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20 Berkeley J. Crim. L. 1 (2015)

handle is hein.journals/bjcl20 and id is 1 raw text is: 

ISSUE 20:1                                                 SPRING 2015

  Charles Lindbergh, Caryl Chessman,

        and the Exception Proving the

    (Potentially Waning) Rule of Broad

             Prosecutorial Discretion

                        Wesley  M.  Oliver*

       Perhaps  ever since legislatures started defining crimes, they
have given prosecutors a variety of ways to prosecute the same conduct.
Courts have, almost without exception, deferred to legislatures' broad
definitions of crime. Kidnapping statutes are the exception. The high
profile execution of Caryl Chessman in 1960 for kidnapping prompted
considerable scholarly criticism and prompted courts nationwide to
impose   limiting constructions on kidnapping  statutes.  Recently,
scholars have called for a curb in prosecutorial discretion generally,
attributing the explosion in the prison population to broad criminal
codes, mandatory  minimums,  and  sentencing guidelines that provide
prosecutors leverage in plea negotiations. In the last two terms, the
United States Supreme  Court appears to have taken on this concern,
limiting the scope of federal criminal statutes, twice in cases involving
criminal doctrines that are part of most state criminal codes, and once
in a case expressly recognized by many of the parties as an example of
overcriminalization.  The  Supreme   Court  has  rarely considered
ordinary  criminal law doctrines, typically interpreting complex or
jurisdictional aspects of federal criminal statutes. And neither the
Supreme  Court, nor any appellate court in non-kidnapping cases, has
used overcriminalization as a basis for limiting the scope of a criminal
statute. Academics have long criticized the growing prison population,
often attributing the phenomenon to increasing prosecutorial discretion,
a product of overcriminalization. The Supreme  Court's recent cases
suggest that America's mass  incarceration epidemic may be able to

  Professor of Law and Associate Dean for Faculty Research and Scholarship,
Duquesne University. B.A., J.D., University of Virginia; LL.M., J.S.D., Yale. I
appreciate the comments of Wayne LaFave and Frank Zinring on an earlier version of
this article.

Issi EF 20:1

SPRING. 2015

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