Abstract
Those uninitiated to the reality of the United States’ criminal justice framework may believe that judges are the most powerful actors in the system. These casual observers watch crime shows filled with trials where judges make rulings and yell at people who are out of line. Viewers may believe in the adversarial system as a war between zealous prosecutors seeking justice and defense attorneys fighting for their client’s innocence. They may think of judges as neutral arbiter who makes the ultimate decisions. Unfortunately, that is not the case.
Alternatively, casual observers may think that the jury is the most powerful actor in the criminal justice system. This is certainly an aspiration of those who believe in the system as a tool for a community to control its own behavior. If the system is meant to be run by the people, then getting a group of people together to determine guilt or innocence is certainly one way of giving regular people the power. And there is no doubt that juries play central roles in the trials where they are called. However, juries are almost never called, and judges are not determining the outcome of most cases. Instead, the system is designed so that all parties are motivated to settle a case with a plea deal instead of going to trial.
Because of this, prosecutors are the most powerful actors in the criminal justice system. Prosecutors make the charging decisions and often hold all the cards during the negotiations. Defense attorneys are left to choose between potentially harsh sentencing at trial and cutting a deal with the other party–forced to pick an inconvenienced judge or an unyielding prosecutor.
This article proposes a different method – a way in which negotiation is conducted, not between two lawyers in the hallways of a courthouse, but between a defendant and a board of experts. In tandem, prosecutors’ offices should be organized where they consider input from experts such as criminologists, social workers, and mental health professionals to make decisions that actually help people and prevent crime. This is not an argument for or against any specific sentencing philosophy, but a proposal that the experts on sentencing and recidivism need to be in the room where sentencing decisions are made.
Recommended Citation
Ellison Berryhill,
Committee Prosecution: Using Expert Opinion to Make Criminal Justice Descisions More Impactful,
57
U. Mich. J. L. Reform Caveat
(2025).
Available at:
https://repository.law.umich.edu/mjlr_caveat/vol57/iss1/2