The Progressive Prosecutor: An Imperative for Criminal Justice Reform

In a law review article written seventeen years ago, Professor Abbe Smith asked the question, “Can You Be a Good Person and a Good Prosecutor?” Professor Smith ultimately answered the question in the negative. Whether or not one agreed with her conclusion at the time, today we know that the answer to the question is “Yes.” Anyone who believes that good people cannot be good prosecutors assumes and accepts a model of prosecution based on harsh, punitive policies and practices that incarcerate as many people as possible for as long as possible. Unfortunately, that unjust model of prosecution is the norm in far too many prosecutors’ offices. It is a model, however, that we cannot afford to accept. Fortunately, it is not the only model. There are good people currently serving as prosecutors who are implementing a new model of prosecution—one that seeks to reduce the use of incarceration, eliminate racial disparities, and provide second chances. If we ever hope to fix our broken criminal justice system, we must work to replicate that model throughout the country

Racial Fairness in the Criminal Justice System: The Role of the Prosecutor

In this article, Davis analyzes discusses efforts to involve prosecutors in the elimination of racial disparities in the criminal justice system. Part II explains how prosecutors unintentionally contribute to disparities through the arbitrary, unsystematic exercise of discretion. Part III argues that the U.S. Supreme Court has failed to provide an effective legal remedy for victims of race-based selective prosecution. Finally, in Part IV, Davis endorses the use of racial impact studies and task forces and discusses a model reform effort spearheaded by the Vera Institute of Justice

Introduction

An Introduction by Angela J. Davis Distinguished Professor of Law, American University Washington Collge of Law The scourge of mass incarceration has plagued the United States for decades. With roughly 2.3 million people in federal and state prisons and close to 7 million people under some form of criminal justice control\u27 in prison or jail or on probation and parole-this country maintains the unenviable status of having the highest incarceration rate in the world. Demands for reform have come in fits and starts, resulting in modest changes that have done little to reduce the number of people incarcerated or under some other form of control by the criminal legal system

The Legal Profession\u27s Failure to Discipline Unethical Prosecutors

This article explores the legal profession\u27s failure to hold prosecutors accountable for misconduct and other ethical violations. Part I introduces the piece, providing several examples of prosecutorial power and abuse in the criminal justice system. Part II discusses prosecutorial misconduct and the inadequacy of current legal remedies. Part III argues that the Model Rules of Professional Responsibility have not provided adequate guidance to prosecutors, and that the disciplinary process has not been effective in disciplining prosecutors when they have abused their power and discretion. Part IV contends that the disbarment of Mike Nifong – the prosecutor in the Duke lacrosse case – was an aberration and that race and class issues influenced the outcome. Part V suggests that the Rules should be amended to include other forms of prosecutorial abuse, using the Genarlow Wilson and Jena Six cases as examples. Part VI proposes measures for reform, including strengthening the disciplinary process and completing the work of the ABA Ethics 2000 Commission

Keynote Prosecutors and Race: Responsibility and Accountability

Thank you so much, Madeline. I want to thank the Rutgers University Law Review and the Rutgers Center on Criminal Justice, Youth Rights, and Race for inviting me to participate in this very important symposium on Prosecutors, Power, and Racial Justice: Building an Anti-Racist Prosecutorial System. I want to give a special thanks to Professor Cohen and Gisselly, and all of the students who worked so hard to put the symposium together. It\u27s such an important topic. I appreciate your interest, and [I] am particularly thankful to all of you [who] are here on this Friday afternoon to talk about these issues with us. The topic of my talk is Prosecutors and Race: Responsibility and Accountability. By the end of the talk, I hope you\u27ll know why I chose this title. I believe that prosecutors should be held responsible and accountable for the current situation in the criminal legal system-and that is a crisis. I truly believe that we are at a point of crisis in our criminal legal system. We have 2.2 million people in prisons and jails, with 7 million or so people on probation or parole and with extraordinary unwarranted racial disparities at every step of the process. Black and Brown people are more likely than white people to be arrested. Once arrested, they\u27re more likely to be convicted. Once convicted, they\u27re more likely to face stiff[er] and long[er] sentences. African American men are six times more likely to be incarcerated than white men and 2.5 times more likely than Latino men. If current trends continue, one in every three Black men today can expect to go to prison in his lifetime, as can one in six Latino men compared to one in seventeen white men. The racial and ethnic disparities among women, although less substantial, are also very prevalent. So, we\u27re in a state of crisis-not only with regard to mass incarceration, but also with unwarranted racial disparities

Benign Neglect* of Racism in the Criminal Justice System

A Review of Michael Tonry, Malign Neglect: Race, Crime, and Punishment in Americ

Race, Cops, and Traffic Stops

This article discusses the Supreme Court\u27s failure to provide a clear and effective remedy for discriminatory pretextual traffic stops. The first part explores the discretionary nature of pretextual stops and their discriminatory effect on African-Americans and Latinos. Then, the article examines Whren v. United States, a Supreme Court case in which the petitioners claimed that these “pretextual stops” violate the Fourth Amendment to the Constitution and are racially discriminatory. The Supreme Court rejected the claim, upholding the constitutionality of pretextual stops based on probable cause and noting that claims of racial discrimination must be challenged under the Equal Protection Clause. The article then addresses the ineffectiveness of the Court\u27s proposed remedy for both criminal defendants and motorists who are not arrested. Finally, it stresses the need for creative legal and policy-based solutions. It argues that when people of color experience injustices that are tolerated and even sanctioned by courts and other criminal justice officials, they develop distrust and disrespect for the justice system. That lack of faith translates into hopelessness, frustration, and even violence. The article concludes with a call to develop nondiscriminatory law enforcement policies and effective legal remedies that are accessible to all aggrieved citizens in order to help restore the integrity of the legal process and the trust of all citizens

The Legal Profession\u27s Failure to Discipline Unethical Prosecutors

This article explores the legal profession\u27s failure to hold prosecutors accountable for misconduct and other ethical violations. Part I introduces the piece, providing several examples of prosecutorial power and abuse in the criminal justice system. Part II discusses prosecutorial misconduct and the inadequacy of current legal remedies. Part III argues that the Model Rules of Professional Responsibility have not provided adequate guidance to prosecutors, and that the disciplinary process has not been effective in disciplining prosecutors when they have abused their power and discretion. Part IV contends that the disbarment of Mike Nifong – the prosecutor in the Duke lacrosse case – was an aberration and that race and class issues influenced the outcome. Part V suggests that the Rules should be amended to include other forms of prosecutorial abuse, using the Genarlow Wilson and Jena Six cases as examples. Part VI proposes measures for reform, including strengthening the disciplinary process and completing the work of the ABA Ethics 2000 Commission