The news yesterday that a second grand jury in two weeks had failed to indict a white police officer for causing the death of an unarmed black man has caused an understandable uproar. Where should we focus the outrage in a justice system that is failing minorities? Let me suggest one candidate: prosecutorial discretion.
As an assistant federal public defender, I am used to experiencing the fruits of a system designed around the whims of the prosecution. First, what is prosecutorial discretion? Plenty of literature gives content to this phrase, but it boils down to the idea that a prosecutor can do whatever a prosecutor wants to do, as evidenced by the fact that 97% of all cases in federal court result in guilty pleas prior to, and instead of, a jury trial. The majority of these settlements are the result of plea agreements where the prosecutor, not a judge, decides what charges a defendant should be convicted of, whether or not to require a plea to factors that trigger statutory mandatory minimum sentences, and often sentencing ranges with no input from the judicial branch, let alone a jury of a defendant’s peers. The arcane cruelty of federal criminal laws, particularly in the area of drugs and guns, means that penalties are so severe that most defendants have little choice but to plead guilty. Severe sentencing and over-criminalization combine to make a dangerous cocktail where almost everything is a crime, or multiple crimes.
So what does this have to do with Ferguson? And now the Staten Island chokehold case? Without question, the decision of these two grand juries not to indict was because the prosecutors, in their discretion, did not want to indict. As has been detailed elsewhere, when a prosecutor wants an indictment, a prosecutor usually gets an indictment. The fact that both of these grand jury presentments took place over months (instead of hours as is the norm), and involved testimony on behalf of the officers (each police officer testified on his own behalf, again, not the norm) shows just how unique these cases were. And just how little the prosecutors must have wanted to indict.
And why might these prosecutors not have wanted these grand juries to return indictments? The reason may be legitimate doubts over the culpability of the officers under the laws of excessive force as written. Or because prosecutors have to rely on law enforcement officers every day to investigate cases and make out those cases in court, and, thus, were loath to alienate their usual allies. But we may never know, and we have no right to know under the law.
Prosecutors make decisions not to indict all the time and the only person who might even know about it is the victim, or alleged victim, of some criminal action. No one has a right to prosecution. The recent conversations regarding unprosecuted collegiate sexual assault sparked in part by the controversial Rolling Stone article about my alma mater, the University of Virginia, implicate this fundamental fact. Every victim stands at the whim of the prosecutor to determine whether or not a case even starts down the path of seeking justice from a criminal court.
Bill Stuntz, former Harvard Law professor, described our current system and its disproportionate effects on black Americans well in The Collapse of American Criminal Justice (Harvard, 2011):
As unenforced speed limits delegate power to state troopers patrolling the highways, so too American criminal law delegates power to the prosecutors who enforce it. That discretionary power is exercised differently in poor city neighborhoods than in wealthier urban and suburban communities. Far from hindering such discrimination, current law makes discriminating easy. That sad conclusion has its roots in a sad portion of America’s legal history. When the Fourteenth Amendment’s guarantee of the “equal protection of the laws” was enacted, one of its chief goals was to ensure that criminal law meant one law alike for blacks and whites—that both ex-slaves and ex-slaveowners would be held to the same legal standards, and that crime victims among both groups received roughly the same measure of legal protection. That understanding of equal protection did not survive Reconstruction’s collapse. Today, the equal protection guarantee is all but meaningless when applied to criminal law enforcement, one reason why both drug enforcement and enforcement of laws banning violent felonies are so different in black communities than in white ones.
The Ferguson and Staten Island cases may be targets of our outrage for many reasons, but one should certainly be that prosecutorial discretion has been exposed for what it is—entirely out of our hands.
Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.
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