Anna Roberts (Seattle University School of Law) has posted Dismissals as Justice (Alabama Law Review, Forthcoming) on SSRN.
Here is the abstract:
More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.
First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.
Second, these cases converge on shared principles of justice. These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, the state’s role in and response to it, and possible responses other than the criminal law. There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.