Retrying race.

• Author: Alfieri, Anthony V.

INTRODUCTION

This Essay investigates the renewed prosecution of long-dormant criminal and civil rights cases of white-on-black racial violence arising out of the 1950s and 1960s. The study is part of an ongoing project on race, lawyers, and ethics within the criminal-justice system. (1) Framed by this larger project, the Essay explores the normative and sociolegal meaning of that resurgent prosecution. My hope in pursuing this inquiry is to better understand, and perhaps begin to refashion, the prosecutor's redemptive role in cases of racial violence. (2)

Both descriptive and prescriptive in nature, the inquiry addresses race in relation to law and community. (3) Grappling with the historical violence accompanying that troubled relationship, the Essay employs the notion of race cases to decipher juridical forms of white-on-black violence, parsing their content and tracing their genealogy in selected criminal and civil rights prosecutions of the 1950s and 1960s. (4) The central purpose of this inquiry is to ground the justification for retrying race cases in the discretionary ethics of the prosecution function and the normative jurisprudence of criminal justice.

Race cases present hard and easy judgments of prosecutorial discretion. The threshold justification for retrying race cases comes from the standard conception of discretion and its adversary system-based sources of normative guidance. Under standard discretion, easy cases for retrial emerge from supervening events material to the outcome of prior prosecutions, such as the discovery of new physical evidence, the identification of new witnesses, and the belated proffer of inculpating confessions. Hard cases, by comparison, resurface on their own strength of merit without the benefit of supervening events. In such cases, prosecutors adduce no new evidence, produce no new witnesses, and offer no startling "deathbed" confessions. Instead, they grasp the elusive opportunity to right historical wrongs committed in aborted or failed criminal and civil rights prosecutions.

Standard discretion permits prosecutors to seize the opportunity to renew aborted and correct failed race case proceedings. The seizure of prosecutorial power, however well-intentioned, is distinct from the reasoned exercise of prosecutorial discretion. To be sure, power is the necessary precondition of discretion. Yet, power alone is insufficient to give reasoned justification for reopening long-dormant cases. Indeed, if the reopening of race cases turned solely on evenhanded-prosecutorial power, then black victims would not have been made to suffer decades of irrevocable loss and white lawbreakers would not have enjoyed the freedom of lasting immunity.

The hazard of extending the inquiry of reopening beyond the bluntness of curative power is both theoretical and practical. Power infects law and society. (5) It adopts manifold public and private forms. And it finds expression in myriad state, institutional, and individual actions. Allied with race, it distorts lawyer cognition and epistemology, and deforms sociolegal discourse and ideology. The upshot of that alliance is displayed in the decades of prosecutorial inaction toward reopening race cases.

The clandestine alliance of race and power endangers efforts to explicate and justify reopening under the ethical and jurisprudential norms of criminal justice. Inside the criminal-justice system, race and power seem veiled, furtively encircling prosecutors and fouling their professional judgment. Ensnared by race-embedded tradition, prosecutors seem inured to ethical or jurisprudential calls for reopening. And yet, drawing on the tenets of liberal legalism, the criminal-justice system concedes not only a measure of independence to prosecutors, but also a degree of autonomy to law. (6)

Predicated on liberal legalism, the call for reopening echoes the precepts of lawyer independence and the autonomy of law. Like power, however, these precepts mix with race to constrain prosecutor independence and jurisprudential autonomy. The constraint rises from color and the foundational commitment to a colorblind jurisprudence. Unsurprisingly, the jurisprudence of a colorblind faith in criminal-justice prosecutions in part explains the reopening of dormant race cases. As to black victims and white offenders, that faith dictates equality of treatment, for example, in the submission of new evidence. But that explanation applies only to easy cases of newly discovered evidence. It fails to explain the delay in reopening hard cases, where prosecutorial judgment is solely at stake.

The genesis of a colorblind commitment to criminal justice extends far into American legal history. Colorblind claims propound a prosecutorial stance of neutrality toward race and race cases. For prosecutors occupying this stance and contemplating reopening criminal and civil rights cases, race is inapposite. But for divergences of fact or law, like cases are to be treated alike in context and in retrospect.

The aesthetics and mechanics of colorblind prosecution offer an appealing formalism. As a model of legal process, prosecutorial formalism carries integrity and efficiency. Yet, when applied to dormant race cases, it lacks an explanation and a justification for historical delay. Putting aside lawyer error or misconduct, colorblind prosecutors cannot account for either delay or failure in reopening past prosecutions, except to cite extra-judicial sources of interference, such as jury nullification, police corruption or witness intimidation.

The contemporary legacy of colorblind prosecution is color-coded pretext. Driven by mixed motives, the twin desires to stand presently unbiased and rectify past injustice, color-coded claims maintain a disinterested stance while surreptitiously evoking, and often exploiting, racial status and stereotypes. Posed as dispassionate and objective, color-coded prosecutions impart a familiar instrumentalism. Unlike a formalist model of legal process, instrumentalism is purposive and result-oriented. As a model, however, it lacks candor and risks unfairness to both victim and offender. Despite a lack of transparency and the risk of unfairness, color-coded prosecutions supply a legitimate justification for reopening race cases. Outcome-orientation notwithstanding, color-coded-driven reopenings advance dignity and equality norms on behalf of the victim and the state. Reopening affirms the dignity and worth of the victim as an inviolate person. At the same time, it vindicates the state interest in the equal protection of criminal and civil rights laws. That normative advancement sacrifices the process values of candor, openness, and fairness.

The normative costs of color-coded prosecutions leave race-conscious discretion as an alternative justification for reopening abandoned race cases. Race-conscious discretion posits color as a key constituent of sociolegal roles, relationships, and institutions. Sensitive to the starkness of and gradations in color, race-conscious prosecutors survey white offenders, black victims, and their assembled public and private communities for signs of color consciousness. In this way, they seek to reincorporate community into the prosecution function and the criminal-justice process. Under race-conscious discretion, color connects private lawbreaking and public responsibility. Admitting collective responsibility and demonstrating contrition within white-offender communities and embracing the obligations of forgiveness and showing mercy within black-victim communities link restorative justice imperatives to the exercise of race-conscious discretion. That linkage introduces a redemptive role for prosecutors in retrying cases of racial violence.

Redemption-spurred restorative discretion in race cases is color-conscious. Discarding the pretense of colorblind claims and the pretext of color-coded contentions, restorative discretion urges candor in recollecting local histories of racial violence and in reconciling painful differences of cross-racial community. Candor is tied to an open call for offender atonement and victim mercy. That call fastens retributive theories of punishment to redemption and reconciliation norms, integrating offender contrition and victim forgiveness while mitigating vengeance. Stitching retributive and restorative theories of punishment into a race-conscious model of lawyer discretion furnishes a redemptive process for prosecutors sullied by decades-old failure and decades-long neglect of criminal and civil rights cases. Redemption requires the reconception of victim, offender, and community identity, the translation of their private segregated narratives into public empathic dialogues, and the revision of prosecutorial norms and practices to engender cross-racial conversations and restorative collaborations.

To muster a redemptive appraisal of prosecutorial norms and practices in retrying cases of white-on-black violence, the Essay will be divided into five parts. Part I examines the place of race in law and community. Part II outlines a genealogy of race cases and describes the renewed prosecution of criminal and civil rights cases winnowed from the 1950s and 1960s. Part III evaluates the standard conception of prosecutorial discretion as a justification for retrying race cases. Part IV analyzes the notion of race-conscious discretion as an alternative justification. Part V assesses the idea of community-guided restorative discretion as an additional justification. The Essay concludes with a reconsideration of prosecutorial ethics and community norms in retrying cases of racial violence.

1. RACE IN LAW AND COMMUNITY

   Race colors law, crime, and community. It shadows the performance of public and private roles. It shades the meaning of relationships. And it stains the operating norms of institutions. Narrowly crafted, this Essay neither transforms the standard conceptions of criminal-justice...