florida bill of particulars in criminal cases

CloseĪs for law, it has abandoned, on this account, its most basic function: channeling prosecutorial power through regulatory constraints. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. CloseĪs plea bargaining scholars have long recounted, prosecutors’ ability to threaten inflated sentences, combined with their power to trade those sentences away for pleas of guilt, allows them to control “who goes to prison and for how long.” 3 3 Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 Stan. ‘almost limitless discretion’ and ‘virtually absolute power.’” (first quoting Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash.

& Criminology 473, 480–81 (2016) (“The starting point for virtually every discussion of prosecutors in the United States is their . . . See David Alan Sklansky, The Nature and Function of Prosecutorial Power, 106 J. CloseĪnd it continues to be driven not by law but by power-the vast, unregulated power of prosecutors. 511, 516 (2016) (“American criminal justice backed into plea bargaining, and formal law has long been ambivalent about it.”). Kenneth Kipnis, Criminal Justice and the Negotiated Plea, 86 Ethics 93, 95 (1976) see also William Ortman, Probable Cause Revisited, 68 Stan. It “evolved in the unregulated interstices of our criminal justice system.” 1 1 Plea bargaining, we are told, is lawless. In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform. This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content. Rather, they exist in strikingly varied forms across our pluralist criminal justice system. These hidden regulatory levers are neither theoretical nor abstract. The assumption is misguided, however, insofar as it fails to account for a third body of law-the subconstitutional law of criminal procedure-that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed.

And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law-the two most studied bodies of law in the criminal justice system-neither of which significantly regulates prosecutorial power.

Few who know it well think it is working. The American criminal justice system is a system of pleas.

Florida bill of particulars in criminal cases