New York University School of Law, JD 2001
University of Wisconsin-Madison, BA 1995
Josh Bowers was struck with his moment of professional revelation when he was working for Bronx Defenders, a community-based public defender organization in New York City, and he found himself with a case nothing less than ridiculous. A man had been arrested for selling ices without a license in a park on the hottest day of the year. “The case landed on the front page of the New York Times, that’s how absurd it was,” Bowers recalls. The situation highlighted a legal phenomenon that was increasingly compelling to him: that in “low stakes” crimes, we depend on the legal system to use discretionary judgment in enforcing the law, in contrast to “high stakes crimes,” where society expects that the legal system will enforce the law to its limit. In other words, “We want prosecutors to pursue the maximum penalty for murder and rape. But when we’re dealing with selling ices in the park, we want people in the system to assess the situation and do what makes sense in context,” Bowers says.
Bowers: “With mandatory sentencing, you tie the hands of one of these agents—the judge—and it destabilizes this system.” It is this low stakes world involving discretionary judgment in justice where Bowers focuses his scholarship. He is currently working on possible ways to ensure that independent judgment works well and doesn’t run amok. More laws and policies are not necessarily the answer. For example, one might suggest mandatory sentencing (used mainly for felonies) as a possible safeguard. However, as Bowers points out: “Figuring out how best to deal with crime requires reasoned judgments of multiple agents—police, prosecutors and judges—all of whom provide crucial checks and balances on the discretionary decisions of the others. With mandatory sentencing, you tie the hands of one of these agents—the judge—and it destabilizes this system.”
Bowers: “I always knew I would get back to teaching at some point, but I needed to try some other things first.” Though he had to cultivate an academic specialty, Bowers didn’t have to think twice about teaching. A bred-in-the-bone natural, he has been teaching throughout his lifetime: Bowers tutored kids when he was in high school and college, did a stint with Teach for America, and taught prison inmates while he was at NYU. “I always knew I would get back to teaching at some point, but I needed to try some other things first,” Bowers says. After several years clerking, working at a law firm and then as a public defender, he was ready to return to the classroom. At that time, he had only published a student note, so the Academic Careers Program recommended that as an intermediary step Bowers apply for a fellowship, which would give him time to jumpstart his research and writing. Bowers won a spot in the highly prestigious Bigelow Fellowship program at the University of Chicago, and during his second year there went on the market and landed a job as an assistant professor at the Virginia School of Law.
His pursuit of optimizing discretionary judgment in low stakes criminal procedure is demanding and elusive, but finding answers is Bowers’ passion. As he says, “A world in which law enforcement could not exercise discretion is an ugly one, but it can become abusive, so unfettered discretion becomes ugly also.”