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Cardozo Law Review

Abstract

Specialized criminal courts were created in an effort to offer nonpunitive responses to the commission of crime. The promise of these courts was that they would remove select populations from the traditional legal system and offer them something different, and perhaps better, than mere punishment and incapacitation.

However, the current selection processes for specialized courts—in which judges and prosecutors have almost completely unfettered discretion to decide both the criteria by which potential participants will be allowed to participate and whether any individual defendant meets such criteria—perverts the notion of providing specialized services to specific populations. Instead of selecting defendants based on neutral criteria, the discretionary bias inherent in the process invites judges and prosecutors to take extrajudicial considerations into account. These considerations result in the re-inscription of already existing privilege and, correspondingly, the reinforcement of biases that permeate much of the criminal legal system, such as those based on racial presentation.

Utilizing the framework of procedural fairness, this Article suggests that the presence of discretionary bias in the selection process for specialized courts threatens their continued legitimacy. Because specialized courts rely upon the freely-given cooperation of outside criminal legal stakeholders—such as social service providers and community organizations—in order to function, the courts must be perceived as a legitimate enterprise operating in an unbiased manner. Unless these courts begin to impose transparent, consistent, and procedurally just criteria for defendant selection, the entire project may cease to exist.

Keywords

Courts, Criminal Law and Procedure, Law Enforcement, Judges, Sentencing and Punishment, Penology

Disciplines

Courts | Criminal Law | Criminal Procedure | Judges | Law | Law Enforcement and Corrections

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