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"Pro-Prosecution Judges: 'Tough on Crime', Soft on Strategy, Ripe for Disqualification"

By Douglas A. Berman

The title of this post is the title of this interesting new piece available via SSRN by Keith Swisher.  I have been told that this article has been "adored by every criminal defender, public or private, who has happened to read it," and this abstract helps explain why: In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, ?tough on crime? elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the "groundbreaking" Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called "tough on crime") campaigns and attendant electoral pressures...continue to full post

Full post as published by Sentencing Law and Policy on November 23, 2010 (boomark / email).