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97 Geo. L.J. 1509 (2008-2009)
Sentence Reduction as a Remedy for Prosecutorial Misconduct

handle is hein.journals/glj97 and id is 1521 raw text is: Sentence Reduction as a Remedy for Prosecutorial
Misconduct
SONJA B. STARR*
Current remedies for prosecutorial misconduct, such as reversal of conviction
or dismissal of charges, are rarely granted by courts and thus do not deter
prosecutors effectively. Further, such all-or-nothing remedial schemes are often
problematic from corrective and expressive perspectives, especially when miscon-
duct has not affected the trial verdict. When granted, these remedies produce
windfalls to guilty defendants and provoke public resentment, undermining their
expressive value in condemning misconduct. To avoid these windfalls, courts
refuse to grant any remedy at all, either refusing to recognize violations or
deeming them harmless. This often leaves significant non-conviction-related
harms unremedied and egregious prosecutorial misconduct uncondemned and
undeterred.
This Article proposes adding sentence reduction to current remedial schemes,
arguing that this would provide courts with an intermediate remedy that they
would be more willing to grant. The Article demonstrates that several prosecuto-
rial incentives combine to make sentence reduction an effective deterrent.
Moreover, because sentence reduction could be tailored to the magnitude of the
violation, it could resolve the windfall dilemma and serve as an effective
corrective and expressive remedy.
TABLE OF CONTENTS
INTRODUCTION   ..........................................             1510
I. THE FAILURE OF CURRENT REMEDIES FOR PROSECUTORIAL
M ISCONDUCT  .......................................            1513
II. SENTENCE REDUCTION AS AN ALTERNATIVE REMEDY ..............       1518
A.  THE  PROPOSAL  ....................................         1519
B. SENTENCE REDUCTION AND REMEDIAL DETERRENCE ............ 1520
* Assistant Professor, University of Michigan School of Law. © 2009, Sonja Starr. Thanks to
Richard Boldt, Eve Brensike Primus, David Gray, Deborah Hellman, Andy Hessick, Carissa Byrne
Hessick, Yale Kamisar, Dan Meltzer, J.J. Prescott, Alice Ristroph, Jeannie Suk, David Super, and Sean
Williams for comments on drafts and to Jeff Dubner for research assistance and comments. Earlier
drafts have been presented at the Junior Criminal Law Scholars Conference, Harvard Law School's
Climenko Workshop, the University of Michigan Faculty Legal Theory Workshop, and the University
of Maryland Faculty Workshop---thanks to all participants for their insights.

1509

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