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EDITOR'S NOTE: This article is excerpted, with violent sex offense-a rare occurrence in these types of
permission of Oxford University Press, Inc., from cases.
ARBITRARY JUSTICE: The Power of the American The Supreme Court ultimately found that the prosecu-
Prosecutor, by Angela J. Davis. Copyright © 2007 by tors in Banks's case engaged in misconduct by failing to
Oxford University Press, Inc. The book is available in turn over exculpatory evidence, but the prosecutors were
bookstores, at www.oup.com/us, or by calling (800) neither punished nor reprimanded. A trial judge found the
445-9714. prosecutor's behavior in Dwayne Washington's case to be
vindictive and dismissed the charges against him. The pros-
elma Banks was convicted of capital murder in
ecutor's decision in Andrew Klepper's case was never chal-
Texas and sentenced to death. Just 10 minutes be- lenged; in fact, there was no legal basis for doing so.
fore he was scheduled to die, the United States Su- I was a public defender at the Public Defender Service
preme Court stopped his execution and a year later reversed for the District of Columbia (PDS) for 12 years. It was then
his sentence. The Court found that the prosecutors in his that I learned of the formidable power and vast discretion
case withheld crucial exculpatory evidence. of prosecutors. During my years at PDS, I noticed that pros-
Dwayne Washington was charged with assault with ecutors held almost all of the cards, and that they seemed to
intent to kill and armed burglary in the juvenile court of deal them as they saw fit. Although some saw themselves
Washington, D.C. Two adults were arrested with Dwayne as ministers of justice and measured their decisions care-
and prosecuted in adult court. The prosecutors in the adult fully, very few were humbled by the power they held. Most
cases threatened to charge Dwayne as an adult if he refused wanted to win every case, and winning meant getting a con-
to testify against the adults. When Dwayne said he could viction. In one of its more famous criminal cases, the U.S.
not testify against them because he didn't know anything Supreme Court, quoting a former solicitor general, stated
about the crime, the prosecutors charged him as an adult, that "the Government wins its point when justice is done in
and he faced charges that carried a maximum sentence of its courts." (Brady v. Maryland, 373 U.S. 83, 87 n.2 (1963.)
life in an adult prison. A paraphrased version of this quotation is inscribed on the
Andrew Klepper lived in Montgomery County, a suburb walls of the U.S. Department of Justice: "The United States
of Washington, D.C. He was arrested for attacking a woman wins its point whenever justice is done its citizens in the
with a baseball bat, sodomizing her at knifepoint with the courts." Yet most prosecutors with whom I had experience
same bat, and stealing more than $2,000 from her. The pros- seemed to focus almost exclusively on securing convic-
ecutors in his case agreed to a plea bargain in which An- tions, without consideration of whether a conviction would
drew would plead guilty to reduced charges. As part of the result in the fairest or most satisfactory result for the ac-
agreement, Andrew would be placed on probation and sent cused or even the victim.
to an out-of-state facility for severely troubled youth, where During my years as a public defender, I saw disparities in
he would be in a locked facility for six to eight weeks, fol- the way prosecutors handled individual cases. Cases involv-
lowed by intensive group therapy in an outdoor setting. ing educated, well-to-do victims were frequently prosecut-
Andrew's parents-a lawyer and a school guidance coun- ed more vigorously than cases involving poor, uneducated
selor-agreed to foot the bill. Andrew's two accomplices- victims. The very few white defendants represented by my
whose involvement in the crime was much less serious than office sometimes appeared to receive preferential treatment
Andrew's-each served time in jail. from prosecutors. Although I saw no evidence of intentional
All three of these cases illustrate the wide-ranging power discrimination based on race or class, the consideration of
and discretion of the American prosecutor. In each case, the class- and race-neutral factors in the prosecutorial process
prosecutor's actions profoundly affected the lives of the ac- often produced disparate results along class and race lines.
cused. Banks was almost executed by the State of Texas Sometimes neither race nor class defined the disparate
before the Supreme Court reversed his conviction. When treatment. At times it simply appeared that two similarly
Dwayne Washington told prosecutors he couldn't help situated people were treated differently. Why did the pros-
them, they followed through on their threat to charge him ecutor choose to give a plea bargain to one defendant and
as an adult and he faced charges that carried a life sentence not another charged with the same offense? If there were a
in adult prison. The favorable treatment afforded Andrew difference in prior criminal history or some other relevant
Klepper allowed him to avoid prison after committing a factor, the disparate treatment would be explainable. But
without a difference in the legitimate factors that prosecu-
ANGELAJ. DAVIS is aprofessorat American University CollegeofLaw tors are permitted to consider in making these decisions,
in Washington, D.C, where she teaches criminal law criminal proce- the disparities seemed unfair. Yet I saw such disparities all
dure, and related courses. She isaformer director ofthe Public Defender the time.
Service for the District of Cohlmbia. Prosecutors are the most powerful officials in the crimi-
life, and Dwayne Washington lost his liberty and suffered support a law that required police officers to stop and issue
the many other damaging effects of criminal prosecution, a ticket to every person who committed a traffic violation
but their prosecutors just moved on to the next case. As for or to arrest every person who committed an arrestable traf-
Andrew Klepper, perhaps he should have been afforded the fic violation. In addition to the unpopularity of such a law,
opportunity to receive treatment and rehabilitation, but fair- most would agree that the limited resources of most crimi-
ness demands that other similarly situated youth receive the nal justice systems should be preserved for more serious
same or similar opportunities. Current laws and policies do offenses.
not require equitable treatment. Although discretion in the exercise of the police func-
Prosecutors certainly are not the only criminal justice tion appears necessary and desirable, the discretionary na-
officials who make important, discretionary decisions. Dis- ture of police stops and arrests sometimes produces unjust,
cretion is a hallmark of the criminal justice system, and discriminatory results. When police officers exercise their
officials at almost every stage of the process exercise dis- discretion to stop or arrest blacks or Latinos but not whites
cretion in the performance of their duties and responsibili- who are engaging in the same behavior, they are engaging
ties. In fact, without such discretion, there would be many in racial profiling-a practice that has been widely criti-
more unjust decisions at every stage of the criminal pro- cized and even outlawed in some jurisdictions. Thus, the
cess. A system without discretion, in which police, judges, discretion granted to police officers to make reasonable de-
and prosecutors were not permitted to take into account the cisions in individual cases also sometimes produces unfair
individual facts, circumstances, and characteristics of each disparities along racial lines. Although the laws and policies
case, would undoubtedly produce unjust results. passed to eliminate racial profiling may not totally control
Police officers, for example, who are most often at the police discretion, they demonstrate society's recognition
front line of the criminal process, routinely exercise discre- that such discretion must be scrutinized to ensure fairness
tion when making decisions about whether to stop, search, in our criminal justice system.
or arrest a suspect. Although they are permitted to arrest Judges exercise discretion in the criminal justice system
an individual upon a showing of probable cause to believe as well. It is the role of the judge to make decisions in in-
he or she has committed a crime, they are not required to dividual cases about everything from whether a particular
do so, and frequently do not. A police officer may observe defendant should be detained before trial to what sentence
and when they fail to follow their own rules. Similarly, in- tice. But when they do so without meaningful guidance,
dividual state and local prosecutors may establish policies standards, or supervision, their decisions become more ar-
and standards of practice in their offices, but they are not bitrary than individualized, and deep-seated, unconscious
required to do so, and most don't. Although a few states (for views about race and class are more likely to affect the
example, Maryland and West Virginia) have passed laws decision-making process. It is not enough for prosecutors
that establish standards for prosecutors, there is virtually no to base their decisions on the malleable standard of "doing
public accountability when the standards are not followed. justice" because such a standard is subjective and ultimately
Proponents of the current system of prosecution argue produces unexplainable and unjustifiable disparities.
that prosecutors are held accountable to the people through The goal should be to establish practices that promote
the electoral system. They maintain that if prosecutors do the goals of individualized justice without producing unfair
not perform their duties and responsibilities fairly and ef- disparities among similarly situated defendants and vic-
fectively, they will be voted out of office. However, the tims of crime. So far, despite the worthy intentions of many
electoral system and other mechanisms of accountability hard-working prosecutors, frequently that goal is not being
have proven to be ineffective. met. Even well-meaning prosecutors routinely engage in
The lack of enforceable standards and effective account- practices that produce unfair results-practices that are hid-
ability to the public has resulted in decision making that of- den from the public, and even when revealed, are somehow
ten appears arbitrary, especially during the critical charging accepted as legitimate.
and plea bargaining stages of the process. These decisions The criminal justice system is important to all of us.
result in tremendous disparities among similarly situated Some of us and members of our families will have the un-
people, sometimes along race and/or class lines. The rich fortunate experience of being crime victims or criminal de-
and white, if they are charged at all, are less likely to go to fendants. Most will be fortunate enough to avoid personal
prison than the poor and black or brown-even when the involvement with the system. But everyone has an interest
evidence of criminal behavior is equally present or absent. in assuring the fair and just operation of a system with the
Although prosecutors certainly are not the only criminal power to deprive liberty and life. Everyone who believes in
Weinberg, supra.) In hundreds of additional cases, judges ing conversations with witnesses, selective and vindictive
believed that the prosecutorial behavior was inappropri- prosecutions, and grand jury abuse all occur in the privacy
ate but affirmed the convictions under the "harmless error" of prosecution offices-away from the public and the par-
doctrine. (See generally Chapman v. California, 386 U.S. ties whose cases are affected by the harmful behavior. As
18, 22 (1967) (adopting the harmless error rule and decid- a result of the Supreme Court's rulings, see, e.g., United
ing that some constitutional errors are not significant or States v.Armstrong, 517 U.S. 456 (1996), prosecutors know
harmful and therefore do not require an automatic reversal that it is highly unlikely that any of these behaviors will be
of conviction).) discovered by defense attorneys or anyone who might chal-
The cases investigated by the Center for Public Integrity lenge them.
only scratch the surface of the issue, as they only represent On the rare occasion when such misconduct is discov-
the cases in which prosecutorial misconduct was discovered ered, judicial review is extremely limited. Under the harm-
and litigated. Most of the prosecutorial practices that occur less error rule, appellate courts affirm convictions if the
behind closed doors, such as charging and plea bargaining evidence supports the defendant's guilt, even if he or she
decisions and grand jury practices, are never revealed to the did not receive a fair trial. (See Rose v. Clark, 478 U.S.
public. Even after cases are indicted, defense attorneys are 570, 580 (1986) (holding that the harmless error standard
not entitled to discover what occurred behind the scenes. dictates that courts should not set aside convictions if the
In the rare cases in which practices that appear to be illegal error was harmless beyond a reasonable doubt).) This rule
are discovered, it is often impractical to challenge them, in permits, perhaps even unintentionally encourages, prosecu-
light of the Supreme Court's pro-prosecution decisions on tors to engage in misconduct during trial with the assurance
prosecutorial misconduct. Of course, there is no opportu- that so long as the evidence of the defendant's guilt is clear,
nity to challenge any misconduct that may have occurred in the conviction will be affirmed.
the more than 95 percent of all criminal cases that result in a In addition to its constitutional power to reverse lower
guilty plea, since defendants give up most of their appellate court convictions, the Supreme Court's supervisory author-