Arbitrary Justice: The Power of the American Prosecutor.

• Author: Dillard, J. Amy
• Position: Book review

ANGELA J. DAVIS, ARBITRARY JUSTICE (Oxford University Press, Inc. 2007) 264 PP.

From the misguided Duke rape prosecution to the White House firings of U.S. Attorneys, our society is focusing anew on the role of the prosecutor. The unchecked power of Michael Nifong in Durham, North Carolina led to a year-long discussion of race, wealth, sex, and ultimately the power of the prosecutor. Nifong's abuses have led to his personal downfall, loss of bar membership, and a criminal investigation into whether his acts warrant his own prosecution. (2) Similarly, with the U.S. Attorney firings, the need for a free prosecutor who does not suffer the politicization of duty has become a paramount concern. (3) The White House influence over whether and when U.S. Attorneys should prosecute capital crimes and seek the death penalty has created an unlikely marriage between defense attorneys and prosecutors in the fight for prosecutorial independence.

With her book Arbitrary Justice, Professor Angela J. Davis has tackled the sticky topic of prosecutorial discretion and abuse. (4) Anyone who has been a criminal trial lawyer, either for the defense or for the prosecution, will find Davis's book familiar and thorough. Davis is, first and foremost, a public defender, and like many of us, she values the work she did as a public defender as "the most important work I have ever done or will ever do." (5) In her recitation of cases of prosecutorial misconduct and abuse, Davis is a trustworthy narrator because of her deep, personal experience.

From years of personal experience and research, Davis is able to provide a complete rendering of the criminal justice system with an examination of the role and power of the prosecutor at each stage. Without a hint of sarcasm, Davis presumes that most prosecutors are well-intentioned, honest, and genuinely trying to do a good job. (6) This presumption makes her book useful rather than scandalous. She believes in the system she served for many years, and she writes as one who seeks more accountability for prosecutors and reform in governance to achieve it. The moral imperative that Davis enjoys in her commentary comes from experience, distance, and the presumption that the road to prison, for many, is paved with the good intentions of misguided prosecutors.

Davis's major complaint with the sins of prosecutors comes less as an indictment of the prosecutors themselves and more as a criticism of the unchecked power and discretion of the prosecutor. (7) Underlying this lack of accountability is the misconduct of the prosecutor, which often stems from lack of preparation, lack of maturity, or lack of a full understanding of the prosecutor's complex role. The most basic principle is that the role of prosecutor is not adversarial. But because the nature of litigation is always adversarial, this guiding principle of the prosecutor as a minister of justice, even to the defendant, is often lost.

My law school mentor, a criminal law professor, former prosecutor, and one-time director of a capital defense clinic in Virginia, proclaimed to his many students that the only place they could really make a difference was in a prosecutor's office. Yet, more quietly, he told some of us that we did not have the stomach to prosecute. It was easy to take that observation as a compliment, to be marked as a golden child, so tender and noble that locking people up for a living was out of reach. As the prosecutors took pride in doing the only work where they could make a real difference, I, like Davis, spent many years doing the gritty work, hanging out in jails, and routinely answering the question, "How can you represent those people?" with references to Jesus. (8)

It was not until years later, when preparing to give a short talk at my mentor's memorial service in 2006, that I realized I had misunderstood his secret message. It was not that I was too good to prosecute; I wasn't good enough. If I ever got a taste of it, I would love prosecuting people. I would wrap myself in a cloak of righteousness and rely on my personal "philosophy and proclivities ... instead of on legal principles, standards, and guidelines." (9) The zealousness with which one should defend in criminal cases does not extend to the prosecution. Zealots lack discretion, which is one reason they make great defense attorneys. Prosecutors, when doing their job the right way, should carry the weight of the world on their shoulders, tabling personal conviction in favor of thoughtful, objective standards.

In this Review, I will recount Davis's tremendous contribution to the current conversation in the United States about the role of prosecutors. I will delve more specifically into the power of the prosecutor in capital cases, and I will contend that, in those cases, prosecutors have a moral obligation to exercise their discretion with abundance. Finally, I will conclude with an examination of Davis's calls for reform and accountability.

Davis's short historical review of the creation and role of the prosecutor starts with the political genesis of the office in 1643. (10) The first public prosecutor served at the pleasure of both the court and the governor of Virginia, and Davis explains in her first chapter not only how prosecutors ultimately came to have discretion but also why the court rarely checks that discretion. (11) The sophistication of the criminal justice system, marked by the proliferation of criminal statutes from the legislature, increased the need for prosecutors to exercise discretion in choosing which crimes to prosecute. With statutory violations, prosecutors must act as a first line of review in determining what the intent of the legislature was when it passed the statute criminalizing certain conduct. Using gambling as an example, Davis argues that legislatures that have criminalized gambling have done so to stop large-scale operations and the attendant racketeering activities. She points out that every time a prosecutor does not prosecute the players in a private poker game, he has exercised some discretion in interpreting the legislative intent. (12)

The American Bar Association ("ABA") standards advise prosecutors about how they should perform their duties and how best to exercise their discretion. (13) The ABA promulgates the Model Code of Professional Responsibility that governs the conduct of all attorneys; the vast majority of states have adopted some version of the Model Rules. (14) There is only one provision within the ABA's framework, Rule 3.8, that is specifically directed towards prosecutors. (15) The goal of Rule 3.8 is to promote the fair administration of justice and the appropriate exercise of prosecutorial discretion. (16) Davis's primary complaint with the system stems from the fact that the standards are aspirational: the prosecutor exercises discretion even when he chooses whether to follow the standards. (17) Moreover, the judicial and legislative branches have no meaningful review over this tremendous power. Even in states with laws governing the standards for prosecutors, there is no method of accountability when the prosecutor disregards the standards. (18)

In her chapters on charging crimes, making deals, and handling victims, Davis reviews the daily duties of the prosecutor and assesses the challenges and attendant responsibilities. She makes the point that prosecutors feel compelled to "do the right thing" even if they cannot prove their case with the available evidence. (19) But prosecutors, likewise, get overly focused on the available evidence, which at times lines up for the successful prosecution of someone who needs not be prosecuted. Davis uses Marcus Dixon as the best example of the latter. (20) Dixon, an eighteen-year-old black football star and honor student in Georgia, had sex with a fifteen-year-old white girl. The prosecutor charged Dixon with every possible sex offense, all stemming from a single sexual encounter. The jury ultimately acquitted Dixon on all counts except the one involving consensual sex offenses with a minor. Even though the legislator who had written the statutory sex crimes legislation declared that he never intended it to be used against someone like Dixon, the competitive prosecutor wanted the conviction, perhaps to justify all his hard...