“How America Tolerates Racism In Jury Selection”: Discrimination In Jury Selection Is Indeed A National Problem
On Monday, the Supreme Court will hear oral arguments in Foster v. Chatman, a case that challenges the all-too-common practice by which prosecutors deliberately exclude African-Americans from criminal juries.
The Supreme Court tried to outlaw this practice in 1986 through its landmark ruling in Batson v. Kentucky. But prosecutors routinely ignore that decision, excluding black jurors because of marital status, manner of dress, last names and other allegedly “race neutral” reasons.
This is problematic because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries, according to several studies.
It’s time for the court to meaningfully enforce the ban on racial discrimination in jury selection.
In 2010, the Equal Justice Initiative, a nonprofit law firm, studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — and found the problem to be rampant.
For example, from 2005 to 2009, prosecutors in Houston County, Ala., struck 80 percent of qualified black jurors from death penalty cases. Consequently, in a county that’s 27 percent black, half of death penalty juries were all-white. The other half had one black citizen each.
Another study of death penalty trials in North Carolina shows that from 1990 to 2010, prosecutors excluded black jurors over twice as often as nonblack jurors.
An analysis of over 300 felony jury trials in Caddo Parish, La., from 2003 to 2012 found that of 8,318 qualified jurors, nearly half of black jurors were struck, compared with only 15 percent of nonblack jurors.
Clearly, Monday’s case will have national implications.
About 30 years ago, a black man, Timothy Foster, went on trial for his life in Georgia. He was accused of killing an elderly white woman. During the jury selection process, the prosecutors struck all four potential black jurors. Then, they argued before the all-white jury for a death sentence to “deter other people out there in the projects.” They probably would have made a different argument if the jury had included at least one of the black citizens called to serve.
The jurors complied and sentenced Mr. Foster to death.
In at least six different ways, the prosecutors singled out eligible black jurors: Notes from the jury selection list show they marked their names with a “B” and highlighted them in green on four separate copies; circled the word “black” on their juror questionnaires; noted several as “B #1,” “B #2”; ranked potential black jurors against one another “in case it comes down to having to pick one of the black jurors”; and wrote “Definite NOs” on the list of priority strikes, which had all four possible black jurors.
And how often are whites or blacks, women or men, gays or straights, muslims or Christians, etc. dismissed because the defense strikes them?…
Although the prosecution has never admitted that race played a role in selecting a jury for Mr. Foster’s trial, some of its “race-neutral” reasons for strikes were inaccurate and inconsistent.
For example, prosecutors struck a black juror for being a social worker — but she was a teacher’s aide. Meanwhile, prosecutors accepted every white teacher and teacher’s aide in the jury pool.
When the prosecutors asked a white juror and a black juror whether the defendant’s age, which was close to that of their children, would be a factor in the sentence, the black juror said “none whatsoever” but was struck based on his son’s age. The white juror answered “probably so” and was accepted.
Along with other former prosecutors, I joined a friend-of-the-court brief in support of Mr. Foster. We recognize, and refuse to condone, the blatant unconstitutionality of the prosecutorial misconduct in this case. Moreover, my own experience suggests that discrimination in jury selection is indeed a national problem, despite over a century of attempted legislative and judicial remedies.
In 1995, at a workshop hosted by North Carolina’s district attorneys, the attendees were given a handout titled “Batson Justifications: Articulating Juror Negatives.” It listed acceptable reasons for striking potential jurors, like body language, attitude and other factors, that the prosecution could present in the face of a Batson challenge. These vague explanations are virtually impossible for future courts to interpret as race-based, although they often are.
Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct. The prosecution’s notes show purposeful racial discrimination in jury strikes. A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow.
By: Larry D. Thompson, Op-Ed Columnist, The New York Times, October 30, 2015
“Deferred Prosecution Agreements”: Criminals Should Get Same Leniency As Corporations, Judge Says
For years, when corporations paid big fines to escape prosecution for their misdeeds, critics fumed. Why, they asked, shouldn’t big companies be treated like common criminals?
A federal judge turned that question on its head this week as he lamented being asked to approve yet another corporate settlement. Perhaps, he said, common criminals ought to be treated more like big companies.
Judge Emmet G. Sullivan, of the United States District Court for the District of Columbia, took aim at a favorite tool of the Obama administration for addressing corporate wrongdoing: a form of probation known as a deferred prosecution agreement. If companies behave for the length of the agreement, the matter is closed without any criminal record.
The judge said individual defendants should enjoy the same opportunities. While it is not uncommon for judges to criticize outcomes that they see as unjust, it is highly unusual for them to so explicitly advocate — and at such great length — a change in approach.
Judge Sullivan’s 84-page opinion — in what could have been a short, straightforward decision — is the latest influential voice to join a growing chorus of both liberals and conservatives who see the American criminal justice system as fundamentally unfair.
The ruling comes amid a rapidly changing environment: The White House is approving clemency applications at historically high rates; support is coalescing on Capitol Hill to ease sentencing laws; and law enforcement leaders around the country have declared that too many Americans are in prison for too long. Though the federal prison population has declined for the first time in decades, America remains the world’s largest jailer by far; its prison population nearly equals China’s and Russia’s combined.
Justice Department officials agree in principle with Judge Sullivan’s critique and have encouraged Congress to ease tough sentencing laws that were passed at the height of the crack epidemic. Emily Pierce, a department spokeswoman, noted that under an initiative begun in 2013, prosecutors were already ordered to prioritize more serious crimes, while looking for alternatives to prison for low-level offenders. Fewer low-level criminals being charged means fewer people eligible for deferred prosecution. The department has also strongly supported drug courts, which essentially offer the same second chance that companies are given.
At the same time, the Justice Department recently promised to get tough on corporate executives after years of criticism in the aftermath of the financial crisis that bankers, in particular, escaped punishment because their companies agreed to pay big fines. It was that promise, followed days later by a deferred-prosecution agreement with General Motors, that ignited Judge Sullivan’s fury.
Judge Sullivan was appointed to the federal bench by President Bill Clinton. He previously served as a municipal judge and a local appellate judge in Washington, having been appointed by Presidents Ronald Reagan and George Bush.
He called G.M.’s $900 million settlement “a shocking example of potentially culpable individuals not being criminally charged.” G.M. admitted that it misled the public about auto defects, but neither the company nor its executives were prosecuted, “despite the fact that the reprehensible conduct of its employees resulted in the deaths of many people.”
“The court is disappointed that deferred-prosecution agreements or other similar tools are not being used to provide the same opportunity to individual defendants to demonstrate their rehabilitation without triggering the devastating collateral consequences of a criminal conviction,” Judge Sullivan wrote.
Justice Department figures show deferred-prosecution agreements are rare for both individuals and companies. But the number of cases against organizations and companies is so tiny — 150 or so each year, compared with 160,000 or more individual prosecutions — that these deals occur at a much higher rate in corporate cases, which also tend to be higher profile.
Deferred-prosecution deals are attractive because they spare companies the consequence of criminal convictions, such as stock collapse and a loss of contracts. For people, the effects can be even more severe. The American Bar Association has identified tens of thousands of consequences of criminal conviction, which demonstrates how a single arrest can cost people their jobs and homes.
President Obama has indicated that he will make a criminal justice overhaul one of the most important issues of his remaining time in office. He became the first sitting president to visit a federal prison. On Thursday, he defended the Black Lives Matter movement, which has been criticized by police unions in particular as being anti-police. Mr. Obama plans to speak about changing the criminal justice system next week at the annual meeting of the International Association of Chiefs of Police in Chicago.
Much of the public debate has focused on reducing the prison population by cutting sentences for those serving long sentences for nonviolent crimes. Lost in the debate, Judge Sullivan said, has been the importance of keeping people out of jail in the first place. “This oversight is lamentable, to say the least!” he wrote.
He said criminal justice reform should offer people “the chance to demonstrate their true character and avoid the catastrophic consequences of felony convictions.”
While Judge Sullivan cannot make policy from the bench, the opinion shows the momentum behind efforts to improve the system, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.
“It has finally seeped into the public consciousness that there is something wrong,” he said. “All of a sudden, a nation wakes up and realizes we’ve created this unbelievable cadre of second-class citizens.”
By: Matt Apuzzo, The New York Times, October 23, 2015
“Ceding To The Language Of Reform”: The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half The Problem
Determination to “do something” about the issue of mass incarceration has, at last, moved from the academic and activist worlds into the halls of Congress: At the beginning of October, a bipartisan coalition of Senators, including Chuck Grassley, Dick Durbin, Cory Booker, John Cornyn, and Tim Scott, unveiled a criminal-justice-reform plan. Whether that “something” they’re doing is commensurate to the scale of the problem, though, depends on the terms of the debate.
So far, the growing cost of imprisonment and the injustice of long prison sentences for nonviolent offenders have been the centerpieces of conversations about reform. But if that is all the criminal-justice reformers focus on, the “something” that gets done about the United States’ prison problem will fail to address the root causes of the explosion in the incarcerated population that has occurred over the past 40 years.
The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms. The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.
In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others. The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.
Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people—those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences. “I spent 12 years behind bars because of mandatory minimum sentences in New York,” Tony Papa of Drug Policy Alliance said in a statement, “and I’ve been fighting to end them since my release in 1996. I’m proud to say DPA worked with members of Congress to reach this…historic deal. It’s a great step in the right direction.”
“But,” he added, “we must remember it is just a step.” These changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity). Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.” Why? Because a true agenda for change has been ceded to the language of reform. The debate started and has effectively ended without considering the injustice of the very existence of prisons. We never considered abolition.
In a reply to Ta-Nehisi Coates’s Atlantic cover story “The Black Family in the Age of Mass Incarceration,” political scientist Marie Gottschalk calls for a “third Reconstruction.” She argues that any plan to reduce the prison population cannot focus only on those already incarcerated, but must include a massive investment program to ameliorate the conditions that produce the violence that leads to arrest and imprisonment. “If the US is serious about reducing high levels of concentrated violence,” Gottschalk writes, “then addressing the country’s high levels of inequality and concentrated poverty should become a top priority, not a public-policy afterthought.”
Gottschalk is using language that will be familiar to longtime Nation readers. It was at the onset of Bill Clinton’s presidency that historian Eric Foner made the case in these pages for a “third Reconstruction” to repair the damage of done during the Reagan/Bush era. The Reconstruction, of course, is the period after the end of the Civil War, when federal investment and military protection made it possible for the formerly enslaved to relocate, vote, run for office, start their own businesses, and begin the building of thriving communities. The second Reconstruction is considered to be the fruit of the civil-rights movement, which ended legalized segregation, implemented federal protections to ensure the right to vote, and led to the passage of the Fair Housing Act. Gottschalk sees room to invest in the sort of programs that would drastically reduce the crimes used as a pretext for mass incarceration. To her, the “only legitimate long-term solution to the crime crisis is another Reconstruction.”
But the language of “reconstruction” can’t be employed without considering what preceded it—abolition. We abolished the institution of slavery. We abolished legalized segregation. If we want a third Reconstruction to take place, the abolition of prisons should be on the table.
Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves. And they are—not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people. Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more. Prison makes us lazy thinkers, hungry for revenge instead of justice. Prison is a violent representation of our failure to fight inequality at all levels. In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?
Abolition will not win right now. But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system. An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether. An abolitionist framework would call for us to decriminalize possession and sale of drugs. Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.
With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released. And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence. And we could then start making the kinds of investments in alleviating poverty that Gottschalk calls for.
But we can’t do that so long as prison exists as a fail-safe. Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation. So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.
By: Mychal Denzel Smith, The Nation, October 14, 2015
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“It’s Not Just Bad Cops; Prosecutors Run Wild”: The Ones Who Lie And Cheat To Win At Any Cost
One year ago, Michael Brown was shot dead by a police officer. Since then, the nation has debated the justice system more feverishly than any other period in recent memory. Most of the scrutiny has rightly fallen upon the police, which is where the justice system meets the people viscerally and sometimes fatally. Cops only have the power to arrest, though; the power to prosecute and put millions of Americans in prison—and more than a few to death—rests with prosecutors.
And too many are abusing that power.
Suppressing evidence, coddling informants, even outright lying are some of the instances of prosecutorial misconduct that sent away nearly half the 1,621 people convicted for crimes they didn’t commit since 1989, according to the University of Michigan Law School’s National Registry of Exonerations. These are only the cases we know about, and they are surely only a fraction of the wrongly convicted. Even so, the figure is stunning—especially when you consider that 115 of them were people condemned to die.
The punishment for bad prosecutorial misconduct is virtually nil. In a 2011 report on 707 such cases, only six prosecutors were disciplined. Almost all still have their licenses, and are still practicing law.
Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.
Over the next several weeks, The Daily Beast will dive into this blight on the judicial system. We’ll look at how money, race, and politics distort the judicial system, and incentivize even decent attorneys to misbehave. We’ll talk with some of the leading critics of the system, liberal and conservative. And we’ll hear some of the most appalling tales of prosecutors run amok—in many cases, involving attorneys still on the job, unsanctioned and undeterred.
The prosecutorial role is an unusual one in the American judicial system. Usually, attorneys have one client, and their responsibility is to advocate solely for that client’s interests. Prosecutors, however, have a dual responsibility. On the one hand, they are the government’s lawyers, charged with making the state’s best case against the accused. On the other hand, prosecutors are also part of the judicial system, and they are meant not simply to secure convictions, but to pursue justice.
At times, those two obligations conflict. When a prosecutor discovers potentially exculpatory evidence, he or she must disclose it—as confirmed by the Supreme Court in the 1963 Brady decision. No civil lawyer would do this; nor would any criminal defense lawyer. But prosecutors are uniquely cast in the dual roles of advocates and what some have called “ministers of justice.”
In theory, anyway. In practice, numerous factors cause many prosecutors to tilt toward convictions. Perhaps the best known recent example is the corruption trial of former Senator Ted Stevens, which resulted in his conviction, and in which the government was later found to have withheld exculpatory evidence. By that time it was too late for Stevens, who had already died.
America is the only country in the world in which many prosecutors are elected—and many of them run as being “tough on crime.” The disciplinary commission that sanctioned Durham County, North Carolina District Attorney Michael Nifong—prosecutor of the Duke lacross team on false rape charges—noted his upcoming primary election as a motivating factor for his misconduct. The pressure to produce wins has led to a “win-at-all-costs” mentality in some offices, especially when voters reward such behavior.
Perhaps most importantly, prosecutors are granted immunity for most kinds of misconduct. It’s easy to see the reasons for this policy: otherwise, every well-heeled convict would sue, clogging the system and making it impossible for prosecutors to do their jobs. At the same time, that immunity is so absolute that prosecutors simply get off scot-free, even when misconduct is established. Even worse, most states lack any meaningful oversight of prosecutors: no commissions, no review boards, nothing.
Then there’s race. Ninety-five percent of elected prosecutors are white, and two-thirds of the states that elect prosecutors have no black ones. Yet 40 percent of the incarcerated population is black and one in three black men will have spent time in prison. How is the justice system supposed to be seen as fair when this crucial element of it is almost exclusively run by white people?
Despite the racial divide, the response to prosecutorial misconduct and overzealousness has been striking in its bipartisan nature.
In some ways, the issue of prosecutorial misconduct is an ideal opportunity for Republicans and Democrats to work together. Republicans wary of overzealous state action become concerned “when district attorneys attack,” to quote the National Review. Conservatives also place a high value on public trust in the justice system, and are thus keen to root out bad prosecutors who may undermine it.
Judge Alex Kozinski, no bleeding heart liberal, recently called the problem an “epidemic,” excoriated a California prosecutor for trying to maintain a conviction (in probably the only appellate court recording to qualify as “viral” on YouTube), and proposed a host of major reforms.
Liberals, meanwhile, may see overzealous prosecutors not as anomalies within an otherwise just system, but as examples of an inherently unjustice system doing little to protect the vulnerable, especially people of color. Liberals tend to value fairness and compassion over the strong administration of justice, even when some guilty people may go free as a result. Thus they, too, are wary of prosecutorial misconduct, albeit for very different reasons from conservatives.
It’s odd, then, that so little has been done. For example, efforts to create an oversight commission in New York have failed two years in a row, and there is nothing on the congressional agenda.
That’s not for lack of proposed reforms, which The Daily Beast will explore in detail in the coming weeks. These include proposals to:
– Create oversight boards, like those that already exist for judges, to monitor, censure, and report misconduct;
– Allow the wrongly convicted to sue for monetary relief—including from the prosecutor’s office, if misconduct is established;
– Reduce prosecutorial immunity to a qualified, rather than absolute, form. In particular, open prosecutors to be tried for perjury if they have lied under oath;
– Eliminate the election of prosecutors, which distorts the incentives they face;
– Expand Brady requirements with model rules which states could adopt as they see fit. These could include an “open file rule,” in which all information about a case must be shared with defense counsel; and
– Investigate the racial disparity among prosecutors and treat it as a civil rights issue.
Perhaps the time for such reform is, at last, at hand. The seemingly unlimited use of police violence against people of color, and the failure of prosecutors to take action against it, has led to a crisis of confidence in the criminal justice system at large—one amplified by the racial disparities within that very system.
Is it possible that the left’s concern with racial justice, and the right’s concern with law and order, might converge in this area where reform is so desperately needed? Will there be progress at last?
By: Jay Michaelson, The Daily Beast, August 8, 2015
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