In several U.S. jurisdictions, prosecutors charge defendants with nonexistent criminal offenses. Sometimes the crimes do not factually exist, meaning they did not occur—defendants did not commit them and so prosecutors lack evidence to prove them. Other crimes do not legally exist; the offense appears nowhere in a criminal code or common law. The practice contravenes core principles of criminal process, including the standard of proof, the legality principle, and legislative crime definition. Nonetheless, prosecutors succeed in convicting defendants of both sorts of nonexistent crimes, and appellate courts explicitly approve those convictions.

This article, based on the 2019 Barrock Lecture at Marquette Law School, offers a partial defense of this practice—specifically of factually baseless charges as opposed to legally nonexistent ones. I situate the practice in a broader argument about how legislation and legislative intent speaks to prosecutorial discretion: in general, through criminal statutes legislatures imply an upper bound on how prosecutors should leverage statutes to trigger criminal punishment but no comparable lower bound, or minimum enforcement standard. Use of factually baseless convictions honor these bounds, because they are a means to moderate the harshness or inadequacy of a criminal code or sentencing laws. Moreover, their use is transparent and limited by strong procedural constraints: defendants can be convicted of baseless charges only by pleading guilty to them, and only when judges find a factual basis for a different, greater offense. Thus the defense, the prosecution and the court all have a veto over baseless convictions. Collectively these actors resort to this practice only when, in effect, all agree that the criminal law or attendant sanctions are unjust. Factually baseless convictions are attempts to achieve a just outcome when existing law makes that impossible, at least in the eyes of those who best know the circumstances of individual cases. Legislatures should take this practice as a signal to revisit the criminal code and sentencing laws.

Darryl K. Brown, Factually Baseless Enforcement of Criminal Law is Okay. Full Enforcement is Not. , 104 Marquette Law Review, 511–541 (2020).
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