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

• Author: Murray, Justin
• Position: II. Color-Conscious Prosecution through Conclusion, with footnotes, p. 1568-1597

2. COLOR-CONSCIOUS PROSECUTION

   The last Part outlined a tragic cycle of race-related disadvantage, crime, unconscious racism, and imprisonment that will continue and potentially worsen unless crucial actors--black communities, prosecutors, police, jurors, legislators, voters, and others--in the criminal-justice system challenge the pattern. The point is not to promote despair, but to lay the groundwork for progress and healing. This Part explores a variety of ways that one important set of actors--criminal prosecutors--can become a positive force for change by confronting bias in themselves and others, and also by coming to grips with the crippling social consequences of mass imprisonment. In doing so, I also aim to explain why color-conscious prosecuting is justified as a matter of professional ethics.

   It might initially seem that the second conclusion follows inexorably from the first, but it does not. Even if prosecutors are capable of contributing to racial fairness in the criminal-justice system by their actions, there is still a case to be made that color consciousness--particularly color consciousness that redounds to the benefit of criminal defendants--violates the professional obligations of prosecutors as articulated in the American Bar Association's Model Rules of Professional Responsibility (and corresponding state rules). This counterargument rests on the premise that the American legal system is an adversarial one in which the lawyers of each side ought to zealously present the strongest version of their client's case, and leave it to the judge and jury to determine which side is correct. (175) The goal of this Part is not to wage general war on the adversarial system, but instead to advance a context-specific argument that prosecutors should adopt a non-adversarial, justice-seeking approach when addressing the racial dimensions of their cases.

   In many areas of their work, prosecutors already make important contributions to racial justice, and it is important to acknowledge these efforts in order to present a balanced narrative. Prosecutors are responsible for enforcing hate-crime laws. They routinely interact with black witnesses, vindicate the dignity of black crime victims, and protect many predominantly black communities from the scourge of crime. (176) After many dark years of governmental indifference to criminal acts with a black victim, (177) these are no small accomplishments.

   Those developments have been extensively documented and analyzed by other scholars and embraced by many prosecutors, perhaps because they are the dimensions of color consciousness that are consistent with an adversarial conception of the prosecutor's role. (178) Consequently, I will focus primarily on the less discussed yet equally important non-adversarial aspects of color-conscious prosecution--the ways in which prosecutors can help promote racial justice for black defendants, and not just for black victims.

   One more caveat is appropriate at this juncture. I recognize that individual prosecutors do not call all of their own shots regarding how to properly exercise discretion. They must consider not only their own personal conception of justice, but also the culture and policies of the office in which they work. A few of my recommendations will be difficult, or even impossible, for some prosecutors to implement within their institutional environments; others may find their institutions more accepting, and even encouraging, of interventions in the service of racial fairness. In order to do justice to the complex institutional constraints that individual prosecutors are faced with, I will temporarily set those issues aside in this Part and provide them with comprehensive treatment in the next Part.

   1. The Adversarial System and the Prosecutor's Dual Role

      Within America's adversarial legal system, the "standard conception of the lawyer's role" consists primarily of two principles: neutrality and partisanship. (179) The principle of neutrality requires the lawyer to divorce his or her ethical and political beliefs from his or her legal service, and instead to adopt the goals and perspective of the client. (180) The principle of partisanship states that the lawyer must energetically pursue the interests of his or her client, even to the detriment of others. (181) According to these standards of professional ethics, the principal duty of most American lawyers is to seek an outcome favorable to his or her client, not to seek outcomes that are also fair to the opposing party or to third parties who are uninvolved in the adversarial showdown. (182)

      Despite the centrality of the principles of neutrality and partisanship in the American conception of the lawyer's role, the Model Rules of Professional Conduct recognize countervailing principles in certain contexts as well. For instance, lawyers may not obstruct an opposing party's access to evidence, (183) deceive the Court, (184) or bypass counsel by communicating directly with represented opposing parties. (185) Lawyers are expected to be civil (186) and to conduct themselves as "officer[s] of the legal system." (187) Although American lawyers frequently push the envelope on, and even transgress, these and other nonadversarial requirements in the course of zealously representing their clients, it is worth noting that the Model Rules of Professional Conduct do not dictate a purely adversarial role for lawyers. (188) Instead, they supply a multivalent set of principles that can often come into tension with one another, demanding that lawyers creatively navigate through the resulting conflicts. (189)

      The non-adversarial dimension of a prosecutor's professional ethics is broader and more well-defined than that of other lawyers. Prosecutors have a "dual role" to serve both as advocates for the government within an adversarial system, and also as "officers of justice." (190) Their obligation is to "'seek justice, not merely to convict."' (191) Nonetheless, due to the ambiguous meaning of the prosecutor's duty to seek "justice" and the internal dissonance within the prosecutor's "dual role," there are many conflicting views about how a prosecutor should reconcile these competing obligations. (192) The weight that a prosecutor should give to each part of his or her professional duty in any particular setting is not pre-ordained, and the prosecutor must frequently make judgments about the strength of the justifications for (and objections to) adversarialism in various situations. (193) These assessments are necessarily context sensitive, because the adversarial norm is valuable in some situations and destructive in others. (194)

      Normative scholarship about the adversarial system is vast, and it is neither viable nor necessary to provide a comprehensive summary of it here. Three portions of the debate over adversarial lawyering are relevant to the upcoming discussion of color-conscious prosecution. The first dispute addresses whether adversarial legal norms advance or degrade human dignity. Proponents of adversarialism contend that it safeguards dignity by valuing the client's autonomy (195) and embodying the virtues of loyalty and friendship. (196) Detractors counter that partisanship degrades the dignity of opposing parties and fosters alienation instead of dignity-enhancing reconciliation between adversaries. (197)

      The second area of controversy is whether adversarial norms provide the best way to discern truth. Proponents of adversarial legal practice contend that vigorous and partisan presentation of both sides of an issue is the best way to arrive at truth, because it ensures that no stone is left unturned, and it encourages creative advocacy on behalf of unpopular truths that might otherwise go overlooked. (198) Detractors counter that aggressive partisanship leads to deceptive advocacy, secrecy, and sensationalistic diversions calculated to undermine the quest for truth. (199)

      Finally, there is an additional argument for neutral partisanship--based on majoritarian political theory--that is unique to prosecutors. (200) Some scholars take the position that prosecutors should generally charge whatever statutory crimes apply to a defendant's actions in order to give full effect to the political values reflected in legislation which, in turn, are the values of the legislators and the people who elected them. (201)

      The remainder of this Part will explain why prosecutors should embrace a color-conscious and non-adversarial norm in relation to the racial issues that are implicated in their cases. The following Sections provide concrete examples of some of the most significant and recurrent racial issues, such as profiling and discriminatory jury selection. I will show that a color-conscious, justice-seeking approach in these areas promotes human dignity, furthers the quest for truth, and advances the worthy political value of protecting minorities who are at risk of oppression at the hands of a hostile majority. Thus, prosecutors should emphasize the justice-seeking component of their "dual role" (202) over the adversarial component when their cases involve issues of race.

   2. Confronting Implicit Racial Bias in Discretionary Decision-Making

      As I explained in Part I, racism does not ordinarily manifest itself in deliberate choices or easily detectable racial hostility. Rather, it most often takes the form of implicit bias and stereotypes that negatively influence the way Americans subconsciously evaluate blacks. The same is true of prosecutors. Gone are the days when a prosecutor could ask the jury, "[a]re you gentlemen going to believe that nigger sitting over there (pointing at the defendant), with a face on him like that, in preference to the testimony of [white] deputies?" (203)

      Today, the most important way in which prosecutors contribute to racial injustice--or promote racial justice--lies in their discretionary decisions before and after trial: whether to indict...