Book Review: Davis, A. J. (2007). Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press. ix, 248 pp

• Date: 01 December 2009
• Published date: 01 December 2009
• Author: David M. Jones
• DOI: 10.1177/0734016809331773
• Subject Matter: Articles

Book Reviews
497
Davis, A. J. (2007). Arbitrary Justice: The Power of the American Prosecutor.
New York: Oxford University Press. ix, 248 pp.
DOI: 10.1177/0734016809331773
As the title of the book suggests, Professor Angela Davis believes the American prosecutor has
too much power, a power that is often exercised in ways that have discriminatory impact. A former
public defender in Washington, D.C., and a current professor of law at American University College
of Law, where she teaches criminal law and criminal procedure, the author has a unique perspective
from which to make this charge. In her view, prosecutors are the most powerful actors in the criminal
justice system (p. 5). These are also people who exercise significant amounts of discretion in the per-
formance of their jobs. The author acknowledges this discretion is necessary, a necessary evil in her
view. It is exercised at various points in the process, such as in charging decisions—including the
decision of whether or not to ask for the death penalty—and in the pleabargaining process.
Her concern is that, for various reasons, prosecutors’ discretion is largely unfettered and used
unfairly in many cases. For instance, prosecutors often overcharge, because it is in their strategic
interest to do so at times. They hold most of the cards when it comes to plea bargaining, a fact that
they know and use to their advantage. Moreover, she suggests, prosecutors often use their discretion
in ways that have a discriminatory impact. She uses examples from her own practice to substantiate
this charge, and she uses these examples well. In most cases, these decisions are not taken because
the prosecutor is venal or lazy but because she is busy, because she wants to win, and because (the
author speculates) she is, for the most part, a White, middle-class professional encumbered by
numerous subconscious/unconscious biases.
The author also goes on to point out that there are prosecutors who do engage in unethical and
even...