THE JUST PROSECUTOR.

• Date: 01 October 2021
• Author: Hasbrouck, Brandon

ABSTRACT

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our carceral system must begin with the prosecutor. Our adversarial system of justice so compellingly turns prosecutors away from doing justice to maximizing convictions that it can seem impossible to be both a good person and a good prosecutor. When even progressive prosecutors can be turned into win-seekers rather than neutral agents of justice, Blackness is punished. Black people are disproportionally arrested, charged, convicted, and sentenced for longer than the population overall. Rejecting adversarialism is therefore essential, but that alone will not be enough--in order to act in the interest of justice, a prosecutor must consciously replace adversarialism as a guiding ideology.

This Article imagines prosecutors as solely just actors in our criminal legal system. The prosecutor's function as a minister of justice remains underexamined and undertheorized. So, what is a just prosecutor? My thesis is that abolition constitutionalism, critical originalism, and the liberation justice of hip-hop and the Movement for Black Lives can be used in constructing a prosecutor that improves the ideology and administration of justice in the United States. Abolition constitutionalism demands that prosecutors advance civil liberties, equal protection, and due process rights for criminal defendants throughout the entire criminal process. For example, prosecutors should provide Brady exculpatory material to defendants prior to entering any plea agreements andjoin a prisoner's post-conviction motion when they are actually innocent of the underlying crime. Critical originalism confirms that the criminalization of the use of drugs was driven by racial considerations and requires that prosecutors leverage statutes, such as the Speedy Trial Act, to create robust diversion programs for non-violent drug offenders. And prosecutors that understand liberation justice appreciate that our system was designed to target and imprison Black and Brown people. Because of this profound unfairness, prosecutors must become movement lawyers who work to dismantle white supremacy through decriminalization of drug offenses, prosecutorial nullification, expungement motions, and the elimination of cash bail. There is much common ground in these seemingly disparate threads of theory, where justice is painted--not in definitional words, but in concrete actions--for prosecutors.

TABLE OF CONTENTS INTRODUCTION I. THE MODERN-DAY PROSECUTOR A. The Prosecutor: Money, Power, and Respect B. The "Untouchables" Superpower: Prosecutorial Discretion and Control C. Adversarialism: "You Win or You Lose" II. WHO PAYS THE PRICE OF PROSECUTORIAL POWER? A. "Tryna Fix the System and the Way That They Designed It ": The War on Drugs and Mass Incarceration 1. The Racist Origins of the War on Drugs 2. War Correspondence from Occupied Black America B. "The Black Body: The Clearest Evidence That America Is the Work of Men" III. THE JUST PROSECUTOR A. Abolition Constitutionalism 1. The Charging and Plea Bargaining Process 2. Individual Rights and the Fourth Amendment 3. Post-Conviction Innocence and Illegal Sentences B. Critical Originalism 1. Our Racialized Drug Laws 2. An Originalist Hook: Diversion Programs C. Liberation Justice: From Hip-Hop to Black Lives Matter 1. Perspectives on the System Inherent in the Problems 2. Practical Applications CONCLUSION Rule-following, legal precedence, and political consistency are not more important than right, justice and plain commonsense.

-W.E.B. Du Bois (1)

INTRODUCTION

The prosecutor's role in our criminal legal system has recently reignited a national conversation about race, identity, and criminal justice. (2) For good reason. The Netflix miniseries "When They See Us" underscores prosecutors' direct involvement in the wrongful conviction of the "Exonerated Five" (formerly the "Central Park Five")--five Black and Latino teenagers--for the assault and rape of a white woman jogging in Central Park. (3) The prosecutors, despite lacking DNA evidence linking any of the five teenagers to the crime, obtained coerced confessions that resulted in their convictions. (4) After spending years in prison, DNA evidence from a man who confessed to the attack vindicated all five innocent men. (5) Then there is "Time: The Kalief Browder Story," a documentary that provides an historical account on how Kalief Browder--a Black high-school student accused of stealing a backpack--was detained on Rikers Island for three years, two of which were in solitary confinement, without being tried or convicted. (6) The prosecutors, with no direct or circumstantial evidence, repeatedly delayed Browder's trial, requesting--on several occasions-more time to prepare for trial because "[t]he People [were] not ready." (7) Browder raised concerns with the trial court about prosecutorial abuse, stating, "These guys are just playing with my case." (8) In the documentary, Browder discusses the trauma and mental anguish he endured in prison awaiting trial. Two years after the charges were dropped, Browder committed suicide at his mother's home. (9)

These are just two of many tragic examples that demonstrate the power and abuse of prosecutorial discretion. Both cases illustrate that any efforts at meaningful systemic criminal justice reform must start with the prosecutor. (10) As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. (11) President Barack Obama, in the first ever law-review article by a sitting president, acknowledged this, stating that research shows "the important role prosecutors have played in escalating the length of sentences and can play in easing them." (12)

Prosecutors derive their power from our constitutional structure--prosecutors are given almost unfettered discretion under the separation-of-powers principle to determine who to charge, what to charge, and, often, what the sentence will be. (13) Within that structure, the prosecutor's duty is to ensure that justice is done. (14) The Supreme Court has reaffirmed this foundational principle on many occasions, stating that the government's interest "in a criminal prosecution is not that it shall win a case, but that justice shall be done." (15) Yet, in exercising their outsized power, many prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice. (16)

Stakeholders have recognized this shift and the necessity of reform, as prosecutors play a critical role in our modern-day carceral state. Many prominent scholars have called for independent oversight committees to police prosecutors, (17) and for the election of progressive and Black prosecutors to address racial and economic disparities in our system. (18) Some, such as Professor Rachel E. Barkow, contend that these measures would result in institutional changes and serve as a fundamental check on prosecutorial decisionmaking. (19) Others disagree. They have argued that good people should not be prosecutors as the system has leaned away from doing justice to maximizing convictions. (20) As one former prosecutor stated, "Becoming a prosecutor to help resolve unfairness in the criminal legal system is like enlisting in the army because you are opposed to the current war." (21)

The adversary system derails many prosecutors, including progressive prosecutors, and turns them into win-seekers instead of neutral agents of justice. (22) The pressure to win presents an insurmountable obstacle for many prosecutors who are concerned with racial and economic justice. (23) This is especially troubling given the uncontroverted results of prosecutorial adversarialism: Blackness is punished. To be Black, as Professor Kimani Paul-Emile argues, means to face increased likelihood--relative to whites--of being stopped by the police, (24) searched by the police, being killed during a routine police encounter, (25) and receiving longer prison sentences. (26) One in three Black men go to prison in their lifetime; (27) Black women are three times more likely than white women to be incarcerated; (28) and Black boys are seen as guiltier than white boys. (29) In addition, although there is no evidence that Blacks are more likely to use or sell drugs, we are more likely to be arrested, charged, and convicted for those crimes. (30) For all of these reasons, adversarialism should be rejected. (31) But doing so is not enough.

The problem, though, begins even earlier than the adversarial process. Even if prosecutors could resist the siren's call to become more interested in winning, the culture of prosecutors' offices selects for new hires with the willingness to get convictions--including those of juveniles--even in entry-level positions. (32) These initial points of contact for hiring new prosecutors make no bones about the fact that the work load will be intense. (33) Seldom do job postings make any mention of an expectation that a novice prosecutor would be expected to utilize discretion as a tool of mercy in charging and plea bargaining. (34) If prosecutors learn early on that convictions come first, they are expected to produce a lot of those, and their discretion is primarily for determining what they can win rather than what they should, why would we expect...