Reimagining criminal prosecution: toward a color-conscious professional ethic for prosecutors.

Author:Murray, Justin
Position:Introduction through I. The Criminal-Justice System on Trial: Color-Blind Versus Color-Conscious Perspectives on Race and Crime, p. 1541-1568


Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices--and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors--contribute to the staggering and disproportionate incarceration of black Americans.

In this Article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties. Color consciousness is complex and multi-dimensional. It involves understanding the ways in which America's long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime. It also demands awareness of the frequency of racial profiling and acknowledgment of the widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal. Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law. Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, and present their case to jurors.

Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.

Prosecutors are different. They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice. Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors' dual roles, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations. This Article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.


Disturbing levels of racial inequality persist across many different areas of American life, (1) but the most extreme inequalities today lie within the criminal-justice system. Shortly after the triumphs of the 1960s civil-rights movement, the rate of incarceration in America sped up dramatically. (2) Racial minorities (especially blacks, whom I focus on in this Article (3)) have borne the brunt of this escalating predilection for punishment. (4) If current trends continue, approximately one-third of black males born in 2001 can expect to do prison time at some point in their lives. (5) As of 1995, approximately one-third of black men within the age range of twenty to twenty-nine were under some form of criminal-justice supervision-prison, jail, probation, or parole (6)--and in some major cities (including Washington, D.C.), the fraction of young black men under such supervision reached or exceeded fifty percent. (7) These shocking statistics highlight the enduring relevance of race in America and the severe burdens that contemporary criminal justice inflicts on many black individuals and communities.

Yet, many Americans do not believe that the severely disproportionate incarceration of blacks is a reason for reform. This passivity is linked to a widely shared racial ideology that is often referred to as "color blindness." (8) The central premise of color blindness is that race and racism are no longer relevant in post-segregation America except for scattered individuals and groups on the fringe of society, such as the Ku Klux Klan. (9)

This assumption serves as the foundation for an entire political theory about how race operates in contemporary America. Color blindness teaches that the demise of governmentally sanctioned segregation in the 1950s and 1960s ushered in a new era of genuine equal opportunity for all races. (10) Equal opportunity does not guarantee equal outcomes and, indeed, color blindness acknowledges the undeniable fact that outcomes between whites and blacks remain gravely unequal. However, in a society of equal opportunity, unequal outcomes are not unjust; rather, they simply reflect the lack of effort or ability of those who wind up on the bottom. Thus, color blindness faults blacks--not whites or white-controlled institutions--for the persistent racial inequalities in American society, including disparities in the criminal-justice system. (11)

The problem with this picture is that race remains psychologically and politically relevant in ways that most Americans do not care to admit. It is true that conscious and overt prejudice has declined considerably since the end of Jim Crow. (12) However, the tendency of color blindness to narrowly define racism exclusively in terms of conscious prejudice disguises the pervasive influence of unconscious and institutional racism--two concepts that will be explained at length as this Article proceeds. (13)

Psychological research has consistently shown that most Americans, even those who sincerely profess their commitment to racial equality, continue to harbor moderate to severe cognitive associations between blacks and a number of negative characteristics, including the propensity for violence and crime. (14) Because perceptions relating to these characteristics are central to many decisional stages in the criminal-justice process, it should be no surprise that implicit bias against blacks influences legislators in choosing what (or whom) to criminalize, (15) police in deciding whom to stop and arrest, (16) prosecutors in electing whom to indict, (17) and jurors in deliberating about whom to convict. (18)

In order to improve this troubling state of affairs, many different actors must transform the way they think about and address issues of race and crime. Police, jurors, judges, community activists, probation officers, defense attorneys, the media, legislators, voters, and others all have important roles to play. A single article cannot possibly address all of the actors who might help in building a racially equitable criminal-justice system. Accordingly, I will focus on one actor who has extraordinary promise, yet who has been mostly overlooked as a potential ally: the criminal prosecutor. (19) My central thesis is that prosecutors can help build a more racially equitable system of crime and punishment by abandoning a color-blind, adversarial approach to the racial dimensions of their work and embracing a color-conscious, non-adversarial orientation in its stead.

For purposes of this Article, "color consciousness" refers to three overlapping ways of understanding and engaging race, each of which supplies practical insights into how a prosecutor can contribute to racial justice: historical consciousness, psychological consciousness, and political consciousness. I will briefly introduce each.

Historical consciousness is the practice of interpreting contemporary race relations within the context of their troubled past. (20) Color consciousness perceives links between the past and present that help to identify and confront present-day vestiges of America's oppressive racial legacy. (21) It is important for prosecutors to develop this form of awareness, because they are well-positioned to counteract persistent segregationist practices in the enforcement of the criminal law, such as the use of racial profiles by police to target black individuals, black neighborhoods, blacks who are "out of place" in a "white" neighborhood, and other policies that continue to reinforce the social and geographic boundaries engineered by Jim Crow. (22)

Psychological consciousness means developing insight into the phenomenon of unconscious racism. As mentioned previously, most Americans still view blacks, particularly black males, with suspicion, and the automatic cognitive processes that generate this perception have real potential to distort outcomes in the criminal-justice system. (23) Although these findings are disturbing, psychological research has also illuminated the path forward: because most Americans sincerely profess egalitarian and anti-racist values, they can mobilize these conscious beliefs to counteract their unconscious biases, if they are made aware of those biases. (24) It is precisely this awareness that color blindness fears and suppresses, and which color consciousness invites. (25) The insight that we will have less racism when race and racism are brought out into the open has significant implications for the exercise of prosecutorial discretion, (26) trial advocacy, (27) and institutional policy for prosecution offices. (28)

Political consciousness involves understanding that America's legal institutions, including the substantive criminal law, are not always race neutral. For most of the time period during which American criminal law has evolved, blacks were almost completely shut out of the political process--first by enslavement, and then by the combined force of private racial violence and state-sanctioned segregation. (29) Even today, despite incredible progress over the past half century, black...

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