibility of either upholding such laws and punishments or following internal or social morals and ethics. Part III examines the ultimate purpose of the Article's proposed shift in accountability, as well as potential drawbacks. This Part responds to those challenges using a philosophical analysis of the role of judges in criminal proceedings.

Part IV, in contrast, provides the most practical usage of dismissal in the interest of justice: three strikes laws. This Part discusses current dismissals and how this power can most practically be exercised. Part IV elaborates on the usefulness of dismissal in the interest of justice in response to mandatory minimum sentences, focusing specifically on its relationship with three strikes laws.

Part V continues the application with the real usage of dismissal, predominantly in misdemeanor cases, offering a conceptual comparison to de minimis infractions. This Part also briefly explains the importance of misdemeanor dismissals, even though misdemeanors are often construed as insignificant, minor convictions.

Finally, Part VI details how differing state laws provide the avenue for courts to dismiss actions and compares the approaches implemented by different states. Part VI concludes by proposing that states consider creating a relevant rule of criminal procedure, promulgated by the state supreme court in most jurisdictions.

This Article considers how courts can rehabilitate our criminal justice system by reclaiming their own authority and dismissing cases in the interest of justice. By creating this capacity for courts, either through legislation or through state rules of criminal procedure, society can prevent criminal prosecutions that are against the interests of justice.

1. THE CURRENT CRIMINAL JUSTICE SYSTEM: THE WAR ON DRUGS, PRISON EXPANSION, ELIMINATION OF PAROLE, AND THE DECREASE IN JUDICIAL DISCRETION

   In his seminal book, The Presentation of Self in Everyday Life, Erving Goffman posits that artificial, willed credulity happens on every level of social organization--an attempt to ignore any reality that may disrupt the social structure. (5) A woman trips and others look away, pretending that she did not fall. Until recently, increased policing and heightened sentencing served a similar purpose: to maintain a fiction that truly dangerous people in society can be identified, punished, and separated from the rest of society, primarily by prosecutors. The reality of hyper-incarceration and the disproportional application of drug laws to poor people of color began...