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Volume 105

Article

Against Prosecutors

I. Bennett Capers, Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School.

15 Sep 2020

It has now become common, at least among progressive criminal justice scholars, to argue that the criminal justice system could be fixed—or at least greatly improved—if we simply regulated prosecutors more. If we curbed their unfettered discretion.1ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 15–17, 192–94 (2007). If they sought less harsh punishments. Or if they charged fewer people, which arguably has contributed more to mass incarceration than the War on Drugs.2 JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION—AND HOW TO ACHIEVE REAL REFORM 206 (2017) (concluding that “[p]rosecutors have been and remain the engines driving mass incarceration”); see also EMILY BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS INCARCERATION 77–81 (2019) (arguing that prosecutors bear much of the responsibility for over-incarceration). If we required them to have open file discovery—the ’220 norm in civil cases—instead of keeping evidence, even exculpatory evidence, close to the vest.3Cf. Miriam H. Baer, Timing Brady, 115 COLUM. L. REV. 1, 43, 57–58 (2015) (exploring timing and institutional design as a way to increase prosecutorial compliance with discovery obligations). See generally Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 IND. L.J. 481, 514 (2009) (arguing for open-file discovery); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CALIF. L. REV. 1585, 1637 (2005) (similar). If they confronted their implicit biases about race and class and everything else.4Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1139–42 (2012) (discussing implicit biases among prosecutors); Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 SEATTLE U. L. REV. 795, 797 (2012) (arguing that “implicit racial attitudes and stereotypes skew prosecutorial decisions in a range of racially biased ways”). If we limited their power to coerce pleas5See, e.g., Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 CALIF. L. REV. 1117, 1151–60 (2011) (proposing protections for defendants who enter into plea bargains similar to protections for consumer contracts); I. Bennett Capers, The Prosecutor’s Turn, 57 WM & MARY L. REV. 1277, 1299–1305 (2016) [hereinafter Capers, The Prosecutor’s Turn] (discussing plea bargaining in the context of the Due Process Clause); Eric S. Fish, Against Adversary Prosecution, 103 IOWA L. REV. 1419, 1444–45 (2018) (“American criminal justice is essentially a system of negotiated dispositions administered by prosecutors.”). or fixed things so the prosecutors who investigate and advocate are not the same prosecutors who in effect adjudicate decisions.6See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 898 (2009) (arguing that borrowing from the institutional design inherent in administrative law checks could do much to rein in prosecutorial excess). The suggestions continue. If we elected progressive prosecutors.7BAZELON, supra note 2, at 147–95; Angela J. Davis, The Progressive Prosecutor: An Imperative for Criminal Justice Reform, 87 FORDHAM L. REV. 1, 1 (2018) (urging the election of more progressive prosecutors); cf. David Alan Sklansky, The Progressive Prosecutor’s Handbook, 50 U.C. DAVIS L. REV. ONLINE 25, 27 (2017) (providing ten suggestions of “best practices” for progressive district attorneys). If we at least leveled the funding between prosecutors and public defenders.8WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 299 (2011); David Rudovsky, Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality, 32 LAW & INEQ. 371, 377–82 (2014) (discussing the depth of the funding crisis); Eve Brensike Primus, Defense Counsel and Public Defense, in 3 REFORMING CRIMINAL JUSTICE: PRETRIAL AND TRIAL PROCESSES 121, 123–26 (Erik Luna ed. 2017); Note, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 HARV. L. REV. 1731, 1733–35 (2005). I too made some of these arguments.9See, e.g., I. Bennett Capers, Cross Dressing and the Criminal, 20 YALE J. OF L. & HUMAN. 1, 22–30 (2008) (overviewing exercises of perspective “switching” for actors in the criminal justice system); Bennett Capers, Real Rape Too, 99 CALIF. L. REV. 1259, 1299–1300 (2011) [hereinafter Capers, Real Rape Too] (arguing for gender-neutrality and better training for prosecutors of sexual assault); Capers, The Prosecutor’s Turn, supra note 5, at 1299–1305 (discussing heightened due process requirements for prosecutors who plea bargain). Not anymore.

The argument I put forward in this Article may seem radical, but if I may channel Ralph Ellison, “[b]ear with me.”10RALPH ELLISON, INVISIBLE MAN 12 (1952). Because I subscribe to the belief that “subject position is everything in my analysis of the law,”11PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 3 (1991) (“Since subject position is everything in my analysis of the law, you deserve to know that it’s a bad morning.”). it is worth disclosing that I come to this argument not just as a criminal justice scholar but also as a former federal prosecutor. That argument is this: it is time to turn away from prosecution as we know it. As a federal prosecutor I put hundreds of defendants, mostly brown and black and almost always poor, in prison as part of the War on Drugs. But if the goal was to limit the influx of drugs in this country, what I did was an abject failure.12See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 60 (rev. ed. 2012) (arguing that the war on drugs is the “single most important cause of the explosion in incarceration rates in the United States”). See generally STEVEN WISOTSKY, BEYOND THE WAR ON DRUGS: OVERCOMING A FAILED PUBLIC POLICY 8 (1990) (“One way or another, no matter what the War on Drugs does to supply, the black market in cocaine will play its trump: it thrives on enforcement, depends on it.”); PAULA MALLEA, THE WAR ON DRUGS: A FAILED EXPERIMENT 11 (2014) (“It is by now indisputable that the War on Drugs has failed in all of its objectives.”). And it is not just drug prosecutions. Even looking back on many of the other cases I prosecuted involving victimless “crimes” I certainly know I did more harm than good. I certainly contributed to mass incarceration and to the separation of families. But to what end?

Just consider. Each year our jails cycle through approximately ten million people, the vast majority charged with nonviolent crimes.13ZHEN ZENG, U.S. DEP’TOF JUSTICE, NCJ 251210, JAIL INMATES IN 2016, at 1 (2018), https://www.bjs.gov/content/pub/pdf/ji16.pdf [https://perma.cc/ TDW6-B2K4] (noting that “[j]ails reported 10.6 million admissions during 2016”). We are at a point where one in every three adults in America has a criminal record,14CHIDI UMEZ & REBECCA PIRIUS, BARRIERS TO WORK: IMPROVING EMPLOYMENT IN LICENSED OCCUPATIONS FOR INDIVIDUALS WITH CRIMINAL RECORDS 1 (2018), https:// www.ncsl.org/Portals/1/Documents/Labor/Licensing/criminalRecords_v06_ web.pdf [https://perma.cc/JT77-R98T]; THE SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS 1 (2014), https://www.sentencingproject.org/wp-content/up loads/2015/11/Americans-with-Criminal-Records-Poverty-and-OpportunityProfile.pdf [https://perma.cc/Y3Z3-RLRP]. and where for every fifteen persons born in 2001, one will likely spend time in jail or prison.15THOMAS P. BONCZAR, U.S. DEP’T OF JUSTICE, NCJ 197976, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001 7 (2003), https://www.bjs.gov/ content/pub/pdf/piusp01.pdf [https://perma.cc/7BTT-SXDS]. Compared to other countries, the crime rate in the United States is not exceptional,16See, e.g., U.N. OFFICE ON DRUGS AND CRIME, GLOBAL STUDY ON HOMICIDE 12, 126 (2013) (showing that the U.S. homicide rate is below the global average). and yet we have by far the highest incarceration rate in the world.17CHIDI UMEZ & REBECCA PIRIUS, BARRIERS TO WORK: IMPROVING EMPLOYMENT IN LICENSED OCCUPATIONS FOR INDIVIDUALS WITH CRIMINAL RECORDS 1 (2018), https:// www.ncsl.org/Portals/1/Documents/Labor/Licensing/criminalRecords_v06_ web.pdf [https://perma.cc/JT77-R98T]; THE SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS 1 (2014), https://www.sentencingproject.org/wp-content/up loads/2015/11/Americans-with-Criminal-Records-Poverty-and-OpportunityProfile.pdf [https://perma.cc/Y3Z3-RLRP]. None of this can be solved by simply tinkering with the machinery of prosecution. It is time to rethink why and how we prosecute in the first place.

What would it mean to turn away from public prosecutors and not rely on the criminal justice system as the first responder to address social ills, such as mental illness and poverty (two of the main drivers of our prison industrial complex)? More radically, what would it mean to turn away from state controlled prosecution as the primary way to address crime? What would it mean to replace a system where prosecutors hold a monopoly in deciding which cases are worthy of pursuit with a system in which “we the people,” including those of us who have traditionally had little power, would be empowered to seek and achieve justice ourselves?

This Article attempts to answer these questions. It begins in Part I with the enormous, monopolistic power public prosecutors wield. But this power is not inevitable. Indeed, public prosecutors are not even inevitable. This is the main point of Part II, which surfaces the rarely discussed history of criminal prosecutions in this country before the advent of the public prosecutor, when private prosecutions were the norm and in a very real sense criminal prosecutions belonged to “the people.” Part II then demonstrates that our history of private prosecutions and the turn to public prosecutions is more than just a curious footnote, as this very history has, in turn, shaped criminal law and justice as we know it. Part III, in many ways the core of this Article, makes the argument for turning away from public prosecutors and restoring prosecution to the people. It also returns to the question that motivates this Article: what benefits might accrue if victims had the option to pursue criminal charges through private prosecution or public prosecution? Part III argues there would be several benefits, including democratizing criminal justice and, quite possibly, reducing mass incarceration.

To read the entire Article, click here: Against Prosecutors.

References

↑ 1. ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 15–17, 192–94 (2007).
↑ 2.  JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION—AND HOW TO ACHIEVE REAL REFORM 206 (2017) (concluding that “[p]rosecutors have been and remain the engines driving mass incarceration”); see also EMILY BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS INCARCERATION 77–81 (2019) (arguing that prosecutors bear much of the responsibility for over-incarceration).
↑ 3. Cf. Miriam H. Baer, Timing Brady, 115 COLUM. L. REV. 1, 43, 57–58 (2015) (exploring timing and institutional design as a way to increase prosecutorial compliance with discovery obligations). See generally Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 IND. L.J. 481, 514 (2009) (arguing for open-file discovery); Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CALIF. L. REV. 1585, 1637 (2005) (similar).
↑ 4. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1139–42 (2012) (discussing implicit biases among prosecutors); Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 SEATTLE U. L. REV. 795, 797 (2012) (arguing that “implicit racial attitudes and stereotypes skew prosecutorial decisions in a range of racially biased ways”).
↑ 5. See, e.g., Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 CALIF. L. REV. 1117, 1151–60 (2011) (proposing protections for defendants who enter into plea bargains similar to protections for consumer contracts); I. Bennett Capers, The Prosecutor’s Turn, 57 WM & MARY L. REV. 1277, 1299–1305 (2016) [hereinafter Capers, The Prosecutor’s Turn] (discussing plea bargaining in the context of the Due Process Clause); Eric S. Fish, Against Adversary Prosecution, 103 IOWA L. REV. 1419, 1444–45 (2018) (“American criminal justice is essentially a system of negotiated dispositions administered by prosecutors.”).
↑ 6. See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 898 (2009) (arguing that borrowing from the institutional design inherent in administrative law checks could do much to rein in prosecutorial excess).
↑ 7. BAZELON, supra note 2, at 147–95; Angela J. Davis, The Progressive Prosecutor: An Imperative for Criminal Justice Reform, 87 FORDHAM L. REV. 1, 1 (2018) (urging the election of more progressive prosecutors); cf. David Alan Sklansky, The Progressive Prosecutor’s Handbook, 50 U.C. DAVIS L. REV. ONLINE 25, 27 (2017) (providing ten suggestions of “best practices” for progressive district attorneys).
↑ 8. WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 299 (2011); David Rudovsky, Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality, 32 LAW & INEQ. 371, 377–82 (2014) (discussing the depth of the funding crisis); Eve Brensike Primus, Defense Counsel and Public Defense, in 3 REFORMING CRIMINAL JUSTICE: PRETRIAL AND TRIAL PROCESSES 121, 123–26 (Erik Luna ed. 2017); Note, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 HARV. L. REV. 1731, 1733–35 (2005).
↑ 9. See, e.g., I. Bennett Capers, Cross Dressing and the Criminal, 20 YALE J. OF L. & HUMAN. 1, 22–30 (2008) (overviewing exercises of perspective “switching” for actors in the criminal justice system); Bennett Capers, Real Rape Too, 99 CALIF. L. REV. 1259, 1299–1300 (2011) [hereinafter Capers, Real Rape Too] (arguing for gender-neutrality and better training for prosecutors of sexual assault); Capers, The Prosecutor’s Turn, supra note 5, at 1299–1305 (discussing heightened due process requirements for prosecutors who plea bargain).
↑ 10. RALPH ELLISON, INVISIBLE MAN 12 (1952).
↑ 11. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 3 (1991) (“Since subject position is everything in my analysis of the law, you deserve to know that it’s a bad morning.”).
↑ 12. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 60 (rev. ed. 2012) (arguing that the war on drugs is the “single most important cause of the explosion in incarceration rates in the United States”). See generally STEVEN WISOTSKY, BEYOND THE WAR ON DRUGS: OVERCOMING A FAILED PUBLIC POLICY 8 (1990) (“One way or another, no matter what the War on Drugs does to supply, the black market in cocaine will play its trump: it thrives on enforcement, depends on it.”); PAULA MALLEA, THE WAR ON DRUGS: A FAILED EXPERIMENT 11 (2014) (“It is by now indisputable that the War on Drugs has failed in all of its objectives.”).
↑ 13. ZHEN ZENG, U.S. DEP’TOF JUSTICE, NCJ 251210, JAIL INMATES IN 2016, at 1 (2018), https://www.bjs.gov/content/pub/pdf/ji16.pdf [https://perma.cc/ TDW6-B2K4] (noting that “[j]ails reported 10.6 million admissions during 2016”).
↑ 14. CHIDI UMEZ & REBECCA PIRIUS, BARRIERS TO WORK: IMPROVING EMPLOYMENT IN LICENSED OCCUPATIONS FOR INDIVIDUALS WITH CRIMINAL RECORDS 1 (2018), https:// www.ncsl.org/Portals/1/Documents/Labor/Licensing/criminalRecords_v06_ web.pdf [https://perma.cc/JT77-R98T]; THE SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS 1 (2014), https://www.sentencingproject.org/wp-content/up loads/2015/11/Americans-with-Criminal-Records-Poverty-and-OpportunityProfile.pdf [https://perma.cc/Y3Z3-RLRP].
↑ 15. THOMAS P. BONCZAR, U.S. DEP’T OF JUSTICE, NCJ 197976, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001 7 (2003), https://www.bjs.gov/ content/pub/pdf/piusp01.pdf [https://perma.cc/7BTT-SXDS].
↑ 16. See, e.g., U.N. OFFICE ON DRUGS AND CRIME, GLOBAL STUDY ON HOMICIDE 12, 126 (2013) (showing that the U.S. homicide rate is below the global average).
↑ 17. CHIDI UMEZ & REBECCA PIRIUS, BARRIERS TO WORK: IMPROVING EMPLOYMENT IN LICENSED OCCUPATIONS FOR INDIVIDUALS WITH CRIMINAL RECORDS 1 (2018), https:// www.ncsl.org/Portals/1/Documents/Labor/Licensing/criminalRecords_v06_ web.pdf [https://perma.cc/JT77-R98T]; THE SENTENCING PROJECT, AMERICANS WITH CRIMINAL RECORDS 1 (2014), https://www.sentencingproject.org/wp-content/up loads/2015/11/Americans-with-Criminal-Records-Poverty-and-OpportunityProfile.pdf [https://perma.cc/Y3Z3-RLRP].

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