All content tagged with: Prosecutorial Discretion

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  • Material Support Prosecutions and their Inherent Selectivity

    The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory scheme for foreign policy purposes. This Article explores the dynamics of the designation process and material support prosecutions, highlighting the selectivity inherent at every turn, which tells who and from what major monotheistic faith the terrorist threat emanates.

  • Online Case Resolution Systems: Enhancing Access, Fairness, Accuracy, and Efficiency

    Online case resolution (OCR) systems have the potential to dramatically increase access to our justice system. Part I introduces the concept of an OCR system, how it might work in practice, and its likely impact on courts and citizens. Part II argues that OCR systems can lower many of the barriers to going to court by reducing the need for face-to-face resolution of disputes; cutting the amount of time needed for hearings; mitigating litigant confusion and fear; allowing asynchronous scheduling that can accommodate work and child-care schedules; and offering a more reliable and easier-to-use means for litigants to voice their views. These advantages should especially benefit those of lower socioeconomic status, who often suffer disproportionality under the status quo. Part III contends that OCR systems need not compromise a judge’s or a prosecutor’s decision-making process but can actually enhance both. OCR systems can provide more, better, and easier-to-use information, and by removing a litigant’s appearance (race, gender, weight, etc.) from a judge’s consideration, can render outcomes less subject to implicit biases.

  • Performing Discretion or Performing Discrimination: Race, Ritual, and Peremptory Challenges in Capital Jury Selection

    Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate the reasons prosecutors offer as race neutral motivations for peremptorily striking Black jurors.

  • Choosing Those Who Will Die: The Effect of Race, Gender, and Law in Prosecutorial Decision to Seek the Death Penalty in Durham County, North Carolina

    District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in Durham County, North Carolina from 2003 to 2007. The analysis indicates that although law has an important effect in determining criminal punishment, extrinsic elements such as race and gender overwhelm the law in influencing prosecutorial decisions to go for death. Durham county prosecutors are 43% more likely to seek the death penalty when a Black defendant kills a White victim compared to a situation where a Black defendant kills a Black victim. The analysis also demonstrates the existence of a gender gap in prosecutorial decision-making. Female murder victims are significantly more likely to precipitate a capital prosecution compared to male victims. These results have important policy implications. Despite publicized attempts by the Supreme Court to eradicate the twin evils of arbitrariness and discrimination from our system of capital punishment, these problems persist. Therefore, it is important for policy makers to devise explicit mechanisms to channel the discretionary judgments of local prosecutors toward greater reliance upon legal precepts rather than extra-legal considerations such as race and sex. As Justice William Brennan warned in his dissent in McKleskey v. Kemp, "The way in which we choose those who will die reveals the depth of moral commitment among the living."

  • Appellate Review of Racist Summations: Redeeming the Promise of Searching Analysis

    This Article addresses the question of the appropriate response of appellate counsel for Black defendants tarred at trial by the indirect deployment of powerful racial stereotypes. The crux of the problem is that even now, the courts only take exception to blatant racist appeals, even though indirectly racist summations can have a determinative impact at trial. In laying out the contours of the problem, we must draw upon the discipline of rhetoric, or persuasion through oration, to describe various techniques of intentional indirectness that prosecutors use to obviate the possibility of appellate review under the stringent standards of the Fourteenth Amendment.

  • Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church

    Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the question of whether such trials, so long after the events in question, serve any useful purpose.

  • Setting the Record Straight: A Proposal for Handling Prosecutorial Appeals to Racial, Ethnic or Gender Prejudice During Trial

    This article proposes that direct or indirect references to the protected classes of race and/or gender should always be subject to the Chapman v. California "harmless beyond a reasonable doubt" standard. Once the defendant has shown appeals to racial or gender bias in prosecutorial argument or other conduct during his trial, the burden must shift to the prosecution to show at an immediate hearing outside the presence of the jury, beyond a reasonable doubt, that this impermissible appeal to bias did not affect the fairness of the defendant's trial. Furthermore, courts must take the examination of the prosecution's proof seriously, and must recognize that even a single racially biased comment by a prosecutor may improperly influence the outcome of a trial.