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The American Prosecutor - Power, Discretion, and Misconduct American University Washington College of Law Digital Commons @ American University Washington College of Law Articles in Law Reviews & Other Academic Journals Scholarship & Research 2008 The American Prosecutor - Power, Discretion, and Misconduct Angela J. Davis American University Washington College of Law, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/facsch_lawrev Part of the Criminal Law Commons, Law Enforcement and Corrections Commons, and the Legal Profession Commons Recommended Citation Davis, Angela J., "The American Prosecutor - Power, Discretion, and Misconduct" (2008). Articles in Law Reviews & Other Academic Journals. 1396. https://digitalcommons.wcl.american.edu/facsch_lawrev/1396 This Article is brought to you for free and open access by the Scholarship & Research at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Articles in Law Reviews & Other Academic Journals by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. I t 'p fr:#t '.4 A' * .1 .4 , 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 College ofLaw 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- CRIMINAL JUSTICE U SPRING 2008 nal justice system. Their routine, everyday decisions con- two individuals involved in a fistfight. Such an observation trol the direction and outcome of criminal cases and have provides probable cause to arrest the individuals. Yet the greater impact and more serious consequences than those officer has the discretion to break up the fight, resolve the of any other criminal justice official. The most remarkable conflict between the individuals, and send them on their feature of these important, sometimes life-and-death de- way without making an arrest. Such an exercise of discre- cisions is that they are totally discretionary and virtually tion may well be in the interest of justice for all involved unreviewable. and would save the valuable resources of the court system Prosecutors make the most important of these discre- for other, more serious offenses. tionary decisions behind closed doors and answer only to Traffic stops are among the most common of discretion- other prosecutors. Even elected prosecutors, who presum- ary police decisions. There are hundreds of potential traffic ably answer to the electorate, escape accountability, in part violations, and every motorist commits at least a few each because their most important responsibilities- particularly time he or she drives. Failing to come to a complete stop at the charging and plea bargaining decisions-are shielded a stop sign, driving over the speed limit, and changing lanes from public view. without signaling are just a few of the most common traffic When prosecutors engage in misconduct, as in the cases violations for which police officers may issue tickets. They of Delma Banks and Dwayne Washington, they rarely face also are permitted to arrest drivers for some traffic viola- consequences for their actions. Delma Banks almost lost his tions, but are rarely required to do so. Few people would The most remarkable feature of these decisions is that they are totally discretionaryand virtuallyunreviewable. 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.
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