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Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America Tamara F University of Maryland Law Journal of Race, Religion, Gender and Class Volume 8 | Issue 1 Article 7 “Whites Only Tree,” Hanging Nooses, No Crime?: Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America Tamara F. Lawson Follow this and additional works at: http://digitalcommons.law.umaryland.edu/rrgc Part of the Civil Rights and Discrimination Commons, and the Criminal Law Commons Recommended Citation Tamara F. Lawson, “Whites Only Tree,” Hanging Nooses, No Crime?: Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America, 8 U. Md. L.J. Race Relig. Gender & Class 123 (2008). Available at: http://digitalcommons.law.umaryland.edu/rrgc/vol8/iss1/7 This Article is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in University of Maryland Law Journal of Race, Religion, Gender and Class by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. "WHITES ONLY TREE," HANGING NOOSES, NO CRIME?: LIMITING THE PROSECUTORIAL VETO FOR HATE CRIMES IN LOUISIANA AND ACROSS AMERICA ASSOCIATE PROFESSOR TAMARA F. LAWSON I. INTRODUCTION Democracy will not come / Today, this year / Nor ever / Through compromise and fear. I have as much right / As the other fellow has / To stand / On my two feet / And own the land. I tire so of hearing people say. / Let things take their course. / Tomorrow is another day. / I do not need my freedom when I'm dead./ I cannot live on tomorrow's bread. Freedom / Is a strong seed / Planted / In a great need. I live here, too. / I want freedom / Just as you. I Associate Professor, St. Thomas University School of Law; LL.M., Georgetown University Law Center, 2003; J.D., University of San Francisco School of Law, 1995; B.A., Claremont McKenna College, 1992. Former Deputy District Attorney, Clark County District Attorney's Office, Criminal Division, Las Vegas, Nevada 1996-2002. I want to thank the individuals who encouraged me during the writing process, especially Professors David Luban, Stephanie Farrior, Cynthia Lee, Roger A. Fairfax, Jr., Christopher Blakesley, Ellen Podgor, Amy Ronner, Daniel Gordon, and Robin Lenhardt. The opportunity to present portions of my research at Pennsylvania State University, The Dickinson School of Law, and George Washington University School of Law stimulated ideas for this article. Additionally, I am grateful to the participants of the Mid-Atlantic People of Color Conference 2008 who commented on earlier versions of the article, especially Professors Angela J. Davis and L. Song Richardson. This paper was also enriched by conversations with Attorney Damon Hewitt from the NAACP Legal Defense Fund. A number of the Professors at The Catholic University of America, Columbus School of Law supported me as a visiting professor and provided a critical sounding board for my early ideas in this article, especially Professors Clifford S. Fishman, Regina Jefferson, William J. Wagner, Mary Leary, D. Benjamin Barros, Suzette M. Malveaux, Nerissa Skillman, Margaret Martin Barry, Hon. Sylvia Bacon, and Dean Veryl Victoria Miles. Thank you also to my faculty colleagues at St. Thomas University School of Law as well as the administrative staff, especially our faculty support librarian Katie Brown, and my research assistants Nicole Gardner, Sakina McIntosh, Ari Pregen, Jesmany Jomarron, and Patrick Delaney. Moreover, I extend immeasurable gratitude to my family and friends without whom the completion of this work would not be possible. I dedicate this article to my late grandfather, Seymour Hollier, an African-American native of Louisiana born in 1890, whose fearless fight for racial equality continues to inspire me. 1. LANGSTON HUGHES, Democracy, in THE COLLECTED WORKS OF LANGSTON HUGHES 415-16 (2001). 124 U. MD. L.J. RACE, RELIGION, GENDER & CLASS [VOL. 8:123 Langston Hughes' poem Democracy expresses an urgency for freedom that remains relevant today in America. 2 A government's respect for the rule of law and a citizen's belief in the legitimacy of the system that enforces that law is a prerequisite for freedom to genuinely exist within the democracy. 3 Thus, the notion of true freedom is dependent uPon a government's ability to ensure equal justice for all its citizens. The administration of criminal justice presents a stark 5 example of the government's power to curtail one's freedom. 2. "[I]n a democracy the ultimate source of all authority is the people." Melvin Urofsky, Introduction: The Root Principles of Democracy, U.S. DEPART. OF STATE (Nov. 2001), http://usinfo.state.gov (publications). In 2007, citizens from across the country marched in protest of the unequal treatment by law enforcement of the black students and white students of Jena High School. Peter Whoriskey, Thousands Protest Blacks' Treatment-Six Students Who Were Prosecuted in Louisiana Town Garner Nationwide Support, WASH. POST, Sep. 21, 2007, at Al. "Thousands of people from around the nation converged early Thursday on this rural town to protest what they consider the overzealous prosecution of six black high school students charged with beating a white schoolmate." Id. Citizens expressed their disagreement with the Executive's treatment of the six black youths charged with attempted murder and conspiracy to commit murder for what would normally be considered a "schoolyard fight," in addition to an attempt to "draw attention to what they believe is unequal treatment black people receive from the criminal justice system everywhere." Id. The nationwide protests embody President Lincoln's "best known definition of democracy in American History... government of the people, by the people, and for the people .... " Urofsky, supra (internal quotation marks omitted). They demonstrate that the democratic spirit of the people trying to influence the government is still relevant today in America. 3. The Carter Center Democracy Program's definition of democracy the concept states that a healthy democracy should function in a manner that promotes the rule of law and allows "people [to have] a meaningful voice in how they are governed." The Carter Center Democracy Program, http://cartercenter.org/peace/democracy (last visited Jul. 21, 2008); see also THOMAS CHRISTIANO, PHILOSOPHY AND DEMOCRACY: AN ANTHOLOGY 39 (Thomas Christiano ed. 2003) ("After all, democracy implies commitments to equality, such as equality in voting power as well as equality of opportunity to participate in discussion."); see discussion infra Part IV (suggesting that the victims of targeted hate crimes and other members of the community should be given the opportunity to officially participate in enforcement decisions). 4. "Our justice system has failed if citizens can not expect equal protection of the law and equal application of the law." State v. Bailey, 969 So. 2d 610, 611 (La. 2007) (granting defendant's motion to recuse Jena's local prosecutor Reed Walters due to Walters's abusing his prosecutorial discretion by taking race into account when exercising his charging authority). 5. "The discretionary power exercised by the prosecuting attorney in initiation, accusation, and discontinuance of prosecution gives him more control over an individual's liberty and reputation than any other public official." Note, Prosecutor'sDiscretion, 103 U. PA. L. REV. 1057, 1057 (1955) (citing Sam E. Hobbs, Prosecutor's Bias, An Occupational Disease, 2 ALA. L. REV. 40, 41 (1949)); Robert Jackson, The Federal Prosecutor,31 J. CRIM. L. & CRIMINOLOGY 3, 3 (1940). Also consider: The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done 2008] "WHITES ONLY TREE" Competency and fairness within the American criminal justice system play an integral part in a citizen's concept of freedom. 6 Citizens' confidence in the system is critical to the health and strength of democracy. 7 This article argues that a citizen's concept of justice and freedom-the essence of the democratic spirit-is inextricably linked to the amount of equity8 that is manifested within the prosecutor's to the tune of public statements and veiled or unveiled intimidations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. Hans P. Sinha, ProsecutorialEthics the Charging Decision, THE PROSECUTOR 32, 32 (2007) (quoting Robert H. Jackson, The FederalProsecutor, 24 J. AM JUD. Soc. 18 (1940)). 6. Valuing justice and freedom are foundational principals of American democracy and culture. See U.S. CONST. amend. IV, V, VI, VIII, and XIV; In Re Winship, 397 U.S. 358, 362-64 (1970) (holding that the most protective rights for a criminally accused are contained on the Bill of Rights and the highest proof requirements reserved for criminal matters); see also President Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863) ("[T]his nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.").
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