by Angela J. Davis. New York: Oxford University Press, 2007. 264pp. Cloth. $29.95/£17.99. ISBN: 9780195177367.
Reviewed by Caryl Lynn Segal, Department of Criminology and Criminal Justice, University of Texas at Arlington. Email: csegal [at] uta.edu.
Using powerful examples, Angela Davis discusses the often misunderstood scope of prosecutorial discretion, and her book should make an excellent supplemental text in a judicial and court related course. Political scientists and others will appreciate Davis’ end notes format which is organized by pages and not chapters.
Considering the demographics of the District of Columbia, where she worked in the Public Defenders Office, and her own minority status, inequities based upon race might have been her primary focus. To her credit Davis discusses the multitude of additional factors which come into play when prosecutors make charge, plea and other discretionary decisions. The US Supreme Court found relatively unchecked prosecutorial discretion and judicial deference to be both constitutional and acceptable in UNITED STATES v. ARMSTRONG (1996). Davis never lets one forget that the prosecutor is the most powerful person in the criminal justice system (p.5).
Davis reminds readers of how legislatures across the country have been stripping judges of discretion by enactment of sentencing guidelines, mandatory sentencing and mandatory minimums, while enhancing the power of the prosecutor. In a perfect example of unintended consequences, these statutes were enacted to eliminate sentencing disparities and have resulted in judges’ inability to tailor a sentence to prevent injustice.
The author does a good job of establishing the importance of prosecutorial discretion as a means of keeping check on the limited resources available and aiming to “do justice” without burdening the court system with weak evidentiary cases. She demonstrates the dilemma of control in a system constructed upon separation of powers, wherein the prosecutor is considered part of the executive branch.
Davis lays the groundwork for her extensive display of abuse of prosecutorial discretion by first establishing the dilemma of discretion. “It is not enough for prosecutors to base their decisions on the malleable standard of “doing justice” because such a standard is subjective and ultimately produces unexplainable and unjustifiable disparities” (p.17).
The ultimate goal of “individualized justice without producing unfair disparities” appears illusive despite the well-meaning intentions by many. Davis contends that charging decisions are the most important of the prosecutorial powers and the strongest example of the influence and reach of prosecutorial discretion. Few realize that no law [*683] requires someone who commits a crime to be charged. Although police also have discretion in terms of whether to arrest, until one is charged, imprisonment does not loom as a possibility.
Davis reminds us that prosecutors routinely overcharge because of the multiple statutes that might be violated in one incident. By overcharging, the prosecutor has multiple opportunities to tailor plea negotiations, but this is also fertile ground for inequitable outcomes. The lack of mandatory charging guidelines in most prosecutors’ offices contributes to disparate results in similar cases within the same jurisdiction, and even within the same office.
We are reminded that there is no requirement that a plea be offered. In addition we learn that less than 15% of prosecution offices even have plea guidelines. The prosecutor’s caseload is often the primary factor on whether a plea is offered. The Victims Rights Act and the victims’ rights movement in general have made some changes in prosecutorial decisions.
Although prosecutors have supported victims’ rights statutes, there is no uniformity in obtaining victim input. Davis’ examples illustrate how media attention, which often involves upper middle class or wealthy families, can be seen to be the driving force in the decisions made.
Decisions related to seeking the death penalty in spite of the rising number of exonerations is the subject of one chapter. Davis reminds readers that the prosecutor is the only member of the criminal justice system involved in charge decisions.
She discusses the inability of the public to make informed retention election decisions because of the lack of accountability information. A chapter devoted to the federal system notes the unprecedented number of laws that have been enacted making actions that were heretofore only state offenses federal criminal actions. A chapter is also devoted to the role of the federal Attorney General.
Whether manuals or guidelines are in place does not guarantee a less arbitrary outcome; without consequences for deviations, injustice will continue unabated. “The federal prosecution of drug offenses is probably the single most prominent example of federal intrusion into an area previously left to the states” (p.100). The Federal Sentencing Guidelines concentrated discretion into the prosecutor’s office, with unintended consequences of arbitrary justice as the outcome.
Understanding the actions taken by Attorneys General Thornburgh and Ashcroft relating to both discretion and civil rights is illuminating and disturbing. Thornburgh’s Memo required Congressional action to overcome the problems posed by it. Davis expands on the Patriot Act and how it evolved under Attorney General Ashcroft. She provides insight into how the Patriot Act became a protective covering for non-national security actions and how she believes that racial profiling was misused by the Attorney General’s office. [*684]
The most powerful chapter in the book pertains to prosecutorial misconduct, with common Brady violations only the tip of the iceberg. Davis lays much of the blame on United States Supreme Court rulings that gave absolute immunity to prosecutors:
The Supreme Court established a broad rule of absolute immunity from civil liability for prosecutors in Imbler v. Pachtman . . . This rule immunizes prosecutors from liability for acts ‘intimately associated with the judicial phase of the criminal process’ (p.128)
In most instances the Court has stated that misconduct was usually “harmless error.” The deference shown by the Court disappeared in BANKS v. DREKE (2004), where the ruling overturned the death sentence, seven to two. The Court’s holding included harsh words for the 5th Circuit’s actions in the case. With the Court’s having two new Justices since that case was decided, it remains to be seen whether prosecutorial accountability will be a new direction or an anomaly.
Davis reveals that there have been thousands of recorded cases of prosecutorial misconduct with very few adverse consequences; in many instances the prosecutor went on to higher office or even judgeships following the complaints. “The Supreme Court has suggested that the most appropriate remedy for prosecutorial misconduct is disciplinary action by state board authorities. However the Court’s suggestion has proven to be woefully inadequate and ineffective” (p.143).
In her discussion of the need for accountability, she considers the history of the development of the office of prosecutor:
In sum, neither the history of the development of the American prosecutor nor an examination of the intent of the framers of the Constitution justifies the current model of the prosecution function. Our system of checks and balances has proven ineffective in restraining prosecutorial power. The judicial branch has failed to check prosecutorial overreaching, and the legislative branch traditionally has passed laws that increase prosecutorial powers. (pp.164-165)
It would appear that, with existing public indifference, neither transparency nor information will rectify the situation. Davis offers two hypotheses to explain the public’s attitude, and she places blame on the media. The “if it bleeds, it leads” journalistic policy helps to create a sense of overwhelming crime, and “whatever it takes to keep people safe” becomes acceptable.
Her second, equally compelling argument, is that both television and movies consistently portray positive views of prosecutors. The effects of prosecutorial misconduct were prime time news stories when the North Carolina State Bar Association disbarred Durham District Attorney Mike Nifong for his actions in the Duke University lacrosse case. To its credit media coverage included multiple comments expressing how rare it was to have a prosecutor sanctioned, much less disbarred. [*685]
Davis ends her book by disclosing an ongoing study by the Vera Institute relating to prosecutorial practices. The results will be published in 2008 and might provide the impetus for true reform.
BANKS v. DREKE, 540 U.S. 668 (2004).
IMBLER v. PACHTMAN, 424 U.S. 409 (1976).
UNITED STATES v. ARMSTRONG, 517 U.S. 456 (1996).
© Copyright 2007 by the author, Caryl Lynn Segal.