Topics in Criminal Law Theory: Discretion and Power
This seminar will examine the distribution of discretion and power in the American criminal justice system. A hallmark of our system is that decision makers at virtually every stage of a prosecution enjoy wide latitude to interpret and apply the law according to their own judgment. This latitude carries both the promise of individually-tailored justice and the threat of arbitrariness and abuse. We will read a variety of legal and theoretical materials with the goal of understanding why discretion exists, how discretion is (or is not) disciplined by law, and how discretion can and should be regulated. Specific topics will include police discretion, prosecutorial discretion, plea bargaining, jury nullification, and sentencing. Students must have a taste for difficult philosophical prose but need not have a substantial background in philosophy.
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