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criminal_justice

Accountability in action: Wake Forest Law’s newly launched Accountable Prosecutor Project aims to better understand the role of prosecutors and their accountability to communities

Since 1989, the National Registry of Exonerations has tracked more than 2,800 exonerations in the United States — 129 of them recorded just last year. Together, these cases have resulted in individuals collectively losing more than 25,000 years of their lives to wrongful imprisonment.

In a legal system designed, when functioning as it should, to bring justice to victims and hold those who commit crimes accountable for their actions, how do these kinds of mistakes occur, and what might be done to prevent them?

This is at the heart of the Accountable Prosecutor Project at Wake Forest Law. The newly established research and public information project is aimed at better understanding how prosecutors do their jobs, what factors influence prosecutorial conduct, and the systems that can help promote prosecutorial accountability.

“There’s a need in research, in policy, and in practice for more information about how prosecutors are and can be accountable for what they do,” said Project Director Eileen Prescott. “This project is oriented toward looking at multiple aspects of what it means for prosecutors to be accountable — not only for misconduct, but to themselves and their communities, too.”

Before joining Wake Forest Law to manage the new research effort, Prescott worked as a law clerk in Chicago’s Cook County State’s Attorney Office and as an Assistant District Attorney in Philadelphia, both among the largest prosecutor’s offices in the U.S. Now, she coordinates the efforts of the law school’s deep bench of faculty with expertise in criminal law who are contributing to the project’s efforts.

The group includes University Vice Provost and Wake Forest Law Professor Kami Chavis, who is also the founding director of the law school’s Criminal Justice Program and a former federal prosecutor; Professor Ron Wright, a leading criminal justice scholar who, before entering academia, was a trial attorney with the U.S. Department of Justice; Clinical Professor Mark Rabil, who launched and has directed the law school’s Innocence and Justice Clinic since 2009 and was formerly an assistant capital defender in North Carolina; Assistant Professor Alyse Bertenthal, who previously worked as an attorney for the ACLU Criminal Law Reform Project and whose interdisciplinary research looks at the relationship of law, culture, and the environment; and Assistant Professor Esther Hong, whose scholarship focuses on the intersection of criminal and juvenile law, and who formerly represented indigent youth and adults in juvenile delinquency and criminal appeals.

Together, their aim is to conduct new research that will provide greater insight into the prosecutorial role — research that the group hopes individual prosecutors, their offices, and others working in the criminal legal system will find useful.

“The need for greater research in this area is clear, and we want the project to result in helpful information that prosecutors can use to inform policies that deepen community trust,” said Prescott.

Understanding the role of prosecutors

The role of a prosecutor is essential to the legal system. Their jobs are complex, encompassing a wide range of duties and decision-making in pursuing the fair administration of justice.

Among other things, they have the authority to decide whether to bring charges in a case and what those should be, assess evidence and determine if any of it could clear a defendant, negotiate plea deals, help select members of a jury, and try cases.

“Prosecutors have an incredibly important role in our society, and we know that this role carries with it vast discretion,” said Professor Kami Chavis, who was involved in a wide range of criminal prosecutions as a former Assistant U.S. Attorney for the District of Columbia. “While there is often this focus on policing because it is the entry point into the criminal justice system, a prosecutor’s office and their policies can be really good barometers of what’s happening in the criminal justice system, too.”

Chavis says she sees the project as an opportunity to continue to build upon the work of Wake Forest Law’s Criminal Justice Program, which for the past seven years has sponsored symposia and speakers on issues related to criminal justice.

As part of the Criminal Justice Program, Chavis and Wright, along with Wake Forest Law Professor Gregory Parks, developed the Jury Sunshine Project, which examined felony jury trial selection across North Carolina. Chavis says she is interested in exploring as a part of the new project how prosecutors across a broader swath of states use peremptory challenges to strike potential jurors.

By studying behavior like peremptory strikes or charging decisions, the project could build on these previous efforts and provide further information that helps prosecutors be more accountable to their communities, as well as suggest approaches for prosecutors to maintain community trust.

The project is also an avenue to examine how prosecutors view their own roles within the criminal legal system, and how that can be impacted by the secondary trauma many experience throughout their careers, according to Professor Mark Rabil. Such trauma, if ignored, can lead to unintended burnout, stress, and poor decision-making, he says.

“Many young attorneys who come out of law school have this deep drive to be compassionate and to help people,” said Rabil. “We need to better understand and foster ways to support prosecutors in being able to maintain the compassion that was their basis for entering the job. If we can figure out ways to recognize that there is trauma, then I think we can help improve decision-making.”

Through his work with the project, he hopes to increase understanding of how systems and situations impact prosecutorial functions, and the factors that might influence misconduct.

“One of the goals is to create awareness in future lawyers that the system, although it largely works accurately, has a lot of room for improvement,” said Rabil.

Exploring community accountability

When it comes to defining accountability, Professor Ron Wright sees it as two-fold: an accountable prosecutor is one who both stays within the bounds of the law and is responsive to the priorities of their communities.

“We want to look at all the various ways that prosecutors do this, most of the time successfully,” said Wright, whose research under
the project will explore the ways in which prosecutor offices share data and information with their communities, as well as how they manage and communicate priorities within their own offices.

Though prosecutors are public officials, often their decisions are made out of public view, making proactive transparency essential. To that end, Wright is working with student research assistants to begin examining how some of the country’s largest prosecutor’s offices publicly disclose information and data about their activities.

“Our students expand the reach of this work,” said Wright. “It means we can offer more than just a case study. We can survey the
landscape and provide information about how common or uncommon a practice is.”

Teala Volkamer (JD ’23) has worked with Wright on the project, as well as on another survey of absolute immunity laws across various
jurisdictions.

“It helps bring that real-world component in,” said Volkamer, of the experience conducting research outside of the classroom. “Being
able to work on something relevant and tangible, and where you can see the impact it can have on people’s lives, is a good reminder of why I’m studying law and what I want to do as a lawyer.”

Informing the profession

During what he describes as a “change moment for criminal law,” Wright believes the project can offer grounded insight into the prosecutorial function.

“Success looks like building a body of original research that tells us things about prosecutors that we never knew before — and confirmation from people in the field that they find it relevant in some way,” he says.

It’s a sentiment echoed by Professor Alyse Bertenthal, whose research with the project will examine how state and local level actors prosecute environmental crimes. With support from student research assistants, she will collect interview and numerical data that will help inform discussions about the criminal enforcement of environmental laws, as well as the potential impacts of that enforcement on environmental justice.

“We don’t want to propose solutions without having a better understanding of what’s going on,” said Bertenthal. “We need to start by collecting data, so that if and when solutions are offered, they are based on something that has been deeply researched and analyzed.”

As Professor Esther Hong puts it: “We want to get it right.” At a time when discussions about prosecutorial power are prevalent, one of
the project’s priorities is to ensure that the empirical data and sources it is reviewing are robust.

“Ultimately, we want to understand the ways that various actors can have a role in creating a more just criminal legal system,” said Hong.

Continuing the efforts begun over the last year, student research assistants are hard at work this semester collaborating with faculty on the project, with the goal of publishing initial findings beginning in the spring.

This story originally appeared in the 2021 issue of the Wake Forest Jurist.

environment

Adopting the right to a healthy environment into law

Regulatory environmental statutes have had some real success, but they’re far from complete

Since the rise of the modern environmental movement in the 1960s, environmental law has been primarily based on regulatory statutes. The National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, among others, created an extensive regulatory regime in the 1970s that continues to this day.

That regime has had some real successes. Emissions of the most common air pollutants, including sulfur dioxide and fine particulates, have fallen by more than three-quarters since 1970. Average levels of lead in the bloodstream fell precipitously after lead-based gasoline was phased out. Hundreds of toxic waste sites have been cleaned up.

However, those successes are far from complete. Tens of millions of Americans still live in metropolitan areas that do not meet national air quality standards. Many rivers and lakes throughout the country still do not meet basic requirements for swimming and fishing. The United States and other countries are still failing to make effective progress to reduce carbon dioxide emissions that cause rising global temperatures.

Increasingly, attention is being paid to the ways that environmental harm is often discriminatory: that is, it often disproportionately affects members of racial and ethnic minorities and those living in poverty. This disparity, which is sometimes called environmental racism or environmental injustice, can take many forms. Chemical plants, oil refineries, hazardous waste facilities, and other locally undesirable land uses are more likely to be located in communities that are already marginalized for other reasons. Studies show that people of color are more likely to be exposed to air pollution. The poorest people in the world contribute least to the ongoing climate breakdown, but will be the most quickly and severely affected by it.

At the international level, advocates are increasingly making the case that governments’ failure to protect against environmental harm can violate their obligations under international human rights treaties. For example, if a government fails to effectively enforce its environmental laws, the result may be higher levels of pollution that foreseeably harm the lives and health of people within its jurisdiction. Because human rights law requires countries to take effective steps to protect people from these kinds of foreseeable harms, their failure to do so has been found to violate their obligations.

Human rights and environmental activists are also drawing more attention to the threats faced by environmental defenders. In many places around the world, those who stand up against illegal and unsustainable logging, poaching, and land-grabbing are harassed, threatened, unlawfully detained, and even killed. At least 200 environmental defenders are killed every year — an average of four every week. Often their killers are never brought to justice, which creates an atmosphere of impunity that places all such defenders at a heightened risk. Even in countries like the U.S., which rarely sees outright killings, there has been a crackdown on peaceful environmental protests. Protestors against the Dakota Access Pipeline, for example, were sprayed with fire hoses in the middle of winter. In the last five years, more than a dozen U.S. states have enacted laws that increase criminal penalties for trespassing on sites with oil refineries and pipelines.

Between 2012 and 2018, I saw these issues firsthand. As the first United Nations Independent Expert (and later Special Rapporteur) on human rights and the environment, I spoke to members of civil society, academics, government representatives, and many others about the challenges they faced in defending human rights and the environment, and issued reports calling on governments to do more to protect the environment and those who defend it. The courage and commitment of these environmental defenders is not only inspiring; it also benefits the entire world by demanding a cleaner, healthier world for us all.

In the coming years, rights-based approaches to environmental protection will only increase. Individuals will argue ever more strongly they have a right not to be discriminated against in relation to the environment, that they can exercise freedom of expression and peaceful assembly in opposing harmful environmental actions, and that governments have obligations to protect them from harassment and violence for trying to defend the environment.

Rights-based approaches are already having some success with respect to the largest environmental challenge of them all: climate change. In the last several years, courts in Germany, the Netherlands, and Pakistan, among others, have all issued decisions aimed at improving their governments’ response to climate change to protect their people’s human rights. In the U.S., the Biden administration has created an Environmental Justice Interagency Council, and directed the Environmental Protection Agency to strengthen enforcement of environmental violations that have a disproportionate impact on underserved communities.

The simplest way to recognize the relationship of human rights and the environment is to adopt the right to a healthy environment into law. More than 150 countries around the world have already done so. While the U.S. is not among them, some states have written it into their constitutions. This November, for example, New York citizens will vote on whether to add a right to clean water, clean air, and a healthful environment to the New York Constitution’s Bill of Rights. And perhaps as soon as this fall, the United Nations will recognize for the first time the human right to a healthy environment. While such recognition would not in itself be legally binding, it would be a powerful symbol of the fundamental importance of environmental protection to human well-being.

This story originally appeared in the 2021 issue of the Wake Forest Jurist.

Professor John Knox is an internationally recognized expert on human rights law and international environmental law. He joined the Wake Forest Law faculty in 2006 and teaches international, environmental, and human rights law. From 2012 to 2015, he served as the first United Nations Independent Expert, and from 2015 to 2018, as its first Special Rapporteur, on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment.

Sidney Shapiro, Professor of Law and Frank U. Fletcher Chair in Administrative Law

Professor Sidney Shapiro receives ABA Administrative Law Section Award for Scholarship in Administrative Law for his latest book, Administrative Competence

Wake Forest Law Professor Sidney Shapiro has been awarded the 2020 Annual Scholarship Award from the American Bar Association’s Section of Administrative Law and Regulatory Practice in recognition of his most recent book, Administrative Competence: Reimagining Administrative Law. He accepted the award, which recognizes the best work published in the field of administrative law in 2020, alongside co-author Elizabeth Fisher, professor of environmental law at Corpus Christi College, University of Oxford, in a virtual ceremony on Nov. 18 as part of the 2021 Administrative Law Conference.

In the book, published in 2020 by Cambridge University Press, Professors Shapiro and Fisher reimagine administrative law as the law of public administration by making its competence the focus of administrative law. The two discuss why understanding both the capacity and authority of expert public administration is essential to ensuring a legitimate and accountable administrative state.

“Thanks to Fisher and Shapiro’s thoughtful analysis and research in Administrative Competence, the administrative law community will undoubtedly begin wrestling anew with how to develop and deploy the intellectual and jurisprudential foundation needed to make good governance possible,” said Jack Beermann, member of the Annual Scholarship Award committee and professor at Boston University School of Law, when presenting the award.

In accepting the award, Professor Shapiro noted that historically, administrative law was regarded as the law of public administration — meaning that it simultaneously ensured agencies had the capacity to carry out their statutory mission and that when they did so, they had the legal authority to act — but was redefined in the 1960s to primarily focus on the latter, constraining public administration.

“Our book asks lawyers and law teachers to return to that larger conversation that existed before the 1960s and reimagine administrative law to once again be the law of public administration,” said Professor Shapiro. “Those statutes are a democratic commitment that law should not ignore.”

In addition to Professors Shapiro and Fisher, the committee also honored Stanford Law School Professor Anne Joseph O’Connell with the award for her article Actings, which examines open questions about temporary, “acting” leaders in federal agencies. Both the book and article were selected from a field of more than two dozen on the committee’s initial review list.

“At a time when legal scholarship has been widely and roundly criticized in some quarters for being too esoteric and removed from the work of courts, agencies, and lawyers, your works both demonstrate quite clearly how the very best legal scholarship can have immediate and important implications for contemporary law and policy,” said Ronald Krotoszynski, chair of the Annual Scholarship Award committee, in an email to the award winners.

Past recipients of the award include Stephen Breyer, William Eskridge Jr., Elena Kagan, Liz Magill, Nina Mendelson, Thomas Merrill, Peter Strauss, and Cass Sunstein, among others.

Wake Forest Law held a virtual celebration and discussion of the book on November 2, which included remarks from Professors Shapiro and Fisher, as well as Cary Conglianese, professor of law and political science at the University of Pennsylvania, and Wendy Wagner, professor at the University of Texas School of Law.

“It’s a pretty rare book that makes an ambitious argument like this, that basically says an entire field has been missing the forest from the trees, and not really paying attention to what the heart of the subject is about. It’s an even rarer book that actually succeeds in changing the way people should think,” said Professor Wagner. “I don’t think a reader can pick this book up, read it cover to cover and put it down, and think about administrative law the same way as a result.”

In his remarks, Professor Conglianese highlighted a passage of the book that spotlights successes of public administration, like predicting the weather, running federal insurance programs, and ensuring safety standards in aviation and the nation’s food supply.

“Throughout the years, American civil servants have proven to be competent, loyal, and faithful implementers of the country’s laws, regulations, and customs,” he quoted from the book.

While mistakes in public administration are inevitable and make perfection unattainable, Professor Shapiro told discussion attendees, there is room for improvement.

“A 10 or 15 percent increase in the performance of government through thoughtful ideas in public administration and administrative law would only make the country better if you believe in what the government does,” said Professor Shapiro.

Watch the full discussion below:


The mission of Wake Forest Law is to advance the cause of justice by creating knowledge and educating students to meet the legal needs of the world with confidence, character, and creativity. We instill in students a respect for the law, a devotion to the ideal of service, and a commitment to professional values. We educate students from around the world in a richly diverse, equitable, and inclusive community. Learn more at law.wfu.edu, and stay up to date on what’s happening in the Wake Forest Law community by following us on Twitter, Instagram, and Facebook.

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Wake Forest Law faculty move up eight spots on 2018 Scholarly Impact Score ranking

Members of the Wake Forest Law faculty have moved up eight spots on the “Scholarly Impact of Law School Faculties in 2018: Updating the Leiter Score Ranking for the Top Third“ by Gregory C. Sisk (St. Thomas) et al.

The updated 2018 study explores the scholarly impact of law faculties, ranking the top third of American Bar Association (ABA)-accredited law schools. Refined by Brian Leiter, the “Scholarly Impact Score” for a law faculty is calculated from the mean and the median of total law journal citations over the past five years to the work of tenured faculty members. In addition to a school-by-school ranking, it reports the mean, median, and weighted score, along with a listing of the tenured law faculty members at each school with the 10 highest individual citation counts.

According to the new ranking, Wake Forest faculty members whose scholarship had the most impact in 2018 are: Jonathan Cardi, Kami Chavis, Michael Curtis, Michael Green, Mark Hall, John Knox, Alan Palmiter, Gregory Parks, Sid Shapiro, Margaret Taylor, and Ron Wright. Continue reading »

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North Carolina Jury Sunshine Project findings now available for journalists covering 2018 elections

Wake Forest Law Professors Ron WrightKami Chavis and Gregory Parks have collected statistics about felony trial jury selection across North Carolina’s 100 counties as part of their research regarding jury selection. This overall research effort is known as the “Jury Sunshine Project.”

The researchers have produced a database — the first of its kind — of jury selection outcomes in felony trials in all 100 counties of North Carolina.

In a recent “Criminal Injustice” podcast interview, Wright explained his motive for starting this research: “I am interested in prosecutors and I am interested in who looks over their shoulders. It’s weird that prosecutors get to choose their own bosses.”

Wake Forest Law is making this database available for journalists to analyze the performance of elected officials (prosecutors and judges) in each district in the state. Contact Wright for access to each county’s data. Continue reading »