Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors

Abstract

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans.

In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties. Color consciousness is complex and multi-dimensional. It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime. It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal. Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law. Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more.

Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.

Prosecutors are different. They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice. Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations. This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.