Angela J Davis-Arbitrary Justice PDF

ARBITRARY JUSTICE
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ARBITRARY JUSTICE
THE POWER OF
THE AMERICAN PROSECUTOR
ANGELA J. DAVIS
1
2007
1
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Library of Congress Cataloging-in-Publication Data

Davis, Angela J., 1956–
Arbitrary justice : the power of the American prosecutor / Angela J. Davis.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-517736-7
1. Public prosecutors—United States. 2. Prosecution—Decision making—United States.
I. Title.
KF9640.D38 2007
345.73'01—dc22 2006026096
1 3 5 7 9 8 6 4 2
Printed in the United States of America

on acid-free paper
To Howard Davis, my husband and the love of my life
ACKNOWLEDGMENTS
I grew up in the segregated South and learned about injustice at a very

early age. I guess I’ve spent most of my life being angry about one in-
justice or another. Many people along the way have been instrumen-
tal in showing me how to fight injustice and supporting me in the
fight. My brilliant and beautiful sisters Jackie Jordan Irvine, Jennifer
Jordan, and Patricia Jordan Van Dyke figure most prominently. They
were students at Howard University during the 60s when I was grow-
ing up in Phenix City, Alabama, and were the greatest influence on
my thinking and development when I was a child. They still are.
I was the only African American in my high school graduating class
at Brookstone School in Columbus, Georgia, and my high school tea-
chers Nan Rainwater and Dale Smith inspired, encouraged, and pro-
tected me through some difficult times. At Howard University, my
professors Adolph Reed, Ronald Walters, Sharon Banks, and Jennifer
Jordan (my sister), significantly shaped my thinking and writing. At
Harvard Law School, Professor Derrick Bell kept my spirit alive.
My years at the Public Defender Service for the District of Co-
lumbia (PDS) were perhaps the most formative in my development as a
lawyer and advocate for the disadvantaged. The work I did there was
the most important work I have ever done or will ever do, and I am
forever grateful to all of the lawyers and clients with whom I worked. I
especially thank Charles Ogletree, Frank Carter, Michele Roberts,
Rhonda Reid Winston, Kim Taylor-Thompson, and James McComas
for teaching me how to try a case and James Berry, Cynthia Lester, and
the late Deborah Creek for their support and guidance during my years
at PDS. I thank all the lawyers and support staff who have ever worked
at PDS and those who continue to fight the good fight.
I could not have written this book without the help of many
people. I am grateful to them all. I thank the following people who
viii ACKNOWLEDGMENTS
either read early drafts of chapters, participated in interviews, answered

questions, and/or provided advice: Norman Bay, Barbara Bergman,
Elizabeth Branda, Stephen Bright, Paul Butler, Susan Carle, Julian
Cook, Richard Dieter, Peter Gilchrist, Bernie Grimm, Julie Grahofsky,
Vanita Gupta, Laura Hankins, Lenese Herbert, Elizabeth Herman,
H. Marshall Jarrett, Tim Junkin, George Kendall, James Klein, Niki
Kuckes, Ellen Kreitzberg, Milton C. Lee, Julia Leighton, Sandra
Levick, Michael McCann, James McComas, Gwendolyn McDowell,
Wayne McKenzie, Robert Morin, Olinda Moyd, Ellen Podgor,
Michele Roberts, Stephen Saltzburg, Tim Silard, Santha Sonenberg,
Kim Taylor-Thompson, Anthony Thompson, and Gladys Weather-
spoon. I also thank the many dean’s fellows who provided excel-
lent research assistance over the years, including Aku Aghazu, Kelly
Barrett, Ebise Bayisa, Duane Blackman, Joseph Caleb, Jesse Campbell,
Timothy Curry, Jennifer Davis, Melissa Davis, Jennifer Farer, Lauryn
Fraas, Kate Goldstein, Nicholas Hankey, Timothy Harris, Molly
Hostetler, Elizabeth Janelle, and Tara Kelly. My gratitude goes to
David Cole, Congressman Jesse Jackson, Jr., Michael McCann, Charles
Ogletree, Barry Scheck, and Frank Watkins for their kind words and
encouragement; to Marc Mauer, Tracey Meares, Spencer Overton,
and Katheryn Russell-Brown for providing invaluable advice during
the book-writing process; to Althea Mundle and Kathy Perkins Scott
for keeping me together; and to Hilary Schwab for her amazing pho-
tographic skills.
I am grateful to all of my colleagues at the Washington College of
Law and to Dean Claudio Grossman, for his support, financial and
otherwise, throughout this process. James May, Mark Niles, Michael
Tigar, and Tony Varona gave me great advice and encouragement,
and the strength to make a number of important decisions about the
book along the way. Jeff Barsky, Walter Crawford, Mark Burrowes,
and Elma Gates provided great administrative and technical support.
I especially thank Mark for finding my book in a crashed laptop and
introducing me to flashdrives! I would not have survived the process
without the Jet Historical Society (you know who you are), especially
Trishana Bowden, Brenda Smith, Sherry Weaver, and Barbara Wil-
liams. Jamin Raskin, as always, was one of my greatest inspirations
and provided wonderful advice and support from day one. A special
debt of gratitude is owed to my dear friend and colleague, Cynthia
Jones, who with her brilliance, expansive knowledge, and incredible
ACKNOWLEDGMENTS ix
sense of humor, advised and inspired me daily and helped me concep-

tualize so many of the ideas in this book.
I thank the Open Society Institute, not only for the financial sup-
port, but for continued support throughout the process. I also thank
my editors at Oxford University Press, James Cook and Dedi Felman,
for their great advice, assistance, and support. I am the most grateful to
Carol Steiker, who took time from her own important work, to push
me to write a better book. She forced me to calm down and take a
deep breath and provided critical guidance and very clear direction. I
will remain forever appreciative to Carol for the advice I took and
the advice I didn’t take but probably should have.
Last but not least, I thank my incredible family: my wonderful
husband Howard who never complained when I spent countless days
and evenings in front of my laptop; my talented and creative daughter
Zahra Davis, who is a much better writer than I am; my stepdaughters
Erica and Aasha Davis; my son-in-law Jesse Pforzheimer; my afore-
mentioned sisters Jackie, Jennifer, and Pat; my niece Kelli Neptune, a
PDS alumnus and brilliant trial lawyer who provided invaluable in-
formation for the book; my nephew, Lionel Neptune, who promoted
the book in so many important ways from the very beginning; all of
my wonderful nieces and nephews; and my parents Eddie Jordan and
the late Sarah Harris Jordan, who both still watch over me.
For the sake of privacy, the names of the prosecutors, lawyers, judges,
clients, and others in the stories and cases I discuss in this book are
pseudonyms unless they were reported in published cases or widely
reported in the media.
CONTENTS
ONE Prosecutorial Discretion: Power and Privilege 3
TWO The Power to Charge 19
THREE Let’s Make a Deal: The Power of the Plea Bargain 43
FOUR Prosecutors and the Victims of Crime 61
FIVE Prosecutors and the Death Penalty 77
SIX Federal Prosecutors and the Power of the
Attorney General 93
SEVEN Prosecutorial Misconduct: The Abuse
of Power and Discretion 123
EIGHT Prosecutorial Ethics 143
NINE Prosecutorial Accountability 163
TEN Prospects for Reform 179
Notes 195
Index 243
ARBITRARY JUSTICE
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ONE
Prosecutorial Discretion:
Power and Privilege
Delma Banks was convicted of capital murder in Texas and sentenced

to death. Just ten minutes before he was scheduled to die, the United
States Supreme Court stopped his execution and a year later reversed
his sentence. The Court found that the prosecutors in his case with-
held crucial exculpatory evidence.
Dwayne Washington was charged with assault with intent to kill
and armed burglary in the juvenile court of Washington, D.C. Two
adults were arrested with Dwayne and prosecuted in adult court. The
prosecutors in the adult cases threatened to charge Dwayne as an adult
if he refused to testify against the adults. When Dwayne said he could
not testify against them because he didn’t know anything about the
crime, the prosecutors charged him as an adult, and he faced charges
that carried a maximum sentence of life in an adult prison.
Andrew Klepper lived in Montgomery County, a suburb of
Washington, D.C. He was arrested for attacking a woman with a base-
ball bat, sodomizing her at knifepoint with the same bat, and stealing
over $2,000 from her. The prosecutors in his case agreed to a plea
bargain in which Andrew would plead guilty to reduced charges. As
part of the agreement, Andrew would be placed on probation and sent
to an out-of-state facility for severely troubled youth, where he would
be in a locked facility for six to eight weeks, followed by intensive
group therapy in an outdoor setting. Andrew’s parents—a lawyer and a
school guidance counselor—agreed to foot the bill. Andrew’s two
3
4 ARBITRARY JUSTICE
accomplices—whose involvement in the crime was much less serious

than Andrew’s—each served time in jail.
All three of these cases illustrate the wide-ranging power and dis-
cretion of the American prosecutor. In each case, the prosecutor’s
actions profoundly affected the lives of the accused. Mr. Banks was
almost executed by the state of Texas before the Supreme Court re-
versed his conviction. When Dwayne Washington told prosecutors he
couldn’t help them, they followed through on their threat to charge
him as an adult and he faced charges that carried a life sentence in adult
prison. The favorable treatment afforded Andrew Klepper allowed him
to avoid prison after committing a violent sex offense—a rare occur-
rence in these types of cases.
The Supreme Court ultimately found that the prosecutors in
Mr. Banks’s case engaged in misconduct by failing to turn over excul-
patory evidence, but the prosecutors were neither punished nor rep-
rimanded. A trial judge found the prosecutor’s behavior in Dwayne
Washington’s case to be vindictive and dismissed the charges against
him. The prosecutor’s decision in Andrew Klepper’s case was never
challenged; in fact, there was no legal basis for doing so.
I was a public defender at the Public Defender Service for the
District of Columbia (PDS) for twelve years.1 It was then that I learned
of the formidable power and vast discretion of prosecutors. During my
years at PDS, I noticed that prosecutors held almost all of the cards, and
that they seemed to deal them as they saw fit. Although some saw
themselves as ministers of justice and measured their decisions carefully,
very few were humbled by the power they held. Most wanted to win
every case, and winning meant getting a conviction. In one of its more
famous criminal cases,2 the U.S. Supreme Court, quoting a former
solicitor general, stated that ‘‘the Government wins its point when
justice is done in its courts.’’3 A paraphrased version of this quotation is
inscribed on the walls of the U.S. Department of Justice: ‘‘The United
States wins its point whenever justice is done its citizens in the courts.’’4
Yet most prosecutors with whom I had experience seemed to focus
almost exclusively on securing convictions, without consideration of
whether a conviction would result in the fairest or most satisfactory
result for the accused or even the victim.
During my years as a public defender, I saw disparities in the way
prosecutors handled individual cases. Cases involving educated, well-
PROSECUTORIAL DISCRETION 5
to-do victims were frequently prosecuted more vigorously than cases

involving poor, uneducated victims. The very few white defendants
represented by my office sometimes appeared to receive preferential
treatment from prosecutors. Although I saw no evidence of intentional
discrimination based on race or class, the consideration of class- and
race-neutral factors in the prosecutorial process often produced dis-
parate results along class and race lines.
Sometimes neither race nor class defined the disparate treatment.
At times it simply appeared that two similarly situated people were
treated differently. Why did the prosecutor choose to give a plea bar-
gain to one defendant and not another charged with the same offense?
If there were a difference in prior criminal history or some other rel-
evant factor, the disparate treatment would be explainable. But without
a difference in the legitimate factors that prosecutors are permitted to
consider in making these decisions, the disparities seemed unfair. Yet I
saw such disparities all the time.
Prosecutors are the most powerful officials in the criminal justice
system.5 Their routine, everyday decisions control the direction and
outcome of criminal cases and have greater impact and more serious
consequences than those of any other criminal justice official. The most
remarkable feature of these important, sometimes life-and-death de-
cisions is that they are totally discretionary and virtually unreviewable.
Prosecutors make the most important of these discretionary decisions
behind closed doors and answer only to other prosecutors. Even elected
prosecutors, who presumably answer to the electorate, escape ac-
countability, in part because their most important responsibilities—
particularly the charging and plea bargaining decisions—are shielded
from public view.
When prosecutors engage in misconduct, as in the cases of Delma
Banks and Dwayne Washington, they rarely face consequences for
their actions. Delma Banks almost lost his life, and Dwayne Washing-
ton lost his liberty and suffered the many other damaging effects of
criminal prosecution, but their prosecutors just moved on to the next
case. As for Andrew Klepper, perhaps he should have been afforded
the opportunity to receive treatment and rehabilitation, but fairness
demands that other similarly situated youth receive the same or sim-
ilar opportunities. Current laws and policies do not require equitable
treatment.
6 ARBITRARY JUSTICE
DISCRETION—A NECESSARY EVIL
Prosecutors certainly are not the only criminal justice officials who
make important, discretionary decisions. Discretion is a hallmark of
the criminal justice system, and officials at almost every stage of the
process exercise discretion in the performance of their duties and re-
sponsibilities. In fact, without such discretion, there would be many
more unjust decisions at every stage of the criminal process. A system
without discretion, in which police, judges, and prosecutors were not
permitted to take into account the individual facts, circumstances, and
characteristics of each case, would undoubtedly produce unjust results.
Police officers, for example, who are most often at the front line
of the criminal process, routinely exercise discretion when making
decisions about whether to stop, search, or arrest a suspect. Although
they are permitted to arrest an individual upon a showing of probable
cause to believe he or she has committed a crime, they are not required
to do so, and frequently do not. A police officer may observe two
individuals involved in a fistfight. Such an observation provides prob-
able cause to arrest the individuals. Yet the officer has the discretion to
break up the fight, resolve the conflict between the individuals, and
send them on their way without making an arrest. Such an exercise of
discretion may well be in the interest of justice for all involved and
would save the valuable resources of the court system for other, more
serious offenses.
Traffic stops are among the most common of discretionary police
decisions. There are hundreds of potential traffic violations, and every
motorist commits at least a few each time he or she drives. Failing to
come to a complete stop at a stop sign, driving over the speed limit,
and changing lanes without signaling are just a few of the most com-
mon traffic violations for which police officers may issue tickets. They
also are permitted to arrest drivers for some traffic violations,6 but are
rarely required to do so. Few people would support a law that required
police officers to stop and issue a ticket to every person who com-
mitted a traffic violation or to arrest every person who committed an
arrestable traffic violation. In addition to the unpopularity of such a law,
most would agree that the limited resources of most criminal justice
systems should be preserved for more serious offenses.
Although discretion in the exercise of the police function appears
necessary and desirable, the discretionary nature of police stops and
arrests sometimes produces unjust, discriminatory results. When police

officers exercise their discretion to stop or arrest blacks or Latinos but
not whites who are engaging in the same behavior, they are engaging
in racial profiling—a practice that has been widely criticized7 and even
outlawed8 in some jurisdictions.9 Thus, the discretion granted to police
officers to make reasonable decisions in individual cases also some-
times produces unfair disparities along racial lines. Although the laws
and policies passed to eliminate racial profiling may not totally con-
trol police discretion, they demonstrate society’s recognition that such
discretion must be scrutinized to assure fairness in our criminal justice
system.
Judges exercise discretion in the criminal justice system as well. It is
the role of the judge to make decisions in individual cases about ev-
erything from whether a particular defendant should be detained be-
fore his trial to what sentence he should receive if he is convicted of a
crime. Judges who preside over trials must make decisions throughout
the trial about numerous issues, including whether particular pieces of
evidence should be admitted and whether to sustain or overrule ob-
jections. Although there are laws and rules that govern many of these
decisions, most of them involve the exercise of judicial discretion. In
fact, the standard appellate courts often use when reviewing a decision
of a trial judge is whether her decision was ‘‘an abuse of discretion.’’10
Judges, however, like police officers, have been criticized widely
for their discretionary decisions. If a judge releases a defendant pending
his trial date and he is arrested for another crime, the judge is criticized
for exercising discretion poorly.11 Judges have received the most crit-
icism for their sentencing decisions, primarily from individuals who
have complained that a judge’s sentence was not harsh enough in a
particular case. In fact, widespread criticism of the exercise of judicial
discretion resulted in the institution of mandatory minimum and sen-
tencing guideline schemes in the federal government and many states.
Like police officers, judges were accused of treating similarly situated
defendants differently. Proponents of mandatory minimum sentencing
laws and sentencing guidelines argued that all defendants who com-
mitted certain offenses should be sentenced to the same period of
incarceration, regardless of other factors such as their socioeconomic
background, education or lack thereof, or other factors that are unre-
lated to the offense. These laws severely curtailed, and in some instances,
entirely eliminated, judicial discretion.12
8 ARBITRARY JUSTICE
Discretionary parole and pardon decisions also have been the ob-
ject of harsh criticism. Highly publicized cases of individuals com-
mitting violent crimes after parole boards made discretionary release
decisions13 were partially responsible for the elimination of parole in the
federal system and in many states.14 Governors and the president may
exercise their discretion to pardon individuals who have been con-
victed of crimes. However, several presidents in recent history were
severely criticized for exercising this discretionary power.15
Just about every official who exercises power and discretion in the
criminal justice system has been criticized, held accountable, and, in
some instances, stripped of some of his or her power and discretion for
making discretionary decisions that produce disparate or unfair results,
with one exception—the prosecutor. Although numerous scholars in
the legal academy have criticized the unchecked exercise of prose-
cutorial discretion,16 with a few exceptions,17 public criticism of pros-
ecutors has been almost entirely absent. The U.S. Supreme Court
consistently has deferred to and affirmed prosecutorial discretion.18
The legislative branch has acted accordingly. Most of the criminal laws
passed by state legislatures and the U.S. Congress have served to in-
crease rather than reduce prosecutorial power.19
If prosecutors always made decisions that were legal, fair, and
equitable, their power and discretion would be less problematic. But,
as has been demonstrated with police officers, judges, parole officers,
and presidents, the exercise of discretion often leads to dissimilar
treatment of similarly situated people. This is no less true for prose-
cutors than for any other government agent or official. In fact, since
prosecutors are widely recognized as the most powerful officials in the
criminal justice system, arguably they should be held more accountable
than other officials, not less. However, for reasons that are not entirely
clear, the judiciary, the legislature, and the general public have given
prosecutors a pass. Prosecutors’ power and discretion have not been
reduced, even when their decisions have produced grave injustices in
the criminal justice system, and the mechanisms of accountability that
purport to hold them accountable have proven largely ineffective.20
An examination of the history of the American prosecutor offers in-
sight into how prosecutorial power developed and expanded but
provides no support or justification for how it became so entrenched
and accepted over time.
A BRIEF HISTORY OF THE AMERICAN

PROSECUTOR
In the early Middle Ages, when no formal system of criminal justice

existed in England, the crime victim acted as police, prosecutor, and
judge.21 The victim and the victim’s family tracked down the alleged
criminal, decided on the appropriate punishment, and implemented it
themselves.22 Such punishment included physical punishment, resti-
tution, or both.23 The victim of a crime or the victim’s family brought
all criminal prosecutions in English common law.24 This model re-
flected the philosophical view that a crime involved a wrong against an
individual rather than against society as a whole.25 As the legal system
became more complex, individuals and their families hired private
barristers to prosecute cases.26 Obviously, this system provided no legal
redress for poor and uneducated victims of crime who could neither
navigate the legal system nor hire legal assistance.27 The only public
prosecutor in English common law was the king’s attorney, whose sole
responsibility was to prosecute violations of the king’s rights.28
Reformists such as Jeremy Bentham and Sir Robert Peel argued
that the English private prosecution system promoted abusive prac-
tices, such as arrangements between private attorneys and police to
secure prosecutions, prosecutions initiated out of personal animosity or
vengeance, and abandonment of prosecutions after corrupt financial
settlements between the criminal defendant and the private prosecu-
tor.29 Reform efforts were met with great opposition from those who
profited most from the private system—the rich and the legal pro-
fession.30 In 1879, Parliament passed the Prosecutions of Offenses Act,
which conferred limited prosecutorial powers on the director of public
prosecutions.31 The Act did not eliminate private prosecutions entirely,
but the involvement of the victim in the initiation of English prose-
cutions decreased significantly due to the development of modern po-
lice departments in the late nineteenth and early twentieth centuries.32
Criminal prosecutions in colonial America mirrored the early En-
glish experience. Before the American Revolution, the crime victim
maintained sole responsibility for apprehending and prosecuting
the criminal suspect.33 The victim conducted the investigation and
acted as prosecutor if the case went to trial. Alternately, the victim
hired a detective and a private lawyer to perform these functions.34 If
10 ARBITRARY JUSTICE
convicted, the court frequently ordered the suspect to pay restitution

to the victim.35 Poor criminal defendants paid for their crimes by
working for the victim as a servant or having their services sold for the
financial benefit of the victim.36 If the victim did not want these
services or was unable to sell them, the law mandated that the victim
pay the jailer for maintaining custody of the prisoner.37
After the commercial revolution of the eighteenth century, the pop-
ulation in colonial America grew. Large urban areas began to develop,
and the crime rate increased.38 The private mode of prosecution could
no longer maintain order in the rapidly growing colonies. Some victims
negotiated private settlements with their offenders, resulting in spo-
radic, unequal applications of the law, as well as abuses similar to those
that brought about the reform movement in England.39
The colonies began to develop a system of public prosecution to
combat the ‘‘chaos and inefficiency’’ of private prosecutions in a rap-
idly industrializing society.40 This development occurred not only as a
remedy for the problems and abuses of private prosecution but also as a
result of the shift in philosophical view of crime and society. European
scholars such as Cesare Beccaria argued that crime should be viewed as
a societal problem, not simply as a wrong against an individual victim.41
Thus, several colonies adopted a system of public prosecution that
sought to manage the crime problem in a manner that best served the
interests of society as a whole.
In 1643, Virginia became the first colony to appoint a public
prosecutor—the attorney general.42 Virginia modeled its system on
the early English one. Other colonies’ systems of public prosecution
mirrored those of the native European countries of their early settlers.43
Either the court or the governor appointed these first public prosecu-
tors.44 Such prosecutors had little independence or discretion. Their
mandate involved consulting with the court or governor before making
decisions.45
The precursor to today’s elected prosecutor emerged during the
rise of Jacksonian democracy in the 1820s, coinciding with the coun-
try’s move toward a system of popularly elected officials.46 This pe-
riod marked the first effort to hold prosecutors directly accountable to
the people they served through the democratic process. Mississippi was
the first state to hold public elections for district attorneys. By 1912,
almost every state had followed this trend.47 Today, only the District
of Columbia48 and four states—Delaware, New Jersey, Rhode Island,

and Connecticut—maintain a system of appointed prosecutors.49
Although popular elections intuitively seemed to operate as a check
on prosecutorial power and an effective mechanism of accountability,
the popular election of the prosecutor actually established and rein-
forced his power, independence, and discretion. No longer beholden
to the governor or the court, the prosecutor was now accountable to
the amorphous body called ‘‘the people.’’ However, since the actions
and decisions of the prosecutor were not generally a matter of public
record, the people could not actually hold the prosecutor accountable.
Nonetheless, the ballot box was seen as the most democratic mecha-
nism of accountability.50
The early system of federal prosecution began with the Judiciary Act
of 1789.51 This Act created the office of the attorney general, whose
only duties were representing the United States in cases before the
Supreme Court and providing legal advice to the president and heads of
departments.52 The same Act created district attorneys to prosecute suits
for the United States in the district courts, but until 1861, the attorney
general did not supervise the district attorneys.53 In fact, it appears that
no entity supervised these district attorneys from 1789 to 1820, when
they were placed under the supervision of the secretary of the treasury
(until 1861).54 There was no clear organizational structure or chain of
command, with federal prosecutors either operating independently or
receiving instructions from several different federal agencies.55 State
officials and private citizens even conducted some federal prosecutions.56
In the 1920s, a number of states formed crime commissions to ex-
amine both the status of the criminal justice system and its ability to
manage the post–World War I rise in crime.57 Their findings about the
role of the prosecutor and the extent of his power and discretion
shocked most of these commissions. A report by the National Com-
mission on Law Observance and Enforcement (NCLOE) noted: ‘‘In
every way the Prosecutor has more power over the administration of
justice than the judges, with much less public appreciation of his
power. We have been jealous of the power of the trial judge, but care-
less of the continual growth of the power of the prosecuting attor-
ney.’’58 Commissions formed in California, Georgia, Illinois, Minne-
sota, New York, and Pennsylvania made similar observations about the
power of the prosecutor.59
The most well-known crime commission of this era was the

Wickersham Commission, a national body ‘‘formed to study the status
of the criminal justice system.’’60 Like virtually all of the state crime
commissions, the Wickersham Commission criticized the role of the
prosecutor, particularly the absence of a meaningful check on prose-
cutorial power and discretion.61 It noted that the popular election of
prosecutors provided neither an adequate check on this power nor
the best qualified candidates for the position.62 The Commission also
recognized abuses in the plea bargaining power of prosecutors.63 It
recommended a number of reforms, including the establishment of a
state director of public prosecutions with secure tenure to control the
prosecutorial process in a systemized fashion.64 Despite the findings
and recommendations of the Wickersham Commission, other com-
missions, and legal scholars of the 1920s, there has been no significant
reform of the prosecutorial process. In fact, today prosecutors retain
even more power, independence, and discretion than they did in the
early nineteenth century.65
THE IMPORTANCE OF PROSECUTORIAL

DISCRETION
Prosecutorial discretion is essential to the operation of our criminal

justice system, despite the potential for abuse. Society, through the leg-
islature, criminalizes certain behaviors and provides a process for hold-
ing people accountable when they commit crimes. The prosecutor’s
duty is to use discretion in making the all-important decision of whether
an individual should be charged, which charges to bring, and whether
and how to plea bargain. If the accused chooses to exercise his consti-
tutional right to a trial, the prosecutor represents the state in that trial.
The criminal justice system is adversarial by design. Ideally, a capable
and zealous defense attorney represents the accused, and a similarly
capable prosecutor represents the state. If both sides have sufficient
resources and follow the rules, the criminal process should work fairly
and produce a fair result. But the process is not that simple, nor is the
theory always realized in practice. Most people charged with crimes
are represented by public defenders or court-appointed attorneys who
do not have sufficient resources to provide an adequate defense. Some
prosecutors don’t always follow the rules, and some defense attorneys
don’t work hard enough for their clients. To complicate matters even
more, prosecutors have a special, very different role in the criminal
process. Their duty is not to simply represent the state in the pursuit of
a conviction but to pursue justice. ‘‘Doing justice’’ sometimes involves
seeking a conviction and incarceration, but at other times, it might
involve dismissing a criminal case or forgoing a prosecution. These
decisions, however, are left to the prosecutor’s discretion. Without
enforceable laws or policies to guide that discretion, all too often it is
exercised haphazardly at worst and arbitrarily at best, resulting in
inequitable treatment of both victims and defendants.
Discretion is as necessary to the prosecution function as it is to
the police and judicial functions. It is difficult to imagine a fair and
workable system that does not include some level of measured dis-
cretion in the prosecutorial process. As a part of the executive branch
of government, it is the prosecutor’s duty to enforce the laws, and it
would be virtually impossible for her to perform this essential function
without exercising discretion.
One of the reasons prosecutorial discretion is so essential to the
criminal justice system is the proliferation of criminal statutes in all fifty
states and the federal government.66 Legislatures pass laws criminaliz-
ing a vast array of behaviors, and some of these laws, such as forni-
cation and adultery, for example, stay on the books long after social
mores about these behaviors have changed. In addition, some offenses
warrant prosecution in some instances but not others. For example, it
may be reasonable to bring a prosecution in a jurisdiction that crim-
inalizes gambling for someone engaged in a large-scale operation but
not for individuals placing small bets during a Saturday night poker
game in a private home. In addition, in some cases, the evidence may
not be sufficient to meet the government’s heavy burden of proving
guilt beyond a reasonable doubt. Without discretion, prosecutors
might be required to bring criminal charges in cases that most people
would view as frivolous and in cases where the evidence is weak or
lacking in credibility.
Other closely related reasons why prosecutorial discretion is so
essential are the limitation on resources and the need for individualized
justice.67 There are not enough resources in any local criminal justice
system to prosecute every alleged criminal offense. Of course with
every prosecution comes the corresponding need for defense attor-

neys, judges, and other court personnel, and if there is a conviction,
possibly prison facilities. Some entity must decide which offenses should
be prosecuted, and prosecutors are presumably best suited to make these
judgments. Most would agree that the state’s limited resources should be
used to prosecute serious and/or strong cases, while minor or weak cases
should be dismissed or resolved short of prosecution.
Just prosecutions require a consideration of the individual facts and
circumstances of each case. All defendants and crime victims are not
the same. Similarly, there are significant differences between perpe-
trators and victims of particular types of crimes. For example, some
robbers have long criminal histories while others are first offenders or
provide minor assistance to more serious offenders. Some assault vic-
tims are totally innocent of wrongdoing while others may have pro-
voked their assailants with their own criminal behavior. These exam-
ples illustrate just a few of the many factors that should be considered in
deciding whether, and to what extent, a case should be prosecuted.
Despite the obvious need for the exercise of discretion at this stage
of the criminal process, one might question why we delegate this im-
portant function to prosecutors and why we don’t provide more
oversight by the judiciary or some other entity. The most common
answer has to do with the separation of powers. As part of the exec-
utive branch of government, prosecutors have been granted the power
and responsibility to enforce the laws.68 Courts have consistently de-
ferred to the expertise of prosecutors in declining to question their
motives for charging and other important prosecutorial decisions. The
Supreme Court explains this deference as follows:
This broad discretion rests largely on the recognition that the

decision to prosecute is particularly ill-suited to judicial re-
view. Such factors as the strength of the case, the prosecution’s
general deterrence value, the Government’s enforcement
priorities, and the case’s relationship to the Government’s
overall enforcement plan are not readily susceptible to the kind
of analysis the courts are competent to undertake. Judicial
supervision in this area, moreover, entails systemic costs of
particular concern. Examining the basis of a prosecution delays
the criminal proceeding, threatens to chill law enforcement by
subjecting the prosecutor’s motives and decisionmaking to
outside inquiry, and may undermine prosecutorial effective-

ness by revealing the Government’s enforcement policy.69
The Court is concerned that too much interference with the prose-
cutor’s responsibilities might interfere with the enforcement of the
criminal laws, either because prosecutors might decline some prose-
cutions for fear of judicial reprisal or because judicial review or re-
quiring prosecutors to explain their decisions to some other entity
might result in law enforcement secrets being revealed to criminals.
THE DILEMMA OF PROSECUTORIAL DISCRETION
All of the reasons in support of prosecutorial discretion explain why it is

so essential, but they do not address the problems that have resulted from
the failure to monitor how that discretion is exercised. In their effort
to give prosecutors the freedom and independence to enforce the law,
the judicial and legislative branches of government have failed to per-
form the kind of checks and balances essential to a fair and effective de-
mocracy. Consequently, prosecutors, unlike judges, parole boards, and
even other entities within the executive branch such as police, presi-
dents, and governors, have escaped the kind of scrutiny and account-
ability that we demand of public officials in a democratic society. Pros-
ecutors have been left to regulate themselves, and, not surprisingly, such
self-regulation has been either nonexistent or woefully inadequate.
There have been some efforts to promote the fair and equitable
exercise of prosecutorial discretion, but these efforts have been min-
imal and largely ineffective. For example, the Criminal Justice Section
of the American Bar Association (ABA) promulgates standards of
practice for judges, defense attorneys, and prosecutors. The standards
for prosecutors address how prosecutors should perform their most
important responsibilities, with the goal of assuring that prosecutors
exercise their discretion fairly and in a way that will promote the
administration of justice. However, these standards are aspirational.
No prosecutor is required to follow or even consider them. The
Justice Department also sets standards and guidelines for federal pros-
ecutors in its U.S. attorney’s manual. However, like the ABA stan-
dards, the extent to which individual prosecutors follow these guide-
lines is left to the U.S. attorneys in each district or, in some instances,
to the attorney general of the United States. There is no legal re-

quirement that federal prosecutors act in accordance with the U.S.
attorney’s manual, nor are they accountable to anyone outside the
Department of Justice if and when they fail to follow their own rules.
Similarly, individual state and local prosecutors may establish policies
and standards of practice in their offices, but they are not required to
do so, and most don’t. Although a few states have passed laws that
establish standards for prosecutors,70 there is virtually no public ac-
countability when the standards are not followed.
Proponents of the current system of prosecution argue that pros-
ecutors are held accountable to the people through the electoral sys-
tem. They maintain that if prosecutors do not perform their duties and
responsibilities fairly and effectively, they will be voted out of office.
However, for reasons that will be discussed in detail in chapter 9, the
electoral system and other mechanisms of accountability have proven
to be ineffective.
The lack of enforceable standards and effective accountability to
the public has resulted in decision-making that often appears arbitrary,
especially during the critical charging and plea bargaining stages of the
process. These decisions result in tremendous disparities among sim-
ilarly situated people, sometimes along race and/or class lines. The rich
and white, if they are charged at all, are less likely to go to prison than
the poor and black or brown—even when the evidence of criminal
behavior is equally present or absent. Although prosecutors certainly
are not the only criminal justice officials whose discretionary decisions
contribute to unfair disparities, their decisions carry greater conse-
quences and are most difficult to challenge, as the following chapters
will demonstrate.
Most prosecutors join the profession with the goal of doing justice
and serving their communities, and most work hard to perform their
responsibilities fairly, without bias or favoritism. But even well-meaning
prosecutors often fail because they exercise discretion arbitrarily and
without guidance or standards, under the daily pressures of over-
whelming caseloads in a system with inadequate representation for most
defendants, and judges who are more interested in efficiency than jus-
tice. The absence of meaningful standards and effective methods of
accountability has resulted in widely accepted prosecutorial practices
that play a significant role in producing many of the injustices in the
criminal justice system.
It is important that prosecutors make charging and plea bargaining

decisions on the basis of the facts and circumstances of individual cases
to achieve individualized justice. But when they do so without mean-
ingful guidance, standards, or supervision, their decisions become
more arbitrary than individualized, and deep-seated, unconscious
views about race and class are more likely to affect the decision-making
process. It is not enough for prosecutors to base their decisions on the
malleable standard of ‘‘doing justice’’ because such a standard is sub-
jective and ultimately produces unexplainable and unjustifiable dis-
parities. The goal should be to establish practices that promote the
goals of individualized justice without producing unfair disparities
among similarly situated defendants and victims of crime. So far, de-
spite the worthy intentions of many hard-working prosecutors, fre-
quently that goal is not being met.
This book will focus on how the everyday, legal exercise of
prosecutorial discretion is largely responsible for the tremendous in-
justices in our criminal justice system. It does not focus on the inten-
tional, illegal practices that some prosecutors engage in—fabricating
evidence, coercing and threatening witnesses, and hiding exculpatory
evidence. Only one chapter is devoted to these horrendous cases;
others have written about them extensively. Most of the chapters will
demonstrate that, despite their intent to justly enforce the laws, pros-
ecutors engage in widely accepted practices that produce unfair results
for victims, criminal defendants, and the entire justice system. This
book does not tell the story of the good deeds prosecutors do. That
story is told every day in the countless television dramas and news
stories about prosecutors and how effectively they fight crime.71 In-
stead, this book will tell the story that is almost never told: that even
well-meaning prosecutors routinely engage in practices that produce
unfair results—practices that are hidden from the public, and even
when revealed, are somehow accepted as legitimate.
Chapters 2 through 5 discuss prosecutorial discretion in the context
of issues and practices that apply to both state and federal prosecutors—
charging, plea bargaining, victim issues, and the death penalty. Chap-
ter 6 focuses on federal prosecutions and the unique issues and prob-
lems they present. Chapter 7 discusses prosecutorial misconduct, and
chapter 8 explores how the rules of professional conduct for law-
yers have failed to monitor and give guidance to prosecutors. Chap-
ter 9 attempts to explain how and why the existing mechanisms of
prosecutorial accountability have failed to prevent the unfair practices

and results described in the previous chapters. Finally, chapter 10 dis-
cusses prospects for reform of the prosecution function.
The criminal justice system is important to all of us. Some of us and
members of our families will have the unfortunate experience of be-
ing crime victims or criminal defendants. Most will be fortunate en-
ough to avoid personal involvement with the system. But everyone has
an interest in assuring the fair and just operation of a system with the
power to deprive liberty and life. Everyone who believes in democ-
racy has a vested interest in assuring that no one individual or insti-
tution exercises power without accountability to the people. This
book will demonstrate that for some reason, we have given prosecu-
tors a pass—allowing them to circumvent the scrutiny and account-
ability that we ordinarily require of those to whom we grant power
and privilege while affording them more power than any other gov-
ernment official. It will show that we have become complacent, af-
fording trust without requiring responsibility. The time has come to
focus on prosecutors, require information, and, most important, in-
stitute fundamental reforms that will result in more fairness in the
performance of the prosecution function.
TWO
The Power to Charge
It was one of the happiest days of David McKnight’s life. That evening,
he went to a bar in Washington, D.C., to celebrate. He bought a bottle
of Dom Perignon and popped it open ceremoniously. ‘‘Drinks for
everybody—my treat!’’ he announced. ‘‘What are we celebrating?’’
someone asked. ‘‘I killed someone and got away with it!’’ replied
McKnight. He had just learned that a District of Columbia grand jury
had voted not to indict him for the murder of John Nguyen.1
The year was 1987. I was a staff attorney at PDS. Marcia Ross, the
chief of our trial division, and Bob Gordon, a staff attorney, were ap-
pointed to represent McKnight. The case was one of the most pe-
culiar I had observed in my dozen years as a public defender in the
nation’s capital. Two factors were noteworthy. First, someone had
been brutally killed, and the grand jury, with a silent and consenting
prosecuting attorney, decided that the killer should go free. Second,
the accused killer was white. The way the case was handled convinced
me that the two factors were related.
David McKnight was a twenty-five-year-old white Georgetown
University student who worked as a bartender in a restaurant in Wash-
ington, D.C. He lived in a small, one-bedroom apartment that he
shared with John Nguyen, a fifty-five-year-old Vietnamese immigrant
who worked as a cook in the restaurant. Nguyen paid McKnight rent
to sleep in the walk-in closet of the apartment, a space barely large
enough for a small bed.
One Saturday evening, McKnight hosted a party at his apartment.
Nguyen was at the apartment during the party, and McKnight asked
19
him to leave. The two men began to argue, and the argument escalated
into a fight after the guests left. McKnight attacked Nguyen with a
large machete. McKnight was much taller and heavier than Nguyen,
who was just over five feet tall. Nguyen was able to escape into the
bathroom, but McKnight hacked the bathroom door open with the
machete. He then ‘‘almost sliced [Nguyen] in half.’’2 Nguyen man-
aged to stagger out of the apartment and into the street. Both men
were covered with Nguyen’s blood. Ironically, the first ambulance on
the scene picked up McKnight, leaving Nguyen to die. A second
ambulance came for Nguyen and took him to the hospital. Nguyen
died later that night.
The case never went to trial. The prosecutor, who was white,
called Ross and Gordon within a day or two and invited them to
identify witnesses who might testify before the grand jury on behalf of
McKnight. The prosecutor suggested that McKnight might have a
good claim of self-defense and thought there might be witnesses who
could testify about Nguyen’s reputation for violence and McKnight’s
peaceful reputation. Ross was stunned. She had been a trial lawyer at
PDS for seven years and had probably tried more homicide cases than
any other lawyer in the office. As the chief of the Trial Division for the
office, she had supervised most of the homicide cases handled by PDS.
Ross had never before received or heard of such an offer by a prose-
cutor to assist a criminal defendant, especially one who may have been
guilty of murder.
Ross and Gordon identified witnesses willing to testify on behalf of
McKnight. Although defense attorneys are not allowed to be present
during grand jury hearings, the witnesses indicated that they would
testify about McKnight’s good character. Several weeks later, the
prosecutor informed Ross that the grand jury had voted not to indict
McKnight. All charges were dismissed.
Contrast McKnight’s case with that of Daniel Ware, a thirty-three-
year-old African American man who lived in an impoverished neigh-
borhood in the District of Columbia. He was a high school graduate,
employed periodically doing house painting and other manual labor. He
got into an argument with Darryl Brown, a young gangster in the
neighborhood who was known to carry guns. Brown had done time for
armed robbery and weapons offenses and had a well-known reputation
for violence.
THE POWER TO CHARGE 21
The argument stemmed from Brown’s alleged threats against

Ware’s younger brother. Ware approached Brown and told him to
stay away from his brother, and the two men began to argue. The
argument ended when they heard a police car approaching, but Brown
made it clear that he was going to punish Ware for challenging him.
Ware heard that Brown was looking for him, so he began to carry a
knife when he walked through the neighborhood. Three days after the
argument, Brown approached Ware in an alley as Ware was going to
the neighborhood corner store. Brown threatened Ware and reached
inside his jacket. Ware then pulled out his knife and stabbed Brown
once in his chest. Brown died later that evening.
Jim Morris was appointed to represent Ware, and I served as his co-
counsel. Our investigator spoke to numerous residents of the neigh-
borhood who recounted incidents demonstrating Brown’s reputation
for violence. He also found eyewitnesses who confirmed Ware’s ver-
sion of the incident—that Brown was the aggressor and that Ware
had acted in self-defense. One witness claimed to have seen someone
remove a gun from the inside pocket of Brown’s jacket before the
ambulance and police arrived on the scene.
The prosecutor in Ware’s case, at a minimum, was aware of
Mr. Brown’s criminal record and violent reputation. Most likely he
was aware of the witness accounts confirming Ware’s claim of self-
defense. The prosecutor never offered to present exculpatory evidence
to the grand jury on Ware’s behalf. Ware was indicted for first-degree
murder.
The same prosecutor’s office charged both David McKnight and
Daniel Ware. Both cases were homicides involving a decedent with a
reputation for violence and a defendant who claimed that he acted in
self-defense. Yet the cases were prosecuted differently, with no appar-
ent justification for the difference in treatment. It was difficult not to
attribute McKnight’s favorable treatment to his status as a white stu-
dent at a prestigious university.
Although race and class appear to have played a part in the decision
in McKnight’s case, there was no evidence that the prosecutor took
either race or class into account in making his decision. In fact, it is very
unlikely that he consciously decided to give favorable treatment to
McKnight because he was white. However, the prosecutor, who was
white, may very well have unconsciously empathized with McKnight
as a young college student with a future, while simultaneously feeling

no such empathy for Nguyen, a poor Vietnamese immigrant whose
future extended no further than the kitchen of the restaurant where
he worked. The fact that Nguyen had no family or anyone else de-
manding that McKnight be punished made the decision even easier.
Other factors may have affected the decision as well. The prose-
cutor had a good relationship with Bob Gordon, one of McKnight’s
attorneys. The ever-present desire to dispose of the constantly growing
number of criminal cases as expeditiously as possible undoubtedly
played a part as well.
Although it is clear that some or all of these factors may have played
a part in the prosecutor’s decision, it is not clear whether any of them
were consciously considered. Does the arbitrary exercise of prosecu-
torial discretion lead to arbitrary justice—one outcome in one case and
a very different outcome in another very similar case? The prosecutor
in McKnight’s case definitely did not invite exculpatory witnesses to
testify in all, or even most, of his cases. Nor was this practice used by
other prosecutors, as is illustrated by Ware’s case.
Although the prosecutor in Ware’s case handled homicide cases in
the same office, his approach was entirely different and much more
typical. There was at least as much evidence of self-defense in Ware’s
case as in McKnight’s case, yet the prosecutor never considered pre-
senting this evidence to the grand jury. It is doubtful that race or class
played a conscious role in his decision-making process, but dismissing
the charges against Ware was never a consideration. The different ap-
proaches resulted in very different outcomes for reasons that may not
be justifiable. This chapter examines whether these different outcomes
can be traced to the way prosecutors exercise discretion during the
charging process.
HOW THE CHARGING PROCESS WORKS
The charging decision is the most important prosecutorial power and

the strongest example of the influence and reach of prosecutorial dis-
cretion. When the prosecutor makes the decision to charge an indi-
vidual, she pulls that person into the criminal justice system, firmly
entrenches him there, and maintains control over crucial decisions that
will determine his fate. Police officers exercise expansive discretionary
power as well, and the arrest power can have a monumental effect on a
person’s life. But without the prosecutor’s charging power, the arrest
takes the individual no further than the police station.
After the police officer makes the arrest, it is the prosecutor who
decides whether that individual should face the criminal charges that
lead to imprisonment. There is no law that requires an individual to be
charged if he commits a crime. That all-important decision is left in
the hands of the prosecutor. If the prosecutor decides to bring charges,
the person faces imprisonment. If she decides to forgo charges, the
person is free to go.
Prosecutors exercise discretion in a variety of ways. Sometimes,
whether to charge and what to charge are fairly straightforward de-
cisions. The police officer arrests the suspect when there is probable
cause to believe he has committed a crime. Frequently the officer will
recommend charges to the prosecutor. If there is probable cause and
supporting evidence, the prosecutor follows the recommendation by
filing a charging document or seeking an indictment through the
grand jury process.
Although prosecutors sometimes follow the recommendation of
the arresting officer, they frequently exercise other charging options.
They may decline to bring charges, bring only charges that they be-
lieve they can prove, or ‘‘inflate’’ the charges by convincing a grand
jury to indict a defendant for more and greater charges than they can
prove beyond a reasonable doubt at the trial stage of the process. The
decision to forgo charges may be based on practical considerations such
as the triviality of the offense and/or the victim’s lack of interest
in prosecution. The decision may also be based on considerations of
fairness and justice in a particular case. For example, some jurisdictions
offer alternative dispositions such as diversion programs for certain
minor offenses. On the other hand, a prosecutor’s conscious or un-
conscious bias toward or against a particular defendant or victim may
influence the decision either to forgo or bring charges.
At any rate, all of these decisions are entirely within the prosecutor’s
discretion, and there is frequently no readily discernible explanation for
why one decision is made over another. Very few offices have manuals
with guidelines or policies on how to make charging decisions. Offices
that do have such guidelines or policies rarely enforce them.
Prosecutors use a variety of procedures for filing charges against
criminal defendants. There is no constitutionally required procedure
for either state or federal prosecutions, and the process varies from
jurisdiction to jurisdiction. There are also different procedures depend-
ing on the seriousness of the offense. However, some version of the
following process is generally used in most jurisdictions.
When an individual is arrested, within forty-eight hours he must be
brought before a magistrate or judge who determines whether he will
be released or detained prior to his trial date.3 In some jurisdictions, the
prosecutor will file charges at this hearing, especially if the offense is a
misdemeanor. The process is fairly straightforward for misdemeanor
charges. Most misdemeanors involve an uncomplicated set of facts. For
example, if a person is in possession of a small quantity of marijuana, the
only possible charge is possession of marijuana. If an individual hits
someone without using a weapon, the charge is simple assault.
Even for misdemeanors, a prosecutor frequently has a variety of
options at the charging stage of the process. First, she must decide
whether to bring charges at all. If the charge is very minor, and the
arrestee has no criminal record, the prosecutor may decide to forgo
charges altogether. Some jurisdictions have diversion programs in
which the prosecutor agrees to abandon the prosecution if the de-
fendant completes a program of community service or pays restitution
to the victim. The prosecutor may simply choose to charge the de-
fendant with the offense recommended by the arresting police officer.
All of these decisions are discretionary and are made unilaterally by the
prosecutor.
In jurisdictions that do not use the grand jury process, prosecutors
charge felonies through the same basic process. The prosecutor re-
views the police reports and files a charging document based on the
offenses in the state criminal statute. As with misdemeanors, a prose-
cutor has the same option of forgoing criminal charges when she sees
fit. There is no requirement that this decision be justified or explained,
and it is a unilateral decision.
Prosecutors will sometimes consult with crime victims before mak-
ing a charging decision. If charges are filed at the initial hearing, crime
victims may not be available to consult with the prosecutor. Often
charges are filed at the initial hearing, and prosecutors dismiss them at
a later date after consulting with the victim. If the victim is not inter-
ested in supporting a prosecution, the prosecutor may take this factor
into account when making the charging decision. Though it is far
more difficult to prosecute a defendant successfully without the active
participation of the crime victim, the prosecutor may pursue the

prosecution without the victim’s support.4
THE GRAND JURY
Many jurisdictions use the grand jury process for charging felony of-
fenses. This process is more far-reaching and time-consuming than the
prosecutor simply filing a charging document on her own. However,
because the prosecutor maintains unilateral control over the grand
jury, in most cases the grand jury is simply a tool of the prosecutor and
no more democratic than the prosecutor acting independently.
The grand jury is a group of citizens (usually between five and
twenty-three) whose responsibility is to determine whether there is
probable cause to believe an individual committed a crime, whether he
or she should be charged, and what charges to bring.5 The Fifth
Amendment to the U.S. Constitution requires the grand jury process
for all felonies in federal court, but grand juries are not a constitutional
requirement for the states.6 Nonetheless, the constitutions or statutes
of approximately one-half of all states require a grand jury process for
serious crimes.7
Although police officers determine whether there is probable cause
to believe a crime has been committed when they make an arrest, the
purpose of the grand jury is to serve as a democratic and more thorough
check on this decision. Police officers must often make the probable
cause decision on the spur of the moment under stressful circum-
stances. Grand jurors are provided with more information and time to
make this determination and are able to do so in a more thoughtful
way. The prosecutor subpoenas and presents witnesses to the alleged
crime, and the grand jurors are permitted to question the witnesses.
Grand jurors may also require prosecutors to subpoena additional wit-
nesses they deem necessary. The prosecutor provides the jurors with
the applicable laws and advises them on the appropriate charges.
After hearing from all of the witnesses, the grand jurors determine
if there is probable cause to believe the defendant committed the of-
fense. If they decide that there is not probable cause, they do not bring
charges, and the defendant is freed from the system. If the grand jurors
do find probable cause, they determine which charges to bring, and
those charges are set forth in a formal charging document called an
indictment. The defendant is served with a copy of the indictment at a

brief court hearing, and pretrial hearings and a trial date are scheduled.
Grand jurors rarely have difficulty concluding that there is probable
cause to believe the defendant committed the offense. Probable cause is
the lowest legal standard on the legal spectrum and far from the high
standard of proof beyond a reasonable doubt that prosecutors must
meet before a defendant is convicted of a crime. Probable cause may be
proven if it is more probable than not that the defendant committed
the crime.8 Although the probable cause standard is easy to meet, the
grand jurors are expected to make the decision, not the prosecutor. Yet
grand jurors rarely act independently of the prosecutor.
Why doesn’t the grand jury work as a check on the power and
discretion of the prosecutor? As with many criminal justice institu-
tions, the theory sounds better than the actual practice. Grand jurors
are ordinary citizens without legal training. The prosecutor controls
the grand jury process, deciding which witnesses to call and which
questions to ask. Although grand jurors may theoretically subpoena
witnesses, they don’t usually know enough about the case to know
which witnesses to call. They may ask questions of witnesses, and fre-
quently they do, but they are almost always brief, follow-up questions
after the prosecutor has concluded her questioning. Grand jurors don’t
know the criminal statutes or how to apply them, so they must rely on
the prosecutor, who interprets and explains the law to the grand jurors,
suggesting the appropriate charges.
Neither the defendant nor the defense attorney is allowed to be
present during the process. Thus, the witnesses are not subject to cross-
examination, which could potentially expose weaknesses in their tes-
timony. The defense may not present exculpatory evidence to the jury
unless the prosecutor agrees, and if she does, the defense attorney may
not be present during the witnesses’ testimony. In federal prosecutions
and in most states, prosecutors are not required to present exculpatory
evidence to a grand jury, and they rarely do.9 With only one side of
the story being told, it’s very easy for the prosecutor to convince the
grand jurors that the relatively low standard of probable cause has been
met. In essence, the grand jury is a very one-sided process entirely
controlled by the prosecutor.10 As a result of this pro forma process,
grand jurors rarely decline to return an indictment.11
All jurisdictions have rules that require the grand jury to act within
a certain period of time if the defendant is detained.12 These rules are
designed to protect the defendant’s right to a speedy trial by preventing

the prosecutor from delaying the grand jury process. For example, in
the District of Columbia, if the defendant is detained, the prosecutor
must return an indictment within nine months.13 If the indictment is
not produced within that time period, the complaint is dismissed, and
the defendant is released. Of course, the dismissal of the complaint
does nothing more than temporarily free the defendant from the
criminal justice system. In most cases, the prosecutor is free to continue
the grand jury investigation, but no restrictions may be imposed on the
defendant during this process. If an indictment is returned at a later
date, the defendant will receive a summons to appear in court to face
charges rather than facing rearrest on the same charges.
Despite these rules, prosecutors maintain the power to delay the
grand jury process. If a prosecutor has nine months to produce an
indictment, she may legally produce the indictment eight months and
twenty days later, even if he could have easily indicted the case in two
weeks. Such unnecessary delay violates an individual’s right to a speedy
trial, especially for an innocent defendant who is detained in jail pending
the outcome of his case. However, since the grand jury process is
secret and thus inaccessible to the defense attorney, there is no way to
easily discover whether prosecutors are intentionally causing delay.
Even if the process were more open, it would be difficult to prove
intentional abuse because there are so many legitimate reasons why an
indictment might be delayed, such as difficulty locating witnesses, high
prosecutorial caseloads, and so on.
Trevor Davis’s case provides an example of how a prosecutor may
easily abuse the grand jury process without consequences. He was
arrested for the rape of a young woman who lived in his neigh-
borhood, and I was appointed to represent him. He was a Jamaican
immigrant who had recently moved to the United States with his
mother. He was a very slight man—about 5'2'' and barely 120 pounds.
He had no prior convictions, but because of the seriousness of the
offense and his lack of substantial ties to the community, the judge set
a high money bond, which Davis was unable to post. His mother
was devastated by the charges. She insisted that her son would never
rape anyone, and she tried desperately to raise the money to post
bond for him. Unfortunately, her housekeeper’s salary barely paid her
bills. She called me frequently, tearfully begging me to get her son out
of jail.
Davis was adamant that he was innocent of the charges. He told me

that he knew the young lady and that she had consented to having sex
with him. He also informed me that she was totally deaf. He stated that
she couldn’t speak but that she had communicated her consent to
sexual intercourse through her body language. I assured him that I
would investigate the case thoroughly and prepare to present a consent
defense at trial.
I sent my investigator to take a written statement from the
complainant—a standard procedure and very important part of the
investigative process. In the District of Columbia, prosecutors are not
required to provide any information about the case to the defense team
before the case is indicted. Even after indictment, the discovery rules
do not require prosecutors to provide complainant or witness state-
ments to the defense. These statements must only be turned over after
the complainant or witness testifies in court. In most cases, such tes-
timony would only occur at the time of trial. In order to advise the
client and prepare for trial, competent defense attorneys conduct thor-
ough investigations in each case as soon as possible after arrest. These
investigations include finding witnesses and taking statements from
them when possible.
In this case, getting a statement from the complainant was com-
plicated by the fact that she was deaf. I hired a sign language interpreter
to accompany my investigator to the complainant’s home and translate
her statement. The interpreter planned to communicate with the
complainant directly, explain their purpose, and translate the investi-
gator’s questions and the complainant’s answers. The investigator would
write down the statement as interpreted. At the end of the statement,
the interpreter would ‘‘sign’’ the written statement to the complainant
and obtain her signature.
The statement was never taken. When the investigator and inter-
preter arrived at the complainant’s home, her mother came to the door
and informed them that her daughter would not be giving any state-
ments to any member of the defense team. Complainants and wit-
nesses are not required to give statements—written or oral—to defense
counsel or their investigators. Some choose to give statements and
some don’t. Prosecutors are not legally permitted to dissuade witnesses
from talking to members of the defense team, although some strongly
suggest that witnesses would be better off if they didn’t cooperate with
the defense. My investigator never had the opportunity to commu-

nicate with the complainant directly.
I later went to speak with the complainant’s mother to attempt to
explain why I had sent my investigator and the interpreter to her
home. I learned that communication with the complainant would
have been impossible. During my conversation with the complainant’s
mother, she told me that her daughter wouldn’t be able to give a
statement because she didn’t know sign language. When I asked her
how her daughter ordinarily communicated, she said that her daughter
only was able to communicate with her and that they had their own
special language. I learned that her daughter had never been sub-
poenaed to the grand jury and that the prosecutor was aware of her
inability to understand standard sign language.
If the complainant didn’t understand sign language, how would the
prosecutor ever be able to present her testimony to a grand jury or to a
jury at trial? Hearsay evidence is permitted in the grand jury, so he
might be able to persuade a grand jury to indict based on the testimony
of the arresting officer.14 However, it is highly unlikely that any court
would allow anyone else to present the complainant’s testimony at a
trial, and only certified sign language interpreters with no interest in or
connection to the case were permitted to translate in court. Certainly
no judge would allow the complainant’s mother to translate her tes-
timony, not only because of the impossibility of verifying the accuracy
and credibility of her translation but also because of her obvious bias
toward her daughter. Would the prosecutor be able to convince a jury
to convict my client of rape without the testimony of the complainant?
I knew of cases where prosecutors had obtained convictions without
putting the alleged victim on the stand, but there had always been
other witnesses to the crime who could testify about what they had
observed. There were no such witnesses in Davis’s case. I didn’t be-
lieve the prosecutor could ever prove my client’s guilt. I wanted him
to own up to that fact, so my client could be released from jail.
It soon became obvious that the prosecutor was ignoring my at-
tempts at communication. I left dozens of phone messages and sent a
letter requesting a meeting; I received no responses. When I finally
reached the prosecutor and expressed my concerns, I told him that
I was aware of the complainant’s inability to understand standard
American Sign Language and asked him how he planned to present
evidence of a rape without her testimony. The prosecutor gave very

evasive answers to my questions, insisting that he would be able to
make his case. He reminded me that he had nine months within which
to indict Davis. Although I suspected that the prosecutor knew that he
would not be able to prove my client’s guilt, I had no proof that he was
abusing the grand jury process, nor did I have the right to demand
proof that he wasn’t. The rules permitted nine months to indict, and
the time period had not expired.
Ultimately, my suspicions were proven correct. When I received
notice that the case would not be indicted, I called the prosecutor. In a
rare moment of candor, he said, ‘‘I know your client is guilty. At least
he did nine months in jail.’’ I was stunned. When this prosecutor was
unable to prove my client’s guilt legally, he took it upon himself to act
as jury and judge—single-handedly finding him guilty and ‘‘sentenc-
ing’’ him to nine months in jail.
The prosecutor’s actions certainly conflicted with the American
Bar Association’s standards for the prosecution function. These stan-
dards state that a prosecutor should only bring charges that she believes
she can prove beyond a reasonable doubt.15 Even if a jury ulti-
mately found the defendant not guilty, the defendant would bear the
emotional—and perhaps financial—burden of defending against the
charges. Furthermore, the defendant might labor under the shadow of
suspicion that often lingers even after charges are dismissed or not
proven. Despite strong language that condemns the prosecutor’s ac-
tions, the American Bar Association standards were useless. Prosecu-
tors suffer no penalty for failure to follow these standards. In fact, they
are not even required to consider them before making important
prosecutorial decisions.
Other than his statement to me over the phone, I had no proof
that the prosecutor had abused the process. Even if I had been able
to produce better proof, action at this point seemed futile. Ordinarily,
I would file a motion to dismiss the indictment for prosecutorial
misconduct. But now that the case was dismissed and my client was
free, that remedy was not available or necessary. The only apparent
alternative appeared to be a referral to the local bar counsel on a claim
of unethical behavior—an option that probably would have been futile
and definitely would have caused difficulty for future clients that I
represented.16 Davis had his freedom and was not interested in sup-
porting any action against the prosecutor. I decided to take no action.
OVERCHARGING
Prosecutors routinely engage in overcharging, a practice that involves

‘‘tacking on’’ additional charges that they know they cannot prove
beyond a reasonable doubt or that they can technically prove but are
inconsistent with the legislative intent or otherwise inappropriate.
Prosecutors overcharge in the grand jury where they are the final ar-
biters and interpreters of the law and in jurisdictions that do not
employ the grand jury process. The practice serves two purposes: (1) It
gives the prosecutor a greater advantage in the plea bargaining pro-
cess by providing him with more charges with which to bargain,17 and
(2) It gives him an advantage at trial because the additional charge or
charges act as a ‘‘backup’’ in case the jury fails to convict on the more
relevant charges.
The first purpose, discussed more thoroughly in chapter 3, is the
most common, since most cases are resolved through the plea bar-
gaining process. If the prosecutor charges five offenses instead of two,
he may get the defendant to agree to plead guilty to three charges in
exchange for his agreement to dismiss two, even if he would have a
difficult time proving the two charges before a judge or jury. On the
other hand, if the prosecutor only charges the three offenses for which
he has solid proof beyond a reasonable doubt, he will have less with
which to bargain and will probably secure a guilty plea to only one
offense in exchange for his promise to dismiss two. Overcharging gives
the prosecutor more ‘‘bang for the buck.’’
The second purpose of overcharging is fulfilled less frequently,
primarily because most cases are resolved with a guilty plea. If a case
does proceed to trial, the prosecutor has a psychological advantage if a
jury is presented with a long list of charges to consider. A long list of
charges makes the defendant look ‘‘guiltier’’ and provides subcon-
scious pressure to find the defendant guilty of at least one or two
charges. The juror thinks ‘‘with all of these charges, he must be guilty
of something.’’ Since jurors have a tendency to compromise when
there is disagreement on the final verdict, it’s more likely that at least
one conviction will be secured.18
It is relatively easy for prosecutors to engage in overcharging be-
cause of the proliferation of criminal offenses in the United States.
One criminal act can be charged as a number of different offenses, each
with its own penalty. Although these offenses sometimes merge at the
sentencing stage of the process,19 jurors are permitted to find the

defendant guilty of a number of offenses for commission of a single act.
How does the practice of overcharging lead to unjust results? The
case of Marcus Dixon provides a stark example. Dixon was a football
star and honor student at Pepperell High School in Rome, Georgia.
He had a 3.96 GPA, scored over 1,200 on his SAT exam, and earned a
full scholarship to Vanderbilt University. His dreams of going to
college were dashed when he was charged with numerous sexual of-
fenses as a result of a single sexual encounter with a fellow student.
Marcus claimed he had had consensual sex with the fifteen-year-old
girl, and she claimed he had raped her. Marcus was eighteen years old
at the time of the incident.
Police and prosecutors believed the girl, and Marcus was charged
with rape, sexual battery, aggravated assault, false imprisonment, stat-
utory rape, and aggravated child molestation. All of these charges
stemmed from a single act. The jury acquitted Marcus of rape, sexual
battery, aggravated assault, and false imprisonment after only fifteen
to twenty minutes of deliberation.20 They convicted him of statutory
rape, which consists of sexual intercourse with a minor, whether or not
the minor consents. According to juror Kathy Tibitz, ‘‘We had no
choice with that.’’21 The jury had the most difficulty with the last
charge. The Georgia statute defined aggravated child molestation as
sex with a minor that causes injury. Because the girl was a virgin at the
time of the incident, there was some vaginal injury, so the jury found
Marcus guilty of this charge as well.
The penalty for aggravated child molestation in the state of Georgia
was a mandatory minimum sentence of ten years in prison with no
possibility of parole. The judge had no discretion to impose a lesser
sentence. When juror Kathy Tibitz heard about the sentence, she was
devastated. She later stated that if she had known the sentence was so
harsh, she never would have convicted him of the crime.22 Repre-
sentative Tyrone Brooks, one of the state legislators who had passed
the aggravated child molestation law, spoke out in Marcus’s defense.
According to Brooks, ‘‘the intent of the law is very clear—to protect
children from predators. Marcus Dixon is not a predator.’’23 Brooks
introduced legislation to change the law, but his efforts came too late
to help Marcus Dixon.
Marcus Dixon’s case garnered much local and national attention.
Marcus is African American and the adopted son of white parents. The
alleged victim is white. Members of the African American community

held rallies and otherwise advocated for Marcus’s release, alleging that
the prosecution was racially motivated.
Assistant district attorney John McClellen prosecuted the case. In a
television interview, he admitted that the aggravated child molestation
charge was used as a ‘‘backstop’’ in case Marcus was acquitted on the
rape charge.24 McClellan’s remarkable candor underscores the extent
to which prosecutors openly engage in practices that are clearly
inconsistent with American Bar Association standards and their duty to
seek justice in every case. This openness undoubtedly stems from their
awareness that there is no effective system in place to hold them ac-
countable for questionable practices and policies.
The Supreme Court of Georgia reversed Marcus Dixon’s con-
viction for aggravated child molestation on May 3, 2004, on the
ground that the state legislature did not intend that the statute be used
in cases involving nonforced sex between teenagers less than three
years apart in age.25 The court presented a detailed explanation of the
legislative history of the statutory rape and child molestation statutes
and concluded that there was ‘‘a clear legislative intent to prosecute the
conduct that the jury determined to have occurred in this case as
misdemeanor statutory rape.’’26 It concluded by urging the legislature
to reexamine the statutes and make a clearer distinction between
statutory rape, child molestation, and the other sex crimes.
The reversal of Marcus Dixon’s conviction for child molestation is
noteworthy from several perspectives. First, a reversal in any criminal
case is a rare phenomenon. Second, the issue the court addressed—
charging the same behavior under several statutes—is a common prac-
tice that courts have long upheld.27 Third, although the court’s opin-
ion clearly dealt with prosecutorial discretion in charging, it does not
directly address the issue. Instead, the court focused on the legislature’s
failure to clarify the laws, providing yet another example of the ju-
diciary deferring to prosecutorial discretion.
DISCRETION IN THE CHARGING PROCESS
We have seen how prosecutors single-handedly control the charging

process. This power is problematic because frequently it is exercised
inequitably. Even when prosecutors intend to perform their duties
responsibly and without bias or favoritism, as most do, they often fail.
Is this failure largely the result of the arbitrary nature of the exercise of
prosecutorial discretion and the relative absence of efforts to stan-
dardize or regulate charging practices?
Prosecutor offices handle the exercise of discretion in individual
cases in different ways. Much depends on the practice of the chief
prosecutor of a particular office. In most state and local jurisdictions,
the chief prosecutor is called the district attorney or state’s attorney and
is an elected official. She hires assistant district or state’s attorneys to
work in her office and has the power to supervise, promote, and fire
them. The chief prosecutor may grant total discretion to individual
prosecutors to handle cases as they see fit. This practice obviously leads
to dissimilar results in similar cases in a single office. At a minimum,
even a chief prosecutor who seeks to grant maximum independence
and freedom to her assistants tends to inform them of her general
philosophy regarding the prosecution of certain cases. Prosecutors who
want to be promoted or at least stay in favor with their boss would be
inclined to follow that philosophy.
For example, if a district attorney ran for office on the promise of
prosecuting drug offenses zealously to get drugs off the streets, she
would want her assistant prosecutors to help her fulfill that promise.
The assistant prosecutor who regularly declined to bring charges in
these cases would probably face a reprimand and certainly would not
be promoted or otherwise advance in that office. The district attorney
with a more laissez-faire philosophy might not promulgate specific
charging policies and require her assistants to follow them, but she
would certainly give them general guidance.
Other district attorneys may establish specific charging policies for
certain types of crimes. For example, a number of prosecution offices
have established strict charging policies for firearms offenses, requiring
that every person caught in possession of an illegal firearm be charged
under the relevant statute, regardless of the circumstances. Others
require assistants who wish to make an exception to the policy to seek
permission from a supervisor or even from the district attorney herself.
Many chief prosecutors grant their assistants broad discretion to
make decisions about individual cases. There are no prosecution of-
fices that have mandatory charging policies for all offenses, and very
few offices that have such policies for any offense. The combination of
vast discretion and inconsistent charging decisions inevitably results in
the disparity in charging illustrated by the treatment of McKnight and

Ware described at the beginning of this chapter.
The arbitrariness of discretionary charging decisions sometimes
results in race or class disparities, but not always. Sometimes the dis-
parities seem unfair simply because there is dissimilar treatment of
similarly situated people, regardless of their race or socioeconomic
status. The vast majority of my clients at PDS were young, poor,
African American men with limited formal education and no job skills.
Yet there were vast disparities in how they were treated, even when
significant factors like their criminal history and the nature of the
offense were taken into account. The differences in treatment certainly
varied from prosecutor to prosecutor, but even individual prosecutors
were not consistent in their own charging policies. A great many
unpredictable factors came into play, such as the recommendations of
the arresting officer, the interest of the victim in prosecution, and the
prosecutor’s own caseload, to name a few. Although all of these fac-
tors are considered to be legitimate considerations,28 their application
creates disparate and often unfair results, even in the charging practices
of a single prosecutor.29
A busy prosecutor with a large caseload has a limited amount of
time to work on each case, so she prioritizes. As McKnight’s case il-
lustrates, there are even disparities in the treatment of very serious cases.
However, for the most part, prosecutors will almost always devote
the most attention to the most serious cases—homicides, rapes, serious
assault, and other cases involving violent or otherwise dangerous of-
fenses.
The prosecution of other, less serious cases depends on a variety of
unpredictable factors. For example, if a prosecutor has a number of
household burglaries among his pending cases, his consideration of a
legitimate factor like the victim’s interest in prosecution may produce
disparities. Consider Burglary A committed in a poor, high-crime
section of town. The police arrest Defendant A, who lives in the same
neighborhood as the victim. The evidence is pretty strong. The police
discover the defendant’s fingerprints on various items in Victim A’s
apartment and proceeds of the burglary, including a radio and some
costume jewelry, in the defendant’s home. The defendant is arrested,
and the prosecutor must make the charging decision.
First, the prosecutor notices the victim’s address. She lives in a very
rundown apartment building in a neighborhood known for drug
dealing and other crimes. He decides to call the victim to ascertain her
interest in prosecution, but he soon notices that she has no phone. At
this point, the prosecutor is seriously considering dismissing the case
altogether. He’s been down this road before. With no means of
contacting Victim A by phone, it is highly unlikely that she will show
up for witness conferences, the grand jury, or the trial. Frequently,
residents in Victim A’s building never receive their mail because it is
often stolen from the lobby because of broken mailbox locks. Even if
by some miracle the victim receives the prosecutor’s mailed notices of
witness conferences, if she has a job, she probably won’t show up
because these conferences are scheduled during work hours. In ad-
dition, police officers are often unsuccessful when they attempt to
serve subpoenas in that area because people in that building rarely open
their doors for the police voluntarily.
The prosecutor looks at Defendant A’s criminal record. He has
a couple of misdemeanor arrests, but no convictions. Prosecution
doesn’t seem worth the trouble in this case. He dismisses the case, and
Defendant A is free to go. The prosecutor is sure he won’t receive
complaints from Victim A, and he doesn’t. She doesn’t have a phone,
and she doesn’t know who to call.
The same prosecutor considers Burglary B. Victim B lives in a
single-family home in an upper-middle-class neighborhood. De-
fendant B, like Defendant A, lives in the same neighborhood as the
victim. The evidence is equally strong—a stolen portable CD player
and gold necklace are found in Defendant B’s possession, and his
fingerprints are lifted from various items in Victim B’s home. The
prosecutor is quite familiar with Victim B’s neighborhood. Its residents
are professionals—primarily lawyers, doctors, and business owners—
and they report very few crimes. The prosecutor notices that the
victim is a college professor. He calls the first of the three phone
numbers listed for her and is pleased to reach her instantly. Victim B is
upset and angry. Defendant B is a neighbor’s son whom she has known
since his birth, and she is outraged that he would break into her home
and steal her belongings. When Victim B found her home trashed
and her personal belongings strewn throughout her home, she never
dreamed that Defendant B was responsible. When she finds out, Vic-
tim B wants Defendant B prosecuted to the maximum extent of the
law. Before the burglary, she had seen him smoking marijuana on her
neighbor’s porch and reported the incident to his parents. Victim B is
confident that the burglary and particularly vicious trashing of her

home was ‘‘payback.’’
The prosecutor checks Defendant B’s criminal record. It’s clean—
no convictions or arrests. He is a college-bound high school senior.
Ordinarily, the prosecutor would give someone like Defendant B a
break, but he doesn’t think he has much choice in this case. He has to
prosecute. This victim would undoubtedly call his supervisor and
make trouble for him if he didn’t. Besides, the prosecution is likely to
be easy. The victim will probably appear for every conference and court
appearance and will make a great witness—articulate, sympathetic, and
very appealing to a jury.
The victims and defendants in cases A and B were very similar in
every way that should be relevant to a criminal prosecution. The
victims suffered similar harms, and the defendants were very simi-
larly situated—their actions were virtually identical, and neither had
a criminal record. The prosecutor, victims, and defendants were all
African American, so race wasn’t an issue. Class seemed to play a role,
but not in a clear and consistent way. Victim A may have been as
interested in prosecution as Victim B, but because she didn’t have a
phone and lived in a depressed neighborhood, the prosecutor decided
that the costs of prosecution outweighed the benefits. Victim B’s
middle-class status certainly affected the prosecutor’s decision as he
thought about her appeal as a witness, but it was probably her strong
interest in prosecution that swayed him most. Had the prosecutor
made an effort to communicate with Victim A, he might have learned
that she was equally committed to prosecution. Defendant B’s status as
a middle-class college-bound student didn’t help him at all in this case.
The prosecutor might have given him a break if Victim B had not been
so insistent on prosecution.
Neither race nor class was a conscious consideration of the pros-
ecutor in cases A and B, but either factor may have had an unconscious
effect on the prosecutor’s decisions. The decisions on the surface ap-
pear to be driven by expediency: Victim B’s case posed fewer demands
on the prosecutor’s already busy schedule. But should expediency
carry greater weight than other factors in making the charging deci-
sion? Furthermore, the claim of expediency may mask deeper, unac-
knowledged attitudes influenced by class. Might the prosecutor have
been more comfortable meeting with the college professor—an ar-
ticulate, professional woman with whom he could empathize? Perhaps
both expediency and class attitudes played a larger role in the decision-
making process than other legitimate considerations.
Some of the factors that appear to be legitimate considerations in
the charging decision may not be so legitimate when examined closely.
For example, the victim’s interest in prosecution, the criminal history
of the defendant, and the strength of the government’s case all appear
to be valid factors at first blush, but the effect of other issues on these
factors may lessen their validity. Cases A and B illustrate how the
victim’s interest in prosecution may be misconstrued and the role that
class may play in making that determination. The prosecutor made
assumptions about Victim A’s interest in prosecution on the basis of
where she lived and his prior experience with other victims in that
neighborhood. He felt so comfortable with his unsubstantiated as-
sumptions that he didn’t even bother to try to contact her to ascertain
her interest in prosecution.
The criminal history of the defendant seems to be a neutral and fair
consideration. The defendant without a criminal record may be more
deserving of less serious charges or a more favorable plea bargain than
one who is a repeat offender. On the other hand, criminal records may
be deceiving, especially arrest records. Blacks and Latinos are stopped,
searched, and arrested more frequently, so they are more likely to have
an arrest record, even if they are no more involved in criminal activity
than their similarly situated white counterparts.30
The strength of the government’s case must be considered in de-
termining whether there is sufficient evidence to secure a conviction.
A weak government case may be an indication that the defendant is
not guilty, or at least that the case is not worthy of prosecution. For
example, if a case depends on a weak eyewitness identification or min-
imal circumstantial evidence, the prosecutor would be wise to forgo
prosecution. On the other hand, a case with a confession corroborated
by solid physical evidence like fingerprints or DNA may be worthy of
prosecution. However, prosecutors sometimes consider unreliable
factors in assessing the strength of their cases. For example, the victim’s
interest in prosecution and her jury appeal are often considered in
determining the strength of the case. Because prosecutors often mis-
calculate these factors or consider them unfairly, their importance may
be either overstated or inappropriately considered. Prosecutors must
certainly consider whether a witness is able to communicate with the
jury effectively, but if such a problem exists, it is the prosecutor’s job to
work with the witness and prepare her to testify. Some witnesses need
more help than others, but that factor should not determine whether
their cases should be prosecuted, nor should it result in an arbitrary
windfall for the accused.
WILLFUL BLINDNESS
The prosecutorial practices described in this chapter frequently pro-

duce uneven and unjust results, but they are common, legal practices.
The U.S. Supreme Court has endorsed and protected prosecutorial
discretion in its jurisprudence, even making it difficult to mount legal
challenges to practices that appear to clearly violate the constitutional
rights of the accused and/or the crime victim.31 These clear cases of
prosecutorial misconduct that involve intentional violations of the law
will be discussed in detail in chapter 7.
In many ways, the legal exercise of prosecutorial discretion is more
troubling than some of the cases involving the intentional prosecu-
torial misconduct that courts have found to be illegal and impermis-
sible. Because these practices occur at a stage of the process that is
hidden from public view, they are difficult to address. If the public
were aware of the uneven exercise of power and discretion behind the
scenes, it might choose to hold prosecutors accountable through the
electoral process, but, as will be explained in chapter 9, this process has
proven to be largely ineffective.
Prosecutors become so accustomed to the arbitrary exercise of
their power and discretion at the charging stage that they, at best,
honestly believe they are making evenhanded decisions, and, at worst,
engage in willful blindness. When there is no effective system of public
accountability, it is difficult to engage in honest and meaningful self-
critique. It’s a lot easier to simply forgo prosecution in a case where the
victim is difficult to locate, inarticulate, and needy than to take the
time to address those needs. It’s harder to explain a decision to forgo
charges in a case involving a first-time offender to an obstinate victim
bent on prosecution than it is to go along with her wishes. Has willful
blindness become the norm?
Sometimes prosecutors engage in willful blindness at the charging
stage when it comes to police practices. When prosecutors review
cases, they have a responsibility to ensure that the police investigative
practices were lawful and constitutional. If the police engaged in an

illegal arrest or search or used illegal practices to extract a confession
from a suspect, prosecutors should reevaluate their desire to prose-
cute.32 Yet some prosecutors don’t even question police about these
issues. It’s easier to simply go forward with the prosecution than en-
gage in the thorny exercise of confronting the very police officers on
whom they rely to successfully prosecute their cases.
To what extent is the prosecutor liable for the behavior of a police
officer when she goes forward in a case where the officer has broken
the law? By engaging in a ‘‘don’t ask, don’t tell’’ policy, prosecutors
may claim ignorance if it is discovered that the police acted illegally.
Prosecutors should be held responsible for their failure to take affir-
mative steps to ensure that the evidence they sponsor in court is ob-
tained legally.
The Tulia, Texas, cases provide a stark example of willful blindness
gone awry.33 In 1999, a police officer named Tom Coleman arrested
forty-six individuals, thirty-nine of them African Americans, on al-
leged drug distribution charges in the tiny town of Tulia, Texas. Al-
though the arrests and subsequent convictions were based solely on
Coleman’s word with almost no corroborating evidence, the prose-
cutor, Terry McEachern, secured convictions in thirty-eight cases.
The defendants received lengthy sentences, some as long as ninety
years. In 2003, a judge overturned all of the convictions because
Coleman’s testimony was not credible. The governor signed thirty-
five executive pardons to free the wrongfully convicted residents of
Tulia, Texas.
It is difficult to fathom how McEachern secured convictions in
these cases. There was little to no physical evidence in any of the
cases—no wiretaps, videotape, fingerprints, or marked money, and no
other witnesses. When asked how he kept records of all of the alleged
undercover drug buys, Coleman claimed to have written the date,
time, and other information on his leg. Instead of questioning Coleman
about the lack of corroborating evidence and investigating the arrests
further, McEachern chose to march forward, knowing he would likely
secure convictions from an all-white jury, despite the weakness of the
cases.
The Tulia cases received widespread national attention, and the
injustices were ultimately corrected after many of the residents spent
years in prison. Tom Coleman has been prosecuted for perjury, and
McEachern was referred to the state bar disciplinary authorities for his
failure to provide exculpatory information to the defense. The bar
association found that he had violated a number of disciplinary rules
and suspended his bar license for two years.34
The Tulia cases raise important questions about the extent to
which willful blindness by prosecutors at the charging stage of the
process can result in serious injustices. If Tulia had not been exposed in
the national press, it is highly unlikely that McEachern would have
been referred to the state bar for misconduct.35 Some form of what
happened in Tulia has likely happened before, in Texas and elsewhere,
and likely continues to occur in prosecutor offices across the nation.
When prosecutors have no affirmative duty to ensure the credibility of
the evidence on which they rely to obtain convictions and are per-
mitted to turn a blind eye to clear warnings of wrongdoing, results like
those in Tulia should be expected.
Prosecutors can and should exercise their discretion at the charging
stage of the process to ensure that similarly situated victims and de-
fendants are treated evenhandedly and to ensure outcomes that are
consistent with the fair, effective, and efficient administration of jus-
tice. They should consider the principles of punishment, including
notions of rehabilitation and mercy, and they must also consider prac-
tical issues such as caseloads, resources, and particular, unpredictable
issues that may arise in individual cases. In chapter 10, I will discuss
specific approaches that prosecutors may use to reform the current
system. It is clear that continuing the same approach to prosecution
without consideration of broader notions of fairness will continue to
produce the same results—inequitable treatment of victims and defen-
dants in the criminal justice system.
THREE
Let’s Make a Deal: The Power

of the Plea Bargain
The term ‘‘plea bargaining’’ usually evokes negative reactions from

individuals who are not directly involved in the criminal justice sys-
tem. It conjures up images of lawyers cutting deals in back rooms and
criminals getting undeserved breaks. Despite the public’s general disap-
proval, plea bargaining is one of the most pervasive practices in the
criminal justice system. Almost all criminal cases are resolved with a
guilty plea by the defendant.1 Many believe that the entire system
would come to a crashing halt if the practice were abolished.
Plea bargaining is the term that describes the process of prosecutors
negotiating with criminal defendants to secure a guilty plea. Specifi-
cally, it consists of a bargain between the defendant and the prosecutor,
with the defendant agreeing to forgo his constitutional right to a trial
and plead guilty to one or more charges in exchange for one or more
promises by the prosecutor, usually a promise to dismiss other charges
and/or advocate for a favorable sentence. Like the charging decision,
plea bargaining is controlled entirely by the prosecutor. The defendant
may express a desire to plead guilty to certain charges in an indictment
but not others. However, if the prosecutor does not agree to dismiss
the other charges in exchange for the guilty plea, neither the defendant
nor the judge has the power to compel her to do so.
Both the prosecutor and the defendant reap benefits from plea
bargaining. Without it, prosecutors would be forced to conduct trials
in every case they prosecute. The defendant has a constitutional right
43
to a trial in every case, and the prosecutor has the burden of proving
every element of each offense beyond a reasonable doubt before a
judge or a jury.2 Trying cases is hard work and very time-consuming.
The prosecutor must subpoena the witnesses, prepare them to testify,
and prepare witness questions, the opening statement, and the closing
argument. Trials can be slow and protracted, with frequent interrup-
tions. Depending on the type of case, they can last days, weeks, or even
months. If prosecutors had to try every case they charged, they would
not have time to fulfill their other prosecutorial duties and responsi-
bilities. In addition, prosecutors may be reluctant to try a case where
they may not be able to prove the offenses beyond a reasonable doubt.
Thus, they have a strong incentive to offer plea bargains to defendants
that will encourage them to give up their right to trial.
Defendants also benefit from plea bargaining. The constitutional
rights to a trial and proof beyond a reasonable doubt are lofty, fun-
damental, and very important privileges that one should not readily
surrender. As significant as these rights are, however, it is frequently in
the defendant’s best interest to give them up and plead guilty. The
government’s burden of proof in a criminal case sounds like a heavy
one, but if there is strong evidence of guilt, the burden is easily met.
When the exercise of one’s constitutional rights will result in a long
prison term, these rights begin to sound a lot less attractive.
At first glance, plea bargaining appears to be a great deal for both
sides. The prosecution and the defense enter into an agreement with
each other to further their respective interests and goals. Ideally, they
come to the table on equal footing, with both sides experiencing some
losses and some gains. However, in reality, the prosecutor always has
the upper hand because of her control over the process. Does the
arbitrary exercise of discretion during the plea bargaining process
produce and perpetuate uneven results in the criminal process? This
chapter will attempt to shed light on this issue.
HOW THE PROCESS WORKS
Plea bargaining is usually a very informal process. It can occur at any

point after the charging decision has been made, or even before formal
charges are brought. However, prosecutors are not required to offer a
plea bargain in every case. As in the case of the charging decision, the
LET’S MAKE A DEAL 45
prosecutor decides whether to offer a plea bargain and what that offer
should be. She does not have to justify her decision to offer or decline a
plea bargain to the judge, defense attorney, or anyone other than
possibly the supervising prosecutor in her office.
In most cases, prosecutors make the plea bargaining decision early
in the process. At some point after the defendant is presented with a copy
of the charges, the prosecutor will let the defendant know whether
there is a plea offer and whether the defendant must accept the offer by
a certain date. The prosecutor may make a plea offer in open court
during a hearing or by communicating the offer to the defense attor-
ney outside of court. Typically, the judge will schedule a status hear-
ing at some point before the trial date, primarily for the purpose of
determining whether the defendant will plead guilty or exercise his
right to a trial. Frequently, the prosecutor will have communicated the
plea offer to the defendant before the status hearing. If the defendant
accepts the offer, he may plead guilty at the status hearing, and the
judge will either sentence him at that time or, in more serious cases,
schedule a sentencing hearing for a later date.3
Although most plea offers are made early in the process, they can
be made at any time, even during a trial or after a trial while the jury is
still deliberating. If the trial didn’t go as well as the prosecutor expected
and she fears that the defendant may be acquitted of all charges, she
may make a plea offer even at this late stage of the process. Because no
one can be certain of how a jury will decide a case, the defendant may
decide to play it safe and accept the offer.
Sometimes plea bargaining involves negotiating between the pros-
ecutor and the defense attorney, with offers, counter-offers, and dis-
cussion about the relative strengths and weaknesses of the prosecutor’s
case. This informal negotiation always occurs outside the courtroom.
The prosecutor will offer to dismiss one or more charges in exchange
for the defendant’s guilty plea to other charges. The defense attorney
may make a counter-offer that would produce a more favorable result
for her client. The prosecutor may not accept the counter-offer, but
may respond with an offer that is more attractive to the defendant than
her original offer. If the parties reach an agreement, they inform the
judge, and the guilty plea is entered at the next court hearing.
A typical burglary case illustrates the process. If the defendant
is arrested for breaking into a private home and stealing a number
of items, he may be charged with several offenses. They may include
first-degree burglary, first-degree theft, and destruction of property. If

the prosecutor decides to make a plea offer, she has total discretion to
decide what the offer should be. There are no laws or rules that dictate
or even guide her decision.4 A typical plea offer in such a case might be
a guilty plea to second-degree burglary (a less serious type of burglary
that carries a lighter penalty than first-degree burglary) in exchange for
the prosecutor’s agreement to dismiss the other charges. If the defen-
dant was not detained after his arrest, the prosecutor also might agree
not to oppose him staying in the community after his guilty plea,5 or
even to support a sentence of probation at the sentencing hearing.
A different plea offer in the same case might involve a more fa-
vorable result for the defendant than a plea to second-degree burglary.
For example, the prosecutor might offer a plea to attempted burglary,
which is a misdemeanor with a penalty of a year or less in jail. The
prosecutor might also offer a deal less attractive to the defendant—for
example, a plea to the first-degree burglary. Any of these offers might
be sweetened by the prosecutor’s agreement to support the defendant’s
release at the time of the plea or to support probation or a reduced
penalty at the sentencing hearing.
The defense attorney may always try to encourage the prosecu-
tor to offer a better deal for her client, and often she is successful,
depending on a variety of different factors. If the defense attorney has
investigated the facts of the case, she may discover weaknesses in the
government’s evidence. For example, she may discover that there are
eyewitnesses who failed to identify the defendant or that her client’s
fingerprints were not found on the scene. During plea negotiations,
the defense attorney might point out these weaknesses in an attempt
to broker a more favorable deal for her client. If the defendant has no
prior criminal record, this factor may also persuade the prosecutor to
reduce the stakes.
With so many options and no limits or guidelines, how does the
prosecutor make the decision? The answer is as simple as it is fright-
ening: any way she likes. Arbitrary decision-making is as likely in the
plea bargaining process as in the charging process. There are a number of
legitimate factors that prosecutors may consider in deciding whether
to plea bargain with the defendant. However, as with charging, there is
no requirement that they take these factors into account as they make
the plea bargaining decision. One of the most significant factors is the
prosecutor’s caseload. Most prosecutors have very heavy caseloads6
and must make plea offers in the majority of their cases because they
simply do not have the time and resources to go to trial in all of them.
Another factor is the victim’s interest in prosecution. As with the
charging decision, the prosecutor is not required to consult with the
victim, but the victim’s interest in participating in a trial, his availability
to appear for witness conferences before trial, and how well he per-
forms as a witness are all legitimate factors to consider in making the
plea bargaining decision.7 The defendant’s prior record is another im-
portant factor. A first offender is more likely to receive a more generous
plea offer than someone with a significant prior record.
There are also other factors that are not legitimate considerations
but often may be the most influential. For example, if the prosecutor
has a particularly good or bad relationship with the defense attorney,
that fact will undoubtedly affect the plea bargain. Plea negotiations
require give-and-take, which is unlikely if the parties don’t get along.
The media’s interest in a particular case is another factor that always
influences the prosecutor’s decision to plea bargain. If a particular case
has a high profile in the media, either because it involves a well-known
defendant or because it involves a particularly horrific crime, the pros-
ecutor may be less inclined to offer a plea. This decision may be based
on the prosecutor’s desire to appear ‘‘tough on crime’’ in cases the
media has exposed to the public. And although they are rarely con-
sciously or intentionally considered, the race and class of either the
victim or the defendant may subconsciously influence a prosecutor’s
plea bargaining decisions.8
Overriding issues that influence the entire process are the philos-
ophy and management style of the chief prosecutor. If the head of the
prosecutor’s office believes in long periods of imprisonment and is not
inclined to support alternatives to incarceration, she may establish plea
bargaining policies that limit the discretion of the prosecutors on her
staff.9 The chief prosecutor’s management style will also influence the
process, regardless of her philosophy of punishment. Even a chief pros-
ecutor who believes in alternatives to incarceration will affect the pro-
cess if she limits her staff ’s discretion by requiring prior approval of each
plea offer.
With so many charging options and legitimate and illegitimate
factors that may or may not be considered, it is no surprise that the plea
bargaining process tends to be unsystematic and arbitrary. Some pros-
ecution offices offer plea bargains more than others, and there are
disparities in application within offices, depending on the proclivities

of the chief prosecutor and the individual prosecutors on her staff. Some
of the disparities break down along race and class lines, and some do
not. The result is vagueness, inconsistency, and ultimately the inequi-
table treatment of defendants and victims, all of which create a sense of
unfairness in the criminal justice system.
The absence of transparency in the process compounds the public’s
lack of confidence in plea bargaining. Although courtrooms are open
to the public in adult criminal cases, it would be difficult to discover
the types of plea bargains prosecutors offer without sitting in criminal
courts every day. Even in the unlikely event the prosecutor’s con-
stituents had the interest and time to court-watch, they would not
have an effective basis for determining whether similarly situated de-
fendants and victims were treated equitably because so many of the
important factors in making this determination would not be revealed
in open court. Of course, the reality is that individuals do not have the
interest or time to court-watch, and there is no mechanism to provide
this information to the public. The public is informed about particular
cases only when members of the media decide to report them.
UNFAIR DEALS
Andrew Klepper
The media discovered and reported the arrest and prosecution of

Andrew Klepper, a white, middle-class young man who lived in a
Maryland suburb outside Washington, D.C., with his parents. His
father was a lawyer, and his mother was a high school guidance coun-
selor. Andrew attended a prestigious high school with a reputation for
high achievement among its students. When he was fifteen, Andrew
and two friends who attended the same school hired a prostitute,
invited her to Andrew’s home, and proceeded to brutally assault and
rob her. They struck her with a baseball bat, sodomized her with the
bat handle and a large ink marker, and robbed her of over $2,000.10
Andrew was charged as an adult with first-degree sex offense,
conspiracy to commit a first-degree sex offense, armed robbery, and
conspiracy to commit armed robbery. All of these charges carry a max-
imum penalty of life in prison in the state of Maryland.11 The evidence
against Andrew was overwhelming and included his own confession to

the crime.
Despite the horrific nature of the crimes, Andrew Klepper never
served a day in prison. The prosecutor offered him a deal that involved
his guilty plea to robbery, first-degree assault, and fourth-degree sexual
offense. The prosecutor also agreed to support a suspension of his
prison term and a five-year term of probation so that he could enroll in
a facility for troubled youth in Tennessee called Peninsula Village.
Peninsula Village treats severely troubled youth with six to eight weeks
in a locked admissions unit followed by intensive group therapy in an
outdoor setting. As part of the agreement, Klepper would spend an ad-
ditional eighteen months at Peninsula before enrolling in an unspec-
ified boarding school that specializes in treating troubled youth.
Klepper’s parents agreed to pay for the cost of the treatment. Ultimately,
the Tennessee authorities declined to supervise Klepper’s probation, so
the Maryland judge resentenced Klepper and placed him on unsuper-
vised probation so he could receive the rehabilitative treatment at the
Tennessee facility.
First offenders are frequently offered deals that result in a proba-
tionary sentence, but rarely if they commit very serious offenses, and
Klepper’s crimes were among the most serious. Furthermore, Klep-
per’s involvement in the offense was much more destructive than that
of his codefendants. According to the victim, he seemed to be the leader
of the group, and he performed the most heinous act—the sodomy
with the baseball bat and marker. Yet, ironically, he was the only one
of the three boys to avoid imprisonment. His nineteen-year-old less
culpable accomplice, Young Jiun Song, was not present during the
sexual assault and received a four-year sentence.12 Even the fourteen-
year-old accomplice, whose case was transferred to juvenile court, was
detained in a juvenile facility.
Did Klepper’s social status, wealth, and possibly his race influence
the prosecutor’s decision to offer him such a lenient plea bargain? It
certainly may be reasonable to provide rehabilitative services rather
than punishment for a juvenile first time offender.13 But if Andrew
Klepper was deserving of such help, then so are other young first
offenders charged with the same offenses.
The prosecutor might respond that he gave Klepper a break because
his parents found and paid for an alternative that provided rehabili-
tative services and that he would have given a similar break to other
similarly situated defendants, regardless of their race or socioeconomic

background, had they proposed to provide a similar appropriate al-
ternative. The prosecutor might further argue that it is not his role to
secure alternatives to incarceration for criminal defendants and that he
is not responsible for the inequities in society that divide people along
socioeconomic lines. Why should Andrew Klepper be denied reha-
bilitative treatment because others in his situation cannot afford it?
These arguments have some force, but they may not tell the whole
story. Could the prosecutor have agreed to the plea bargain because he
empathized with Andrew Klepper and his parents? Klepper’s parents
were well-educated professionals who hired a well-known criminal
defense attorney to represent their son. Klepper was a popular student
at one of the best high schools in the county. He was bound for college
and had a bright future. Could the prosecutor have looked at Andrew
and his parents and seen a life and family worth saving? Would the
prosecutor have offered the same deal to a poor, African American
male with no family support, no education, and no foreseeable future?
The reality is that the poor African American male would never be
able to afford such services, so prosecutors are rarely compelled to con-
front these issues.
The fact that few if any governmental entities provide free pro-
grams or services to treat defendants with problems and needs like
those of Andrew Klepper is an indication that legislatures do not
support such alternatives for individuals who commit crimes this se-
rious.14 The legislatures may be shortsighted or just plain wrong, but
should an individual like Klepper be allowed to buy his way out of
punishment with the assistance of the prosecutor while others who
may be just as deserving of help are sent to prison?
Erma Faye Stewart
Erma Faye Stewart’s case was much more typical. Ms. Stewart was a
poor African American woman with very limited education and even
less understanding of the criminal justice system. She was arrested on
November 2, 2000, in Hearne, Texas, for drug distribution on the
word of a confidential informant who later was proven to have lied.
She was held in jail on a $70,000 bond pending the outcome of her
case.
Stewart proclaimed her innocence steadfastly from the moment

she was arrested. Nonetheless, her court-appointed attorney urged her
to accept the prosecutor’s plea offer. He told her that if she did not take
the plea, she would be facing a ten-year prison term. When Stewart
told her lawyer that she couldn’t plead guilty to something she didn’t
do, he became impatient with her. According to Stewart,
He was, like, pushing me to take the probation. He wasn’t

on my side at all. He wasn’t trying to hear me. He wasn’t
trying to explain nothing to me. And I even had told him, you
know, ‘‘My understanding, you know, is not that good, so,
you know, you’re just going to have to really break it down to
me, for me to understand.’’15
Stewart’s lawyer told her that if she pled guilty, she would be released
and placed on probation. After almost a month in jail, she decided to
plead guilty to something she insisted she didn’t do.
Even though I wasn’t guilty, I was willing to plead guilty

because I had to go home to my kids. My son was sick. And
I asked him, ‘‘Listen, now, you know—you know, I can
plead for five-year probation. You know, just—just let me go
home to my kids.’’16
On the date of her guilty plea hearing, Stewart learned that the
prosecutor insisted on a ten-year period of probation. Desperate to go
home, she agreed and pled guilty. The judge imposed a fine and court
costs. Three years after the plea, Ms. Stewart was working as a cook
making $5.25 per hour. She was evicted from the housing project
where she and her children had lived, and they were put in foster care.
Because of her conviction, she was ineligible for food stamps or federal
aid to pursue an education. She won’t be able to vote until two years
after her ten-year period of probation has ended. Needless to say, she
was not able to pay the $1,000 fine or the court and probation costs.
Stewart was one of twenty-five people who were arrested on the
word of the same confidential informant. The first trial of one who
declined to plead guilty started on February 19, 2001. It was soon
revealed that the informant had lied, and within a few weeks, all of the
remaining cases were dismissed. Had Ms. Stewart not pled guilty, her
case would have been dismissed as well. The prosecutor offered no

assistance and expressed no regrets.17
Obviously, many people who plead guilty actually committed the
offense to which they admit guilt. But Erma Faye Stewart’s case il-
lustrates the pressures that many defendants feel when facing long
prison terms, especially when they are detained prior to their trials.
Unfortunately, most defendants have lawyers more like Stewart’s than
Klepper’s, without the time, resources, or desire to investigate the case
and mount a viable defense, and prosecutors who are more than
willing to offer a plea even when they are not confident that they can
prove guilt beyond a reasonable doubt. No one should plead guilty
under these circumstances, but it happens frequently.
PLEA BARGAINING WITH THE SNITCH
Another type of plea bargain involves the defendant promising to

cooperate with the prosecutor by providing information that will assist
in the prosecution of another defendant in exchange for a dismissal or
reduction of his own charges. Cooperation may take many forms, in-
cluding meeting with the prosecutor and providing information out-
side of court. It may also involve testifying under oath against another
defendant and providing evidence of that person’s guilt. The defen-
dant is commonly called an informant or ‘‘snitch’’ and frequently has
been involved in the crime along with the person he is testifying against.
The snitch is motivated to testify against his accomplice to avoid
conviction and imprisonment on all of the charges brought against
him. Sometimes the snitch has not been involved in the same crime,
but has access to information that is helpful to the prosecution’s case
and wishes to ‘‘trade’’ this information for assistance from the prose-
cution in getting a lighter sentence in his unrelated case. For example,
the snitch may be someone who has been imprisoned or detained with
the defendant and claims that he heard the defendant admit guilt to the
crime or make other inculpatory statements that would be helpful to
the prosecutor’s case.
As with other plea bargains, either side may initiate these deals. If
the potential snitch is a codefendant, the deal may depend on who is
lucky enough to contact the prosecutor and offer assistance first. This
factor has great importance in the federal system, where defendants
frequently face lengthy terms of incarceration. Sometimes, the pros-

ecutor may have more of an interest in one defendant than the other—
either because that person has a more serious criminal history or be-
cause his involvement in the crime was more serious than that of his
codefendants. Either of these factors may affect who initiates the ne-
gotiations and who ends up with the deal.
Does plea bargaining with snitches create more opportunities for
similarly situated defendants to be treated differently? The potential for
perjury is a troubling aspect of plea bargains that require testimony
under oath. A defendant may know or believe that he will get a better
deal from the prosecutor if he can provide information in the form of
testimony that will corroborate and strengthen the prosecutor’s case
against another defendant. This belief may entice him to fabricate
evidence such as a confession or other inculpatory statement. A de-
fendant who is incarcerated will commonly contact the prosecutor,
either directly or through his attorney, and claim that another de-
fendant admitted his involvement in a crime. The snitch may offer to
testify in exchange for some action on the part of the prosecutor that
will decrease his prison time. Of course, individuals sometimes do, in
fact, confess to others, but this type of evidence can easily be fabricated.
The prospect of getting out of prison sooner provides a strong moti-
vation to commit perjury.
There is a similar incentive and potential for perjury in cases in-
volving an individual testifying against his accomplice. In such cases,
the prosecutor presumably has independent evidence of each defen-
dant’s involvement in the crime, but sometimes detailed information
about each individual’s specific actions may be weak or nonexistent.
For example, if the police catch two masked armed robbers fleeing the
scene of the crime, the prosecutor may have enough evidence to
convict both of them, but because the perpetrators were masked, the
victim would not be able to identify which held the gun and which
acted as the lookout. Although each individual would be guilty of
armed robbery, the details about which individual played the domi-
nant role might be important to the prosecutor, who may want to offer
a deal to the one who was not in possession of the gun. She would be
especially prone to do this if she believes that person’s testimony would
strengthen her case.
The potential for perjury raises critical questions about the pros-
ecutor’s role in presenting the testimony of a snitch. No lawyer may
present the testimony of a witness she knows will commit perjury.

Such an act is called suborning perjury, and it is a criminal offense.18 Of
course, a prosecutor may legitimately claim that she doesn’t know the
witness is lying, unless she has credible evidence that totally contradicts
his testimony. Prosecutors are under no obligation to conduct thor-
ough investigations to ensure the veracity of each witness. Thus, they
may engage in willful blindness, presenting a witness who helps their
case without testing the truthfulness of his testimony.
At least one federal court attempted to put an end to the use of
accomplice testimony. In United States v. Singleton,19 the defendant
Sonya Singleton was convicted of conspiracy to distribute cocaine and
seven counts of money laundering. One of the witnesses who testified
against her, Napoleon Douglas, was originally charged as a cocon-
spirator. Douglas made a deal with the prosecutor that involved him
testifying against the defendant in exchange for the prosecutor’s prom-
ise to forgo further charges against him and to advocate on his behalf
at his sentencing hearing and with the parole board after his incarcer-
ation. Singleton appealed her conviction, alleging that the trial judge
should not have permitted Douglas’s testimony because it was in vi-
olation of section 201(c)(2) of title 18 of the United States code, which
prohibits giving, offering, or promising anything of value to a witness
for or because of his testimony. According to Singleton, the prosecutor
violated this statute by promising lenient treatment to Douglas in
exchange for his testimony.
A three-judge panel of the U.S. Court of Appeals, Tenth Circuit,
created a firestorm among federal prosecutors across the country when
it reversed Singleton’s conviction, holding that the prosecutor had
violated the federal statute when he made a deal with Douglas. Pros-
ecutors saw the court’s ruling as a threat to their successful prose-
cution of criminal cases by prohibiting one of their most common
practices. Although the ruling technically applied only in the Tenth
Circuit, it potentially created a precedent that other federal courts
might follow.
The opinion of the three-judge panel was not in effect long
enough to have any impact. Nine days after the opinion was issued, the
court ordered that the case be reheard by the entire court.20 It also
ordered that the opinion be vacated pending the rehearing. The full
court ultimately reversed the three-judge panel, maintaining the
practice of federal prosecutors using the testimony of informants.21
The court held that Congress did not intend for the statute to apply to
prosecutors and noted that the practice of offering leniency in ex-
change for testimony has deep roots in American legal history, dating
back to the common law in England.
The same three judges who wrote the panel opinion dissented
when the case was heard by the full court. According to the dissent:
Contrary to the concerns expressed by some commentators

and courts, see United States v. Ware, 161 F.3d 414 (6th Cir.
1998), a straight-forward interpretation of x 201(c), which
encompasses a prohibition against the government buying
witness testimony with leniency, actually aids the search for
truth. In theory, the leniency is only in exchange for ‘‘truth-
ful’’ testimony. See United States v. Haese, 162 F.3d 359, 366–67
(5th Cir.1998). But as the Supreme Court has recognized:
‘‘Common sense would suggest that [an accused accomplice]
often has a greater interest in lying in favor of the prosecu-
tion rather than against it, especially if he is still awaiting his
own trial or sentencing. To think that criminals will lie to
save their fellows but not to obtain favors from the prosecution
for themselves is indeed to clothe the criminal class with
more nobility than one might expect to find in the public at
large.’’ Washington v. Texas, 388 U.S. 14, 22–23, 87 S.Ct.
1920, 18 L.Ed.2d 1019 (1967).22
The dissent further points out that there are other ways prosecutors can
use accomplices to assist in the prosecution of cases that would not
involve the risk of perjury:
I accept the government’s position that accomplices can pro-

vide important information and interpreting x 201(c) to
include prosecutors might require some changes to elicit tes-
timony of some witnesses. While it would be up to the
Department of Justice to devise ways of compliance, the
government is not precluded from offering leniency in ex-
change for information and assistance short of actual testimony
at trial. Likewise, the government could prosecute accom-
plices first, then compel their testimony by subpoena against
co-conspirators. Finally, the government could request that
the district court order an accomplice to testify under a grant

of immunity. Surely the Department has the ability and re-
sources to come up with effective and lawful means for pro-
curing necessary accomplice testimony. However, I also ac-
cept the defense attorneys’ position that government leniency
in exchange for testimony can create a powerful incentive to
lie and derail the truth-seeking purpose of the criminal justice
system.23
PLEAS AND MANDATORY MINIMUM SENTENCES
Although the plea bargaining process always has provided prosecutors

with a great deal of control over the outcome of criminal cases, their
discretion and power is even more significant in cases involving man-
datory minimum sentencing laws. These laws require the sentencing
judge to impose a specific minimum term of incarceration for specified
offenses. Although there always have been some mandatory minimum
sentences, specifically for first-degree murder and other very serious
offenses,24 mandatory minimum sentencing laws were passed in large
numbers on the federal level, and in most states, beginning in the early
1980s.25
Mandatory minimum sentencing laws, along with sentencing
guidelines, were passed with an eye toward limiting judicial discretion.
However, these laws did not eliminate the discretion that produces
disparities in sentencing. Instead, prosecutors assumed exclusive con-
trol over the discretion that was once shared with judges. Race, class,
and other disparities continued, but now prosecutors retained the
lion’s share of the responsibility for these inequities. Prosecutors con-
trolled the outcome of criminal cases through their charging and plea
bargaining decisions even before the passage of mandatory minimum
sentencing laws. However, after these laws were passed, the balance of
power in the criminal justice system was tilted even more in favor of
prosecutors.
Because almost all criminal defendants ultimately plead guilty, the
charging and plea bargaining decisions of prosecutors essentially pre-
determine the outcome in criminal cases with mandatory minimum
sentences. These decisions certainly narrow the range of penalties in
cases without mandatory sentences, but when there is a required
minimum sentence, the judge has absolutely no discretion. Of course,

if the defendant decides to go to trial and is convicted, the result is the
same—the judge must impose a minimum predetermined period of
incarceration for each offense for which the defendant is convicted.
Mandatory minimum sentences not only have stripped judges of
sentencing power but also have driven defense attorneys to advise
clients to accept plea bargains that they may previously have advised
against. Ideally, the plea bargaining process involves negotiation be-
tween prosecutors and defense attorneys, with each side reaping some
benefits and suffering some losses. Although the prosecutor was always
at an advantage because of her control over the process and ability to
have the last word, defense attorneys would sometimes have a few
bargaining chips. For example, upon investigation of the case, they
might discover weaknesses in the government’s evidence that would
allow them to secure a better deal for their clients. Sometimes, the
investigation revealed evidence causing the client to decide to go to
trial rather than accept a plea offer. In the rare case, the prosecution
might even agree to dismiss the case. Mandatory minimum sentences
have produced a change in this more equitable plea bargaining process.
In cases involving mandatory minimum offenses, the stakes are
often too high for a defendant to exercise his constitutional right to
trial, regardless of the weakness of the prosecutor’s plea offer. Even if
he believes he has a good chance of being acquitted because of the
weakness of the government’s case or the strength of his own defense,
the defendant can never be sure of what the verdict of a judge or jury
will be. If the defendant is charged with several or many offenses and
the jury convicts him of all of the charges, he faces a term of incar-
ceration on each offense when he is sentenced. If the judge is per-
mitted to exercise discretion when imposing sentence, the defendant
at least has a chance of convincing the judge to show some leniency.
However, if the defendant is convicted of one or more offenses, each
of which requires a mandatory minimum term of incarceration, he
faces a definite, long prison term.
Prosecutors frequently impose expiration dates on plea offers that
make it impossible for defense attorneys to effectively counsel their
clients. For example, a defendant might face charges that carry a
minimum of fifteen mandatory years in prison. The prosecutor might
offer a deal that would result in five mandatory years, but may require
the defendant to accept the offer within forty-eight hours. If the offer
is made soon after the charges were filed, the defense attorney may not
have the opportunity to investigate the case. Although expiration dates
may be imposed in any plea offer, they have a particularly devastating
effect in cases involving mandatory minimum sentences.
Investigation is one of the most important responsibilities of the
defense attorney. If she does not investigate the case, she may not
discover weaknesses in the government’s case or other information
that might exonerate the defendant. But this investigation often takes
time—witnesses may be difficult to locate, and scientific or medical
evidence may need to be tested. A defendant may have a strong de-
fense, but his attorney may not make a timely discovery of the sup-
porting information. If the defendant is facing a minimum of fifteen
mandatory years in prison, an otherwise lengthy five-year period of
incarceration begins to look attractive. The always risky business of
going to trial becomes even more treacherous when the judge has no
discretion to show leniency at time of sentencing. Thus, defense at-
torneys are often in the uncomfortable position of advising clients to
consider plea offers without providing them with all of the informa-
tion they need to make an informed decision.
REFORMING THE PROCESS
Despite the inherent flaws in the process, plea bargaining is here to

stay. The criminal justice system would never be able to accommodate
trials in every case, nor is such an outcome necessarily desirable. De-
fendants who choose to accept responsibility for their criminal be-
havior should not be discouraged from doing so, as long as the decision
is made voluntarily and with the benefit of the advice of counsel.
Prosecutors should be willing to dismiss charges and support a reduced
sentence to ‘‘reward’’ defendants for their acceptance of responsibility
and for giving up their constitutional right to trial. However, the
process is in great need of reform.
The plea bargaining process would be greatly improved if prose-
cutors were required to provide all of the relevant information that
would enable the defendant to make an informed decision. The pros-
ecutor should reveal the weaknesses in her case and inform the de-
fendant of information that is helpful to the defense.26 Defendants
would undoubtedly continue to accept plea offers because of the risky
nature of jury trials. However, the provision of this information would

provide more fairness and balance to the process. Prosecutors also
should be required to corroborate the testimony of cooperating wit-
nesses to reduce the potential for perjury. These small but important
reforms would improve the overall quality of plea bargaining—a
practice that dominates and controls the criminal justice process.
FOUR
Prosecutors and the

Victims of Crime
The relationship between prosecutors and crime victims is compli-

cated and frequently misunderstood. It doesn’t fit neatly in the model
of our adversarial system—two parties, each represented by counsel,
battling before a neutral fact-finder to achieve their respective goals. In
fact, contrary to popular belief, the prosecutor does not represent the
victim—at least not in the way a lawyer represents a client. The pros-
ecutor does not have a client. Instead, she represents the state, which
consists of everyone who lives in the jurisdiction she serves, including
the defendant. For that reason, her role is complicated and involves the
balancing of conflicting goals. As the Supreme Court has noted, the
prosecutor’s role is to seek justice, not convictions.1
Crime victims have a tremendous impact on how prosecutors ex-
ercise discretion at the charging, plea bargaining, and sentencing stages
of the process. Likewise, the exercise of prosecutorial discretion has an
impact on victims and how they are treated throughout the process.
Do crime victims influence the exercise of prosecutorial discretion in
ways that produce unfair results for defendants? Does the exercise of
prosecutorial discretion lead to unjustifiable disparities in how victims
are treated in the criminal process? This chapter will explore these and
other questions about the relationship between prosecutors and crime
victims.
61
THE PROSECUTOR-VICTIM RELATIONSHIP
Prosecutors are not simply advocates for the state; they are also min-
isters of justice. In that sense, their role is very different from that of the
defense attorney, whose sole responsibility is to represent the interests
of her client. When a prosecutor brings criminal charges against an
individual and seeks to incarcerate that person, she is making a judg-
ment that these actions serve the interests of justice. The person who
breaks a criminal law presumably is causing harm and violating the
community’s moral standards. The prosecutor’s decision to charge and
seek incarceration of that person is a subjective judgment that such
actions will serve the purposes of protecting society and punishing the
defendant.
Not all crimes involve direct harm to individual people. For ex-
ample, possession of illegal drugs and driving under the influence of
alcohol are often referred to as ‘‘victimless crimes.’’ They each create
the potential for harm to others, but the actions that constitute these
crimes do not cause a specific, identifiable harm to another person. By
criminalizing these behaviors, society has made a judgment either that
they cause harm to society in general or that they are morally wrong
and therefore worthy of punishment, regardless of the harm they may
cause.
Of course, many crimes do cause direct harm to individual
people—for example, the person who is robbed or assaulted or whose
property is damaged or stolen. These victims of crime clearly have a
greater interest in these cases than members of the community
who were not directly harmed. They also play a crucial role in the
prosecutor’s case because they usually serve as witnesses if there is
a trial—either because they are able to identify the defendant and
testify about what they experienced or saw or because they are able
to provide information about property that was stolen or damaged.
The critical question is whether they should play a greater role in
the prosecution of a case than that of an ordinary witness whose
sole function is to provide evidence in support of the prosecutor’s
case. Should the prosecutor consult with the robbery victim before
making a plea offer to the defendant? Should the victim have the
right to veto a plea bargain or decide whether a case should be dis-
missed?
PROSECUTORS AND THE VICTIMS OF CRIME 63
As with most other prosecutorial issues, the role of the victim in

the prosecution of criminal cases varies widely from office to office and
even within individual offices. Some prosecutors consult with victims
before making plea offers, and some don’t. Some prosecutors consult
with some victims and not others. Some prosecutors will not make a
plea offer unless the victim ‘‘signs off ’’ on the deal. Other prosecutors
treat victims purely as witnesses and barely keep them informed of the
status of the case. One former prosecutor described her relationship
with crime victims as that of ‘‘a good parent’’ and sometimes ‘‘a benev-
olent dictator.’’2
A prosecutor’s relationship with a victim in a particular case often
depends on who the victim is. Although some prosecutors take great
interest in the victims of crime and treat them with dignity and respect,
others do not. Most prosecutors naturally feel more comfortable work-
ing with the victim who is cooperative, sympathetic, and interested in
the prosecution of the case than with the victim who is uncooperative
and difficult to reach. Class and cultural differences also play a role. The
prosecutor may find it easier to communicate with a victim who is
highly educated and articulate than with someone who has difficulty
expressing himself and may feel intimidated by the court system and its
procedures. The ‘‘squeaky wheel’’ theory operates in prosecution of-
fices as elsewhere—the cases of the victims who call and show up for
witness conferences and court appearances understandably will receive
more attention than the cases of those who don’t. Race and class issues
sometimes affect charging and plea bargaining decisions, resulting in
cases with poor victims and/or victims of color being prosecuted less
zealously than other cases, as discussed in chapter 2.
On the other hand, if the prosecutor is sympathetic and attentive to
a poor victim’s needs, that victim sometimes will become the most en-
thusiastic and cooperative supporter of the prosecutor’s case. One
former prosecutor noted that poor victims were often unemployed
and otherwise living dejected and difficult lives. They were often mo-
tivated to honor subpoenas to the grand jury and other court hearings
because they knew they would be paid witness fees. In addition, in se-
rious cases, the detectives would drive them to and from court and
provide the attention and concern that was otherwise frequently
missing from their lives. As this prosecutor put it, ‘‘Someone in the
system finally treats them with humanity.’’3
PROSECUTORS AND THE VICTIMS’

RIGHTS MOVEMENT
The victims’ rights movement evolved in the 1970s, primarily because

many crime victims believed that the criminal justice system did not
treat them with humanity, regardless of their race, class, or gender.
Initially focused on the poor treatment of victims of sex crimes and
domestic violence, the victims’ rights movement began to address the
concerns of all crime victims and ultimately was successful in its efforts
to secure legislation requiring compensation and support for victims.
The movement also has resulted in amendments to a number of state
constitutions that guarantee certain rights for victims, including the
right to be informed of, present at, and heard at critical stages of
the criminal process.4 The victims’ rights movement has been one of the
most successful political movements in recent history. According to
one author, ‘‘there has been a literal explosion of federal and state
action to increase crime victim access to and participation in the criminal
justice process.’’5
Victims’ rights advocates did not focus their criticisms of the crim-
inal justice system solely, or even primarily, on prosecutors. Initially,
the most vigorous criticism was aimed at police officers, because they
are the criminal justice officials whom most victims first encounter.
Rape and domestic violence victims voiced legitimate complaints about
the way police officers treated them, with complaints ranging from a
failure to arrest victims’ abusers to a lack of sensitivity to the trauma they
had endured. Many victims received no better treatment from prose-
cutors, who often chose to dismiss these cases for a variety of reasons,
including their belief that the victim would change her mind about
prosecution or that a jury would not convict.
The victims’ rights movement was responsible for a culture change
in the treatment of crime victims, especially among police officers and
prosecutors. The state legislation and constitutional amendments that
established and protected victims’ rights undoubtedly helped to inspire
this change. Although crime victims continue to have conflicts with
various criminal justice officials, there is a consensus that the improve-
ments have outweighed the problems.
Prosecutors generally have supported the victims’ rights move-
ment, and many have been active participants. Prosecutors have been
instrumental in the passage of many state constitutional amendments

and have supported the use of victim impact statements at sentencing
hearings. Prosecutors’ offices also have administered most compensa-
tional and support programs for victims.6
Not surprisingly, prosecutors do not hold uniform views on all
issues that concern crime victim advocates. Plea bargaining and charg-
ing decisions are two of the issues that cause considerable disagreement
between prosecutors and crime victims. Although some state laws re-
quire prosecutors to obtain victims’ input and/or notify them of plea
negotiations,7 there is no legal remedy for victims if the law is not
followed.8 Consequently, practices vary from office to office, and, of-
ten, prosecutors who do confer with victims on plea bargains are
inconsistent—notifying and conferring with victims in some cases but
not others. Victims are even less involved in the charging decision.
There are no laws or constitutional amendments that provide a right to
be heard regarding the charging decision, and there is much less pros-
ecutorial support for victim involvement at this stage of the process.9
WHEN INTERESTS CONFLICT
Although the prosecutor doesn’t serve as the victim’s lawyer, she usu-
ally represents the victim’s interests. Most victims want the perpetrator
of the crime to be convicted and punished, and the prosecutor almost
always shares these goals. Sometimes, however, the victim has different
or additional interests. For example, the victim may know the de-
fendant and may be interested only in restitution. Or maybe she wants
to see the defendant held accountable for his actions but doesn’t want
to go through the stress and inconvenience of a trial. In such cases, a
victim may support some type of plea bargain or even dismissal on the
condition that restitution is paid.
On the other hand, some victims appear almost fanatical in their
desire to punish the defendant, showing up for every court appearance
(even when their presence is not required) and demanding that the
prosecutor seek the harshest punishment. One former prosecutor in-
dicated that she was especially cautious when dealing with these cases,
particularly if the victim and the defendant knew each other or had
some type of prior relationship. ‘‘If the victim seemed too zealous, a
red flag would go up,’’ she noted, explaining that these victims some-
times had an axe to grind, or some other less than honorable reason for
seeking prosecution.10
Because the prosecutor always represents interests broader than
those of the individual victim, she should not be governed by the
victim’s desires in a particular case. Society’s broad interest in en-
forcing the law is always an important factor to consider. Other prac-
tical interests that affect the fair and effective administration of justice
also play a part. For example, even if the victim is insistent that the
prosecutor seek a long prison term for a particular defendant, the pros-
ecutor must make an independent judgment about whether such an
outcome serves the interests of justice, taking into account numerous
additional relevant factors. Such factors include the defendant’s crimi-
nal record and the particular facts and circumstances of the case. If the
victim believes that the defendant should not serve time, the prosecutor
should likewise make an independent assessment of whether probation
is fair considering all of the circumstances, regardless of the victim’s
desires. Thus, although the victim’s wishes should be considered, they
should not govern the prosecutor’s actions in a particular case. The
prosecutor must assess how much weight to give to the victim’s con-
cerns, and this assessment will vary, depending on the case.
Sometimes, the victim may seek an outcome that totally conflicts
with the prosecutor’s view of how the case should be prosecuted. If a
victim opposes the prosecutor’s approach to the case, she can be an
impediment to a successful prosecution. If a witness doesn’t show up
for witness conferences or court appearances, some prosecutors feel
compelled to dismiss the case. However, the prosecutor may compel
the victim to appear if the victim has been served with a lawful sub-
poena. In such cases, the prosecutor may request that the judge issue a
bench warrant to authorize law enforcement officers to arrest her and
bring her to court. Obviously, most prosecutors would like to avoid
going to these lengths if for no other reason than to avoid having to put
an angry, hostile witness on the stand. What should prosecutors do
when the interests of crime victims conflict with their own?
Ray Jefferson’s case illustrates the problems that can arise when a
victim actively opposes a prosecutor’s approach to a case. Jefferson was
charged with simple assault11 and possession of a prohibited weapon in
the District of Columbia.12 The weapon was a carpet sweeper. Jeffer-
son was charged under the section of the statute that made it a crime
to be in possession of any object when it is used as a weapon. The

government alleged that Jefferson had beaten his wife with the carpet
sweeper.13 I was appointed to represent Jefferson, and despite the fact
that the charges were simple misdemeanors, it was one of the most
troubling cases I handled in my twelve years as a public defender.
After I was assigned to the case, I proceeded to conduct an in-
vestigation of the facts, as I did in all of my cases. The first and most
important step in a defense investigation is to speak to the govern-
ment’s witnesses and attempt to secure a written statement from them.
In this case, the victim was the only witness to the crime. My inves-
tigator and I went to the Jefferson home to speak with her.14 When she
opened the door to her apartment, I was stunned. Mrs. Jefferson’s face
was badly bruised and swollen. One eye was swollen shut, and several
of her teeth were missing. She was holding an infant, and two young
children were on either side of her, holding onto the tattered housecoat
she was wearing. When I found my voice, I explained that I was her
husband’s lawyer and that I wanted to speak with her. To my surprise,
she invited me and my investigator to come in and have a seat.
Before I could ask her permission to take a written statement, Mrs.
Jefferson immediately told me that she didn’t want to proceed with the
prosecution. She said that she had been trying to reach the prosecutor
to tell her that she didn’t want charges brought against her husband.
She had not been able to contact her by phone, and the prosecutor had
not responded to her messages. I explained to her that I had no control
or influence over this decision, and she would have to work it out with
the prosecutor. She was not interested in talking about what her hus-
band was charged with doing to her, but she did want to give a written
statement indicating that she had no interest in prosecuting the case. I
took a short written statement from her that expressed her desire that
the case be dismissed. As I prepared to leave, she told me that she didn’t
see the point in sending her husband to jail. She needed him to keep
his job, so he could provide financial support for the family. She said
she didn’t think he would hit her again, but somehow I didn’t think
she really meant it. I thanked her for her time and told her I would give
the statement to the prosecutor.
When I showed the statement to the prosecutor, she was furious.
She told me that she didn’t care what Mrs. Jefferson wanted and that it
wasn’t up to Mrs. Jefferson to decide how the case was prosecuted.
The prosecutor went on to say that she had a duty to fight domestic
violence and that she was going to fulfill that duty, with or without
Mrs. Jefferson’s help.
I was as stunned by my meeting with the prosecutor as I was when
I met with the victim. Most surprising was the virulent anger that she
seemed to direct at the victim. The prosecutor seemed angrier with the
victim than with my client. It was as if the victim was ruining her case
and impeding her fight against domestic violence. Instead of viewing
the victim as a person who was badly hurt and in need of assistance
and compassion, the prosecutor seemed to view her as the enemy—
someone standing in the path of her battle against domestic violence.
There was a definite patronizing tone in her voice—a sense that this
poor woman was too ignorant to know what was good for her.
When I left the prosecutor’s office, I felt strangely conflicted. I felt
no less committed to my client and was determined to fight for his
interests and keep him out of jail. Nonetheless, I felt sorry for this
victim as well because the prosecutor was treating her badly and re-
fusing to consider her concerns. I also empathized with Mrs. Jefferson
because she was a poor African American woman, and I felt that the
prosecutor’s attitude toward her was condescending.
Mrs. Jefferson began to call me, continuously seeking my assis-
tance. At this point, I felt it necessary to clearly draw the line. I told her
that I was very sorry about her situation but that I had been assigned to
represent her husband, and if it appeared that I was in any way assisting
her in avoiding her responsibilities to appear in court, I could be charged
with obstruction of justice. I told her that there was a status hearing in
the case in a few days,15 and she was certainly free to come to the court
and speak with the prosecutor in person. I gave her the date of the
hearing, and she said that she would come.
Mrs. Jefferson showed up at the status hearing with her children in
tow. When Mr. Jefferson’s case was called, she came into the court-
room and sat in the audience. When the judge asked if there would be
a trial in the case, I decided to inform her of the victim’s presence in
the courtroom and of her lack of interest in prosecution. The prose-
cutor responded with her now characteristic anger. She informed the
judge that she had no plans to dismiss the case, that she planned to
deliver a subpoena to Mrs. Jefferson, and that if Mrs. Jefferson didn’t
show up, she would ask the court to issue a warrant for her arrest.
The judge sided with the prosecutor, using the occasion to inform
Mrs. Jefferson that she would grant the prosecutor’s request for a
warrant if she didn’t appear on the trial date.
Although Mrs. Jefferson was not the prosecutor’s client, the pros-
ecutor certainly should have considered Mrs. Jefferson’s concerns in
her assessment of how to handle the case. Instead, she chose to totally
ignore Mrs. Jefferson’s attempts to explain her situation and ultimately
threatened to seek her incarceration if she failed to appear on the trial
date. Had the prosecutor taken the time to speak with Mrs. Jefferson,
she might have been able to persuade her to pursue the prosecution.
At a minimum, she might have come to some understanding of
Mrs. Jefferson’s concerns.
Ultimately, I persuaded the prosecutor to agree to a postponement
of the case while Mr. Jefferson completed a program of rehabilitative
therapy for batterers. After his successful completion of the program,
she ultimately agreed to dismiss the case. Her decision undoubtedly
was influenced by the prospect of trying to secure a conviction with a
hostile and uncooperative victim.
Domestic violence cases epitomize the complexities of prosecutor-
victim conflicts. There is a long and troubling history of law enforce-
ment officers—police and prosecutors—failing to protect women who
have been assaulted by their husbands or partners. As a result, some
jurisdictions responded by passing laws or establishing policies that
require arrest and prosecution in these cases, regardless of the prefer-
ence of the victim. The laws and policies were designed to protect
women from further abuse and to address situations in which women
were requesting that cases be dismissed as a result of threats from their
husbands and partners. These so-called no-drop laws and policies may
serve an important function but sometimes result in the victims being
treated like Mrs. Jefferson—ignored and disrespected throughout the
process.16
The case of Ricky Joseph Langley illustrates the problem of
prosecutor-victim conflict in a different context. Langley was charged
with capital murder in the state of Louisiana for the murder of a six-
year-old child. He was convicted in 1994, but his conviction was
reversed, and he was granted a new trial. The second trial was not held
until 2003. The district attorney, Rick Bryant, zealously pursued the
death penalty again, despite the fact that the victim’s mother, Lorilei
Guillory, asked the prosecutor to agree to a guilty plea that would have
required a mandatory prison sentence of life without the possibility of

parole.
Guillory was clear that she had not forgiven Langley for the brutal
murder of her son but noted that she didn’t need him put to death to
heal. She also stated that she wanted to avoid the stress and pain of
going though another capital murder trial. She stated that she wanted
the district attorney to accept the plea agreement to life in prison with-
out parole but the district attorney declined Guillory’s request.17
The district attorney certainly did not have to abide by the wishes
of the victim’s mother. Although it was his duty to consider her views,
it was his responsibility to make this important decision independently,
on the basis of all of the relevant factors. Bryant’s behavior was note-
worthy, however, in the same way as that of the prosecutor in the
Jefferson case. He treated Guillory as the enemy and was vocally and
publicly hostile to her. He even blamed her, in part, for the jury’s
verdict of second-degree murder—a verdict that does not permit the
death penalty and requires the sentence that Mrs. Guillory had asked
Bryant to accept. In a press conference, Bryant said, ‘‘[Lorilei Guillory]
was against everything that we were trying to do to the point of try-
ing to help Ricky Langley be found not guilty by reason of insanity,
and we had a real problem with that.’’18 Guillory expressed her belief
that the prosecutor had made her life more difficult since the death of
her son.
Prosecutors should neither ignore nor cater to the interests or
desires of victims of crime. Victims are human beings who have suf-
fered a direct harm as a result of criminal behavior. They deserve
compassion and, if possible, restitution. They do have a greater interest
in the case than the entire community that the prosecutor serves, and
their interests and desires should be given greater consideration. How-
ever, victims’ interests and concerns are but one set of factors among
many that prosecutors must consider in making decisions about how to
prosecute a case.19 If the prosecutor has determined that the defendant
poses a danger to society because of the seriousness of the offense and
the defendant’s prior record, it would be reasonable for him to go
forward with the prosecution, even if the victim indicates that she
wants the case dismissed. But if the defendant would not pose a danger,
and the victim is not interested in prosecution, a dismissal might be a
reasonable result. On the other hand, if a victim is insistent that the
defendant should be punished to the full extent of the law, but the
prosecutor believes that a plea offer to a misdemeanor is appropriate,

either because the case is weak or because the defendant does not
have a prior record, he should offer the plea, regardless of the victim’s
wishes. Common sense and a careful weighing of all of the rele-
vant considerations should govern the prosecutor’s decision-making
process.
RACE, CLASS, AND THE ‘‘WORTHY’’ VICTIM
The subtle complexities of race and class frequently affect impor-

tant prosecutorial decisions. Cases with articulate, cooperative, well-
educated victims will more likely go to trial than cases with witnesses
who don’t show up for witness conferences, don’t express themselves
well, or have a criminal record that would be revealed to the jury
during their testimony. Although these judgments appear to have a
class or racial effect, one can point to legitimate race- and class-neutral
reasons for them. It is reasonable for a prosecutor to take into account
the victim’s willingness to show up and jury appeal in her assessment of
the likelihood of obtaining a conviction in a particular case.
However, do prosecutors treat some cases as more important
solely because the victim is a more prominent or important person—
someone more ‘‘worthy’’ of a vigorous prosecution than other crime
victims? Do class and/or race sometimes coincide with ‘‘worthiness?’’
The case of James Robinson raises these issues. Robinson was charged
with felony murder in the District of Columbia in 1991. He was
accused of robbing an individual at gunpoint and killing him during
the course of the robbery. Unfortunately for Robinson, his victim
happened to be a young, white college student from Nebraska who
was a summer intern in the District of Columbia. Felony murder is one
of the most serious forms of homicide and is charged as first-degree
murder, but there was nothing noteworthy or more heinous about
this felony murder than any other. The only remarkable detail about
the case was the fact that the victim was a young white man from the
Midwest. At that time, the vast majority of murder victims in the
District of Columbia were African American.
From the beginning, it was clear that this case would receive spe-
cial attention from the prosecutor’s office. There was attention from
the press, and prosecutors always behaved differently in cases the
press followed for at least one obvious reason—the public would be

watching. The prosecutor’s behavior also was affected by the fact that
the victim had a prominent and assertive advocate—a congressman
from his state, whom the victim’s family had contacted after the mur-
der. The congressman appeared at many court hearings in the case, no
matter how routine. He was often joined by a Nebraska newsman who
was assigned to his paper’s Washington bureau. The congressman
attended the initial bond hearing and appeared on the local news later
that night. He later showed up for status hearings—the routine hearings
where mundane issues like schedules for filing motions, evidentiary
and other legal issues, and trial dates are discussed. He was not per-
mitted to speak or otherwise participate in the hearings, but everyone
knew who he was and noticed his presence. The prosecutor was often
seen chatting with him before and after court hearings, so it was clear
that the prosecutor was, at a minimum, listening to his views.
I was the director of PDS at that time, and our office was appointed
to handle the case. As was typical with cases of this magnitude, this one
was handled by an experienced trial lawyer and cocounseled by a
junior lawyer whose role was to assist with the defense under super-
vision. It was clear that there would be no plea offer and that the case
would be going to trial.
Almost one year after Robinson’s arrest, the trial began. Robinson
was represented by Tony Morris, one of the most experienced senior
attorneys in our office. His junior co-counsel was Sara McCarthy. One
of the government’s witnesses was a former codefendant who had ne-
gotiated a deal to testify against Robinson. During this witness’s direct
testimony, he revealed that he had been involved in other criminal
activity with the defendant. This testimony drew an immediate ob-
jection and a request by the defense for a mistrial. The court agreed
that the witness’s testimony was unduly prejudicial and granted the
mistrial.
The trial court directed the parties to return to court on the fol-
lowing Monday to select a new jury and begin a new trial. The next
morning the Washington Post prominently reported that a mistrial had
been declared in the trial of James Robinson after a government wit-
ness revealed prejudicial information. The defense, already concerned
about the amount of news coverage generated by the case, was alarmed
about the most recent reports and the obvious impact such reporting
would have on the ability to select a fair and impartial jury. Morris was
prepared to raise this concern with the judge prior to jury selection on
Monday morning. The defense request would be to postpone the trial.
Recognizing that a continuance was unlikely, Morris was prepared to
accept, if the prosecutor and the court would agree, a less suitable
alternative—a more comprehensive questioning of potential jurors
than is normally available to the parties. Before any such request was
made by the defense, however, the prosecutor indicated that her
cousin had died over the weekend and that she would be requesting a
continuance. Morris did not object, and the judge granted the con-
tinuance.
Several months later, the trial began. In the early morning on the
fifth day of the trial, I received a distressing phone call. Tony Morris
had suffered a stroke and had been admitted to the intensive care unit
of a local hospital. I was stunned and heartbroken. Tony Morris was
one of the best and most well-liked attorneys in the office. I was very
worried about his condition but knew that it was my responsibility to
report the unfortunate news to the court and move for a mistrial. In his
condition, there was no chance that Tony would recuperate in time to
resume the trial.
I decided to go to court in my capacity as the agency’s director to
inform Robinson, the judge, and the prosecutor and to make what I
thought would be a routine and unopposed motion for a mistrial.20 I
was in no way prepared for what occurred. After I went to the holding
cell to inform Robinson of his attorney’s illness, I decided to tell the
prosecutor what had happened and inform her of my intention to seek
a mistrial. The prosecutor, an African American woman I had known
for some time, expressed concern for Tony’s well-being. The judge
entered the courtroom, and I approached counsel table as Robinson
was brought out from the holding cell. I informed the court of the
situation and moved for a mistrial. The judge turned to the prosecutor
to ask if she opposed the motion. To my surprise, she did.
First, the prosecutor announced that a mistrial, which would entail
aborting the trial, dismissing the jury, and rescheduling the trial to
begin anew on a date some time in the future, would be far too in-
convenient for the victim’s family. They had traveled to Washington
to attend the trial and were anxious to see the case resolved. The
prosecutor suggested that we recess the trial for a few days to see
if Morris would be able to resume his representation of Robinson.
When I explained that Mr. Morris had suffered a serious stroke, was in
intensive care, and was not expected to return to work for six to eight
weeks at the earliest, the prosecutor began to question my represen-
tations. ‘‘Can he talk? Can he walk?’’ she asked. I was stunned and
overcome with anger. Morris was barely holding on to life in a hospital
bed, but the prosecutor showed no sensitivity or concern about his
condition. I had asked for nothing more than what the same prose-
cutor had asked for and received when she had a death in her family. It
was not as if I was asking for the case to be dismissed; a mistrial would
involve dismissing the jury and rescheduling the trial for a later date.
Nonetheless, the prosecutor opposed my request. She obviously was
more concerned about inconveniencing her witnesses and the victim’s
family than about the life of someone who was critically ill or a fair trial
for the defendant.
To my surprise and dismay, the judge did not grant my motion for
a mistrial. Instead, he suggested that Sara McCarthy, the junior co-
counsel in the case, continue and finish the trial on her own. I informed
the judge that his suggestion was not a feasible option. McCarthy only
had two years of experience as a lawyer and had never tried a case
before a jury on her own. I reminded the judge of our office’s policy of
pairing inexperienced lawyers with senior attorneys, primarily as a
learning tool for the junior lawyer. The judge, who was a former PDS
attorney, was well aware of the policy but didn’t seem to care. His
second suggestion was equally untenable. He decided to appoint an-
other senior attorney to the case, postpone the trial for a few days while
the lawyer prepared and read the transcript of the first few days of the
trial, and resume the trial with the new lawyer and McCarthy. Over
my vehement objections, the trial proceeded with a new unprepared
lawyer entering the trial midstream. Robinson was convicted of all
counts. One of the grounds of his appeal was the judge’s decision to
proceed with the trial in the absence of his counsel of record. The
appeal was denied.
I believed that the prosecutor’s decision to oppose my motion for a
mistrial was motivated by the status and influence of the victim’s
family. That year, there were a total of 443 homicides in the District of
Columbia.21 Almost all of the victims were young black men. All of
these victims had families who loved and cared about them. Many
of them had been killed under circumstances even more brutal and
heinous than those of Robinson’s case, yet it appeared that this case
was prosecuted far more zealously than any other homicide that year.
Mistrials were granted in cases every day for reasons far less serious than
the critical illness of the defense attorney. I had seen mistrials declared
when one of the lawyers (either the prosecutor or the defense attorney)
had the flu, a migraine, or just wasn’t feeling well. It never occurred to
me that the prosecutor would oppose a mistrial in this case, but it was
quite clear to me why she did.
There are countless examples in the media of special treatment and
empathy for certain victims of crime. We hear about these cases be-
cause members of the media choose them as worthy news stories, using
their criteria for what will sell newspapers and attract an audience. They
always report cases involving celebrities and other public figures as
either defendants or victims. But what about the other cases that news
outlets choose to report? If the case involves unusual or sensational
facts, there is an obvious interest in reporting it—the Columbine
school shooting or the woman who found and recognized her daughter
ten years after she had been kidnapped as an infant, for example. But
not all of these cases involve unusual facts.
Very few people have never heard of JonBenet Ramsey. She was
murdered in her home in 1995, and her killer was never found. Jon-
Benet was a cute, blond, six-year-old whose picture was on the cover
of every major magazine for months. Every news outlet constantly
reported the story of her death. She was not a celebrity, nor did the
public know her parents before her death. Her death, although horrible
and tragic, was not unusual,22 yet the search for JonBenet’s killer was
the number one story in the media for quite some time. Despite the
passage of time, occasional stories on the JonBenet Ramsey investi-
gation continue to be featured in the news.
Elizabeth Smart is another previously unknown crime victim whose
name and face are now recognized in most households across the nation.
Elizabeth was kidnapped from her home in Salt Lake City, Utah, in June
2002. She was missing for nine months, and not a day passed when her
face and the story of her kidnapping were not featured on the news,
usually as one of the top stories. Like JonBenet Ramsey, Elizabeth Smart
was blond, beautiful, and the child of wealthy parents. Pictures and videos
of her riding a horse and playing her harp were frequently shown on
the news. Her parents appeared on almost every major television news
and talk show, tearfully pleading for the nation’s help in finding their
daughter’s kidnapper. Fortunately, Elizabeth was rescued nine months
later and returned to the safety of her parents’ home.
There is no doubt that the media’s decision to focus on certain

cases moves them to the top of the prosecutor’s priority list. What is
unclear is what comes first—the media attention or the prosecutor’s
interest in the case. Does the media begin to focus on a case that law
enforcement and prosecutors bring to their attention, or do prosecu-
tors focus on a case when they know the media is informing the
public? Either way, prosecutors give these cases more attention than
others for reasons that cannot be justified. These cases are not more
serious than other cases involving the same type of crime, nor are the
victims or their families necessarily any more cooperative or interested
in bringing the perpetrator of the crime to justice. These victims are
simply more sympathetic because they are attractive, and they and
their families present a more appealing image than the child of a poor,
single mother who isn’t shown in videos doing interesting things like
singing in a pageant or playing an instrument.
There is no question that the cases involving JonBenet Ramsey
and Elizabeth Smart deserved the attention they received, but so does
every case involving a child or any other victim of crime, for that mat-
ter. Prosecutors certainly cannot control the actions of members of
the media, but they don’t have to follow them. Prosecutors should not
ignore these cases, but they should take affirmative steps to assure that
they are not prosecuting certain cases more vigorously simply because
of the status of the victim.
In sum, prosecutors should certainly support crime victims, consult
with them, and consider their views when making prosecutorial de-
cisions. However, prosecutors should never assume the role of the
victim’s attorney. They represent the state, not the individual victim.
Their goals are much broader than those of the victim and may some-
times even conflict with the victim’s wishes. Prosecutors should work
hard to make sure that they are not unduly influenced by media at-
tention, politics, or other factors that may not be consistent with the
fair administration of justice. They should consider a broad range of
legitimate factors when making important decisions in criminal cases,
including the safety of the community, fairness to the defendant, the
allocation of resources in the criminal justice system, and the interests
of the victim.
FIVE
Prosecutors and the Death Penalty
No issue makes the case for restraining prosecutorial power more

forcefully than the death penalty. As with just about every other
critical issue in the criminal process, prosecutors exercise a great deal
of control over the death penalty, especially the decision to seek the
death penalty in particular cases. However, unlike other important
criminal justice issues, the death penalty is final and irreversible. If a
mistake is made, the unthinkable could happen—an innocent person
could be executed. Since 1973, over one hundred innocent peo-
ple have been freed from death row,1 suggesting that innocent peo-
ple probably have been executed.2 Although execution of the inno-
cent is perhaps the greatest flaw of the death penalty, there are many
others, leading former Supreme Court Justice Harry Blackmun to
conclude:
From this day forward, I no longer shall tinker with the ma-
chinery of death. For more than 20 years I have endeavored—
indeed, I have struggled—along with a majority of this Court,
to develop procedural and substantive rules that would lend
more than the mere appearance of fairness to the death pen-
alty endeavor. Rather than continue to coddle the Court’s
delusion that the desired level of fairness has been achieved and
the need for regulation eviscerated, I feel morally and intel-
lectually obligated simply to concede that the death penalty
experiment has failed.3
77
Despite Justice Blackmun’s grim conclusions, prosecutors—the most

powerful and least accountable of all criminal justice officials—continue
to make the decisions that set the machinery of death in motion.
The death penalty is probably the most controversial issue in the
American criminal justice system. The Supreme Court has addressed
the constitutionality of the death penalty in a variety of contexts and
has reversed itself on controversial issues such as the execution of
juveniles and the mentally retarded.4 Frequently the votes have been
close, demonstrating deep divisions on the Court. Recent discoveries
of innocent people on death row and reports documenting racial
disparities in the implementation of the death penalty have energized
movements to abolish the death penalty or at least declare a morato-
rium on its implementation. Despite its problems and flaws, thirty-
eight states authorize the use of the death penalty for murder in a
variety of circumstances.5 The federal government permits the death
penalty for many types of murder and for treason, espionage, and
even for certain narcotics offenses.6 The United States maintains its
status as the only country in the Western world to use death as a legal
punishment.7
HOW PROSECUTORS CONTROL

THE DEATH PENALTY
There would be no death penalty without prosecutors, because only

prosecutors may decide whether or not to seek the death penalty in a
particular case. Neither judges nor jurors, nor any other individual or
body, may initiate the process. Although a jury must make the ultimate
execution decision, prosecutors, through their charging decisions, de-
cide which cases will be tried as capital offenses. By making the initial
death penalty charging decision, prosecutors present juries with an
option they otherwise would not be able to consider. Thus, the im-
portance of this initial decision cannot be overstated.
Although the federal government and several states permit the death
penalty in cases that do not involve homicide,8 it is sought most
frequently in murder cases. Prosecutors may not seek the death penalty
in every murder case. The death penalty statutes of each state restrict
capital cases to murders involving certain specified circumstances but
do not require that every case that fits within these circumstances be
PROSECUTORS AND THE DEATH PENALTY 79
charged as a capital case. In fact, the Supreme Court has held that
statutes that mandate the death penalty are unconstitutional.9 Thus,
prosecutors maintain broad discretion to decide which of the many
cases that fall within the parameters of the statute will be charged as
capital cases.
Most death penalty statutes list a number of circumstances, called
‘‘aggravating circumstances,’’ that permit a prosecutor to charge a de-
fendant with capital murder.10 Presumably these are the most serious
and heinous murders and are so much worse than others that they
warrant the ultimate punishment. The Maryland statute lists the fol-
lowing aggravating circumstances, which are typical of most death
penalty statutes:
(i) one or more persons committed the murder of a law

enforcement officer while the officer was performing
the officer’s duties;
(ii) the defendant committed the murder while confined
in a correctional facility;
(iii) the defendant committed the murder in furtherance of
an escape from, an attempt to escape from, or an at-
tempt to evade lawful arrest, custody, or detention by:
1. a guard or officer of a correctional facility; or
2. a law enforcement officer;
(iv) the victim was taken or attempted to be taken in the
course of an abduction, kidnapping, or an attempt to
abduct or kidnap;
(v) the victim was a child abducted in violation of x 3-
503(a)(1) of this article;
(vi) the defendant committed the murder under an agree-
ment or contract for remuneration or promise of re-
muneration to commit the murder;
(vii) the defendant employed or engaged another to commit
the murder and the murder was committed under an
agreement or contract for remuneration or promise of
remuneration;
(viii) the defendant committed the murder while under a
sentence of death or imprisonment for life;
(ix) the defendant committed more than one murder in
the first degree arising out of the same incident; or
(x) the defendant committed the murder while commit-

ting, or attempting to commit:
1. arson in the first degree;
2. carjacking or armed carjacking;
3. rape in the first degree;
4. robbery under x 3-402 or x 3-403 of this article; or
5. sexual offense in the first degree.11
As this list demonstrates, there are many different types of murders

for which a defendant may face the death penalty. Most prosecutors
rarely seek the death penalty because of the time and expense involved
in trying these cases and because most prosecutors maintain that the
death penalty should be reserved for the very worst, most egregious
murders.12 However, since so many murders fall within the list of death
eligible cases, prosecutors maintain immense discretion to choose who
faces death at the hands of the state.
Federal and some state prosecutors make the death penalty decision
with much more care and precision than other charging decisions. Al-
though the chief prosecutor always makes the final decision, in some
state prosecution offices, there is a formal process involving a number
of senior prosecutors. These prosecutors meet and discuss whether the
case under consideration should be brought as a capital offense. They
consider numerous factors, including the facts of the case, the defen-
dant’s prior criminal record, and the views of the victim’s family.13
Federal prosecutors must follow the formal procedures set forth
in the criminal resource manual of the U.S. attorney’s manual before
charging a capital offense.14 The attorney general makes the final de-
cision, after a formal review process involving consultation with the
Capital Case Unit of the Criminal Division of the Justice Department.
This formal review process involves the submission of a death penalty
evaluation form and formal memorandum outlining the facts and
circumstances of the case and any other relevant information. Defense
counsel may submit a written or oral presentation on why the attorney
general should not pursue the death penalty. The review process also
requires consideration of the views of the victim’s family.
Although some prosecution offices have review and evaluation
procedures, these procedures do little to guide the discretion prose-
cutors exercise during the process and provide no external account-
ability for the choices they ultimately make. Not all prosecutors in
death penalty states use these procedures, but even among those that
do, the procedures only provide for the consideration of various fac-
tors, leaving the prosecutors free to evaluate and interpret them as they
see fit. Although the procedures may make the process seem less ar-
bitrary, it is unclear whether they do much to control the subjective
and sometimes subconscious judgments that influence these critical
decisions.
PROSECUTORS, RACE, AND THE DEATH PENALTY
Much has been written about racial disparities in the implementation

of the death penalty. African Americans, who are only 12 percent of
the population, were 34 percent of the total number of persons exe-
cuted as of December 14, 2005.15 However, the race of the victim
reveals the starkest disparity in how the death penalty is implemented.
As of December 14, 2005, 80 percent of the victims in death penalty
cases were white, while only 14 percent were black.16 Of the nu-
merous studies that have examined racial disparities in how the death
penalty is implemented, the most consistent theme has been the dis-
proportionately high number of death penalty cases with white vic-
tims, regardless of the race of the defendant.17 According to a 1990
study by the General Accounting Office, in cases involving interracial
murders, the death penalty was sought far more frequently in cases
involving black defendants and white victims. The same study found
very few death penalty cases involving white defendants and black
victims.18
These startling racial disparities can be attributed, in large part, to
death penalty charging decisions by prosecutors. Although the jury
ultimately decides whether the death penalty should be imposed, some
studies demonstrate that the prosecutor’s pretrial charging decision
often has already narrowed the number of death penalty cases to a pool
consisting disproportionately of cases with white victims. For example,
one study that examined murder cases in Kentucky between 1976 and
1986 concluded that prosecutors were heavily influenced by the race
of the victim and defendant when making the death penalty deci-
sion.19 Another study of New Jersey murder cases in the mid-1980s
found similar results and concluded that prosecutors were much more
likely to seek the death penalty in cases involving white victims.20
Race of Defendants Race of Victims
Black Black
Hispanic Hispanic
White White
Other Other
Race of Death Row Inmates
White Defendant/Black Victim (12) Black
Hispanic
Black Defendant/White Victim (208) White
Other
Figure 5.1. Racial Statistics of Executions and Death Row in the United States.
Source: Death Penalty Information Center (DPIC), www.deathpenaltyinfo.org.
The most well-known statistical analysis of racial disparity in the

implementation of the death penalty was conducted by Professor
David Baldus of the University of Iowa Law School. Known as the
Baldus study, this analysis examined the implementation of the death
penalty in the state of Georgia during the 1970s through an evaluation
of over two thousand murder cases. Professor Baldus found that de-
fendants charged with killing white persons received the death penalty
in 11 percent of these cases, but defendants charged with killing blacks
received the death penalty in only 1 percent of the cases. Baldus also
divided the cases according to the race of the defendant and the race of
the victim. He found that the defendants received the death penalty in
22 percent of the cases involving black defendants and white victims; 8
percent of the cases involving white defendants and white victims; 1
percent of the cases involving black defendants and black victims; and
3 percent of the cases involving white defendants and black victims.21
Professor Baldus’s study demonstrated the significance of the pros-
ecutor’s role in these disparities. Baldus found that prosecutors sought the
death penalty in 70 percent of the cases involving black defendants and
white victims; 32 percent of the cases involving white defendants

and white victims; 15 percent of the cases involving black defendants and
black victims; and 19 percent of the cases involving white defendants and
black victims.22
The Baldus study was presented as evidence in a case that was
ultimately appealed to the Supreme Court and resulted in one of the
Court’s most well-known and controversial death penalty decisions—
McCleskey v. Kemp.23 Warren McCleskey was a black man who was
convicted of the armed robbery and murder of a white police officer in
the state of Georgia in 1978. The prosecutor sought the death penalty,
and the jury sentenced McCleskey to death. During one of his post-
conviction appeals in federal district court, McCleskey claimed that
the death penalty was administered in a racially discriminatory manner
and presented the Baldus study as evidence in support of his claim.
McCleskey’s claim was rejected, as were his appeals to the U.S. Court
of Appeals and the Supreme Court. Interestingly, the Supreme Court
accepted the validity of the Baldus study but held that there was no
constitutional violation. According to the Court, McCleskey was not
entitled to relief because he did not prove that the decision-makers in
his case intended to discriminate against him because of his race.
In McCleskey, the Court discussed prosecutorial discretion in the
death penalty context. The majority opinion sanctioned the unbridled
discretion that permits prosecutors to make decisions that discrimi-
nate on the basis of race. According to Justice Powell, writing for the
majority, ‘‘[p]rosecutorial decisions necessarily involve both judg-
mental and factual decisions that vary from case to case.’’24 The dis-
senting opinions, on the other hand, soundly criticized the exercise of
prosecutorial discretion in the implementation of the death penalty.
Justice Brennan’s dissent noted that the absence of guidelines gov-
erning the prosecutor’s decision to seek the death penalty provided
substantial opportunity for racial considerations, even if subtle or
unconscious, to influence the charging decision.25
Justice Blackmun wrote a separate dissent, which focused on the
prosecutor’s role in the process to an even greater degree. He noted
that the prosecutor is the primary decision-maker at each stage of the
death penalty process and analyzed the evidence of abuse of discretion
by the district attorney in McCleskey’s case. Justice Blackmun cited
the prosecutor’s deposition, in which he acknowledged that there
were no guidelines for when to seek the death penalty and that the
only guidance was ‘‘on-the-job training.’’ According to the district

attorney, individual prosecutors made the death penalty decisions re-
garding their cases and were not even required to report these deci-
sions to him.26 Justice Blackmun noted the significance of the race of
the victim at various stages of prosecutorial decision-making and
urged the establishment of guidelines that might provide some pro-
cedural safeguards at these early stages of the criminal process.
The Baldus study is only one of many statistical analyses of racial
disparities in the implementation of the death penalty. Another such
study, published by the Death Penalty Information Center, suggests
that these disparities occur, at least in part, because almost all of the
chief state prosecutors are white.27 At the time of the study, 98 percent
of the chief District Attorneys in counties that use the death penalty
were white, and only 1 percent were African American.28 Although
the study does not suggest that white prosecutors intentionally or even
consciously pursue the death penalty primarily in cases involving white
victims, it does suggest that they are more likely to have relationships
with the families of white victims, and are therefore more receptive to
these families’ requests to seek the death penalty. Stephen Bright, the
director of the Southern Center for Human Rights, suggests more
unscrupulous dealings between at least one prosecutor and the family
of a white victim:
[F]rom 1973 to 1990 . . . in cases involving the murder of a

white person, prosecutors often met with the victim’s family
and discussed whether to seek the death penalty. In a case
involving the murder of the daughter of a prominent white
contractor, the prosecutor contacted the contractor and asked
him if he wanted to seek the death penalty. When the con-
tractor replied in the affirmative, the prosecutor said that was all
he needed to know. He obtained the death penalty at trial. He
was rewarded with a contribution of $5,000 from the con-
tractor when he successfully ran for judge in the next election.
The contribution was the largest received by the District
Attorney. . . . But prosecutors failed to meet with African-
Americans whose family members had been murdered to de-
termine what sentence they wanted. Most were not even no-
tified that the case had been resolved. As a result of these
practices, although African-Americans were the victims of 65
percent of the homicides in the Chattahoochee Judicial Cir-

cuit, 85 percent of the capital cases in that circuit were white
victim cases.29
WHEN PROSECUTORS OPPOSE

THE DEATH PENALTY
Robert Johnson
The Death Penalty Information Center’s study exposing and criticiz-

ing the dearth of African American chief prosecutors suggests that if
there were more chief prosecutors of color, there might be less racial
disparity in the implementation of the death penalty. Ironically, one
chief African American district attorney was removed from a case when
he did not immediately seek the death penalty. The case was a high-
profile murder of a police officer. The district attorney was Robert
T. Johnson. Johnson was first elected as the Bronx district attorney
in 1988 and was repeatedly reelected by his constituents. Despite
Johnson’s tough-on-crime approach, he was always open about his
opposition to the death penalty, a position with few political risks in
1988, when there was no death penalty in New York. However, in
1995, New Yorkers voted to include the death penalty as a sentencing
option.30 Johnson maintained his opposition to the death penalty, and
in 1996, he faced a major challenge.
On March 14, 1996, Officer Kevin Gillespie, who was white, was
shot and killed after three men hijacked a car and led police officers on
a high-speed chase that ended on the Grand Concourse in the Bronx.
Angel Diaz, a Hispanic man, was identified as the gunman. Almost im-
mediately after Diaz’s arrest, Governor George Pataki made a number
of public statements suggesting that Johnson should seek the death
penalty against Diaz. Johnson made it clear that he would not be
rushed to make a decision, noting that the New York statute gave him
120 days to decide whether to seek the death penalty.31
Johnson and Pataki engaged in a very public dispute in the days
that followed, with Johnson maintaining that the governor would not
pressure him into hurriedly making a life-or-death decision and the
governor accusing Johnson of failing to enforce the law against some-
one who had viciously gunned down a police officer. The two men
even appeared on the Today Show and engaged in a very contentious

debate. Pataki insisted that Johnson would not enforce the death
penalty statute because of his personal opposition to capital punish-
ment, and Johnson maintained that the governor was attempting to
rush him into making a decision without carefully considering all of
the appropriate issues.
Pataki ultimately ended the debate just seven days after the shooting
when, on March 21, he issued an executive order removing Johnson
from the case and assigning Attorney General Dennis C. Vacco to
replace him. According to the executive order, Johnson’s statements
and swift rejection of the death penalty option in prior death eligible
cases indicated that he had adopted a blanket policy against imposition
of the death penalty.32 The order stated that Johnson’s policy violated
his statutory duty to make death penalty determinations on a case-by-
case basis and opened the possibility that future death sentences would
be challenged as unconstitutional. The governor concluded that his
immediate intervention through a superseding order was necessary in
light of his obligation to assure that the death penalty law would be
faithfully executed. Pataki argued that the district attorney would take
action that would irrevocably foreclose the death penalty in the Gil-
lespie matter.
Johnson sued the governor and challenged the legality of the ex-
ecutive order. The New York Civil Liberties Union filed a similar
action on behalf of the Bronx voters and taxpayers, contending that
the governor did not have the right to remove Johnson in the absence
of corruption or similar illegal behavior. They argued that the gov-
ernor’s action disenfranchised the Bronx voters, who had reelected
Johnson with full knowledge of his reluctance to impose the death
penalty. Both lawsuits were dismissed, and the dismissals ultimately
were affirmed on appeal. Angel Diaz was indicted for the murder of
Officer Gillespie, and Vacco filed notice of his intention to seek the
death penalty. The case ended in a strange twist when Diaz was found
dead in his jail cell from an apparent suicide.
Ironically, Robert Johnson’s public statements against the death
penalty did not hurt him politically, before or after his conflict with the
governor. His constituents reelected him repeatedly, knowing of his
opposition to capital punishment. However, Johnson’s battle with the
governor raises the question of whether the electoral process can be
effective as an expression of the will of the people in the selection of

prosecutors, an issue discussed in more detail in chapter 9.
Kamala Harris
Several years later, a district attorney on the West Coast experienced a

similar political battle involving the death penalty. Kamala Harris was
elected district attorney for San Francisco in December 2003. Like
Johnson, Harris is a person of color33 who openly expressed her oppo-
sition to the death penalty before and after her election. Both prose-
cutors won elections in liberal pockets of death penalty states where
strong support for the death penalty would not be expected.
Kamala Harris was compelled to confront the death penalty de-
cision much sooner in her term of office than Johnson. Just a few
months after her election, on April 10, 2004, San Francisco police
officer Isaac Anthony Espinoza was gunned down with an AK-47.
David Hill was arrested for the murder, and immediately demands for
the death penalty poured in from a number of sources, including the
Police Officers Association, the victim’s parents, and even members of
the state legislature. Officer Espinoza was Hispanic, and David Hill is
African American.
Despite a great deal of political pressure, Harris declined to charge
Hill with capital murder. She issued a statement explaining her deci-
sion:
Some are demanding that death be the penalty. And I must

admit that I, too, felt an immediate desire for revenge. I have
been a member of law enforcement for my entire career, and so
I take personally the outrageousness of violence against a po-
lice officer. Wanting an eye for an eye is also one of the oldest,
and most natural, of emotions. But as one of America’s
greatest teachers, Dr. Martin Luther King Jr., said, ‘‘the old eye
for an eye philosophy leaves everyone blind.’’
The district attorney is charged with seeking justice, not
vengeance. From my career in law enforcement and the
law, it is clear to me that the death penalty is deeply flawed.
Numerous studies have shown the death penalty is not
a deterrent to murder. It is prone to error, resulting in innocent

people being sent to their death. It has been applied dispro-
portionately. And it drains millions of dollars from efforts that
more effectively protect public safety and promote justice.
The flaws of the death penalty are so deep, in fact, that when
police chiefs were asked to rank the factors that reduce vio-
lent crime, they mention curbing drug use, putting more of-
ficers on the street, longer sentences and gun control. They
ranked the death penalty as least effective. I am bound by oath
and law to make decisions about what charges to bring—not
based on emotion, anger or politics—within 48 hours of a
suspect’s arrest. Instead, I must use my long experience as a
prosecutor combined with a review of the facts and the law in
each case.
I have charged this case as a special circumstance homicide,
which automatically carries a sentence of life in prison without
possibility of parole. And, let’s be clear about that sentence: It
means exactly what is says. People who receive this sentence
never see the light of day again. For those who want this de-
fendant put to death, let me say simply that there can be no
exception to principle. I gave my word to the people of San
Francisco that I oppose the death penalty and I will honor that
commitment despite the strong emotions evoked by this case. I
have heard and considered those pleas very carefully and I
understand and share the pain that drives them, but my decision
is made and it is final.34
Harris was supported by a number of lawyers’ associations,35 but

her explanation did not satisfy her opponents. The president of the
Police Officers Association asked Harris to recuse herself from the case,
and when she refused, sent a letter to California attorney general Bill
Lockyer, asking that he review Harris’s handling of the case. State
Assemblyman Joe Canciamilla went even further, introducing a res-
olution in the state legislature urging state and federal officials to in-
tervene. The resolution urged Attorney General Lockyer to determine
whether he could legally intervene in the case and also asked the U.S.
attorney for Northern California to review the case to determine
whether the case could be prosecuted as a federal death penalty case.36
Canciamilla’s resolution did not pass, and the attorney general declined
to intervene, concluding that although he would have sought the death

penalty, Harris did not abuse her discretion by refusing to do so.37
The experiences of Johnson and Harris illustrate how prosecutors’
discretionary decisions are affected by politics, especially in death penalty
cases. Most state prosecutors are elected officials and thus very mindful
of public perceptions of how they are performing their prosecutorial
duties. Although most of their important decisions, such as charging and
plea bargaining decisions, are made in private, the public pays attention
to cases and issues that are exposed by the media. Death penalty cases
almost always attract media attention, so prosecutors, aware of the po-
litical ramifications of their actions, are very careful about how they
handle these cases publicly.
Most prosecutors in death penalty states garner political capital by
seeking the death penalty in high-profile cases in an effort to show that
they are tough on crime. Many of the same prosecutors will run for
office on the promise of seeking the death penalty and boast about the
number of death penalty sentences they secured when they run for
reelection.38 Very few will criticize the death penalty in any way,
much less openly oppose it as Johnson and Harris did.
Whether a prosecutor seeks the death penalty or opposes it, these
cases demonstrate the possibilities when the public is informed about
the important decisions prosecutors make. When the media educates
the public about an important prosecutorial decision, prosecutors often
feel compelled to respond and explain their decisions, thereby pro-
viding their constituents with a basis for holding them accountable
through the democratic process. Despite Governor Pataki’s actions,
Johnson’s constituents reelected him, sending the message, at least in
theory, that they approve of his decision concerning the death pen-
alty. Time will tell if the same holds true for Harris.
ARBITRARY DECISION-MAKING
Like so many other prosecutorial decisions, the death penalty decision

is far too arbitrary, often depending on the philosophy and proclivities
of the chief prosecutor instead of on legal principles, standards, or
guidelines. In most states, the chief prosecutor is a political animal who
frequently considers the political consequences of his actions before, or
instead of, standards or guidelines that are merely advisory. Given the
political nature of the death penalty, it is not surprising that the de-
cisions of Robert Johnson and Kamala Harris are the exception rather
than the rule.
The arbitrariness of the death penalty charging decision is troubling
for several reasons. First, the sheer gravity of the decision and its con-
sequences cries out for some measure of process and consistent decision-
making. Second, arbitrary decision-making can produce unjustified
disparities, like the racial disparities documented in the Baldus study and
others like it.39 A ‘‘one-size-fits-all’’ approach rarely works in the crim-
inal justice system, but notions of fairness require some consistency
among similarly situated individuals.
Arbitrary decision-making causes disparities in the implementation
of the death penalty on a number of levels—from case to case, from
prosecutor to prosecutor, and from office to office. A study conducted
by criminologist Raymond Paternoster of the University of Maryland
illustrates the problem. Paternoster’s study was strikingly similar to the
Baldus study in methodology and results, but it focused more on the
role of the prosecutor. The study found that Maryland state’s attorneys
are more likely to seek the death penalty in cases involving white
victims and are significantly and substantially more likely to seek it in
cases involving a white victim and a black defendant.40 The study
further found that the state’s attorney for Baltimore County is sig-
nificantly more likely to seek the death penalty than state’s attorneys in
any other county in Maryland.41 Thus, according to the study, because
of differences among prosecutors, whether one faces the death penalty
in Maryland depends on totally fortuitous and inappropriate factors
such as race and geography.
There is no evidence that any prosecutor in the state of Maryland
consciously considers race when making the death penalty decision.
According to Baltimore County state’s attorney Sandra A. O’Connor,
‘‘[w]e knew going into the study that our policy was racially neutral,
and the statistics back us up. We don’t look at the race of the victim;
we don’t look at the race of the defendant. That has been in our pol-
icy for 20 years and will continue to be.’’42 O’Connor seeks the death
penalty in every death eligible case. In other words, instead of exer-
cising discretion in making the death penalty decision, she seeks it in
every murder case that falls within the parameters of the statute. This
practice eliminates disparities in her county but causes tremendous dis-
parities in the entire state, since state’s attorneys in other counties rarely
seek the death penalty.43 Thus, the same law is applied and enforced in
dramatically different ways, depending on where the crime is com-
mitted and the inclination of the prosecutor for that geographical area.
Some might suggest that the geographic disparities are not prob-
lematic because the prosecutors for each county must answer to the
residents who elected them. In other words, if the residents of Balti-
more County disagree with O’Connor’s death penalty decisions, they
have the power to remove her from office. Likewise, if the residents of
the other counties want their prosecutors to seek the death penalty
more frequently, they have the power to advocate for its greater use.
These prosecutors would suggest that their constituents would com-
plain or vote them out of office if they were displeased with the man-
ner and frequency with which they sought the death penalty.
Does the democratic system of accountability for prosecutors func-
tion as it should? A true system of accountability requires transparency—
the public must have information in order to make meaningful decisions.
If the public does not know the facts and circumstances of death eli-
gible cases, it cannot make a judgment about whether the prosecutor is
exercising her discretion fairly. Currently, the public is entirely de-
pendent on the media and the unpredictable nature of news reporting.
The media picks and chooses the cases it investigates and does not have
access to all of the relevant information. In the absence of a structure
that regularly and systematically informs the public of prosecutorial
decisions, can the public truly hold prosecutors accountable for their
exercise of discretion in the implementation of the death penalty?
Accountability through transparency might improve the prose-
cutor’s troubling role in the implementation of the death penalty, but
it would not repair it entirely. Even with access to all of the relevant
information, the public does not necessarily have the ability to make
judgments about all of the complex legal decisions inherent in the
death penalty and other important prosecutorial decisions. Although
some combination of transparency and public accountability on the
one hand and legal standards for prosecutors on the other might im-
prove the prosecutorial decision-making process in death penalty
cases, the many inequities that result from these decisions seem to
confirm Justice Blackmun’s conclusion that ‘‘the death penalty ex-
periment has failed.’’
SIX
Federal Prosecutors and the Power

of the Attorney General
All of the problematic issues that affect the prosecutorial function—

unbridled discretion, unrestrained power, and lack of accountability—
apply to both state and federal prosecutors. The impact that these issues
have on charging and plea bargaining decisions and the implementa-
tion of the death penalty affect the prosecutorial function on both the
state and federal levels. These problems are played out much more
intensely in the hands of federal prosecutors, however, and are thus
more troubling in their sphere of power.
Beyond the expansive power of federal prosecutors, there are two
primary reasons why they warrant particular attention. First, the fed-
eral government has an all-encompassing impact on everyone in the
nation and a tremendous influence on state and local governments.
The laws passed by the U.S. Congress govern all residents, and state
and local governments often follow the lead of the federal government
in the passage and implementation of their local laws and policies.
Although the vast majority of criminal cases are prosecuted by state and
local prosecutors,1 in the past several decades Congress has passed an
extraordinary number of federal criminal laws.2 Many of these laws are
very broad and authorize prosecution of individuals for what hardly
seems a federal case.3 Thus, federal prosecutors, as the enforcers of
these laws, arguably wield even more power and control than state
prosecutors.
93
The second basis for concern is the lack of accountability for federal
prosecutors, an issue that will be explored in more detail in chapter 9.
They are appointed rather than elected, and the appointments pro-
cess provides for very little meaningful input from ordinary voters. The
chief federal prosecutor for the nation, the attorney general, is the
single most powerful federal prosecutor in the country. The attorney
general’s policies and decisions can have a monumental impact on the
lives of ordinary people, even though the people have no meaningful
system for holding the attorney general accountable.
THE ROLE OF THE FEDERAL PROSECUTOR
Federal prosecutors play a wide range of roles in various agencies and

U.S. attorneys’ offices across the country. The Department of Justice
(often called Main Justice), located in Washington, D.C., is a massive
federal structure, consisting of a broad range of offices and divisions.
The organizational chart in figure 6.1 illustrates its enormity.4
In addition to the U.S. attorneys’ offices, there are federal prose-
cutors in the Criminal Division of the Justice Department.5 At one
time, the Criminal Division ran ‘‘strike forces’’ to deal with organized
crime. Today, however, the Criminal Division prosecutes a few spe-
cific crimes and assists U.S. attorneys, but its role in the mainstream of
federal prosecutions is limited. There is a U.S. attorney for each of the
ninety-three federal districts in the country. The president nominates
the attorney general and the U.S. attorney for each district, and the
Senate must confirm the appointments by a simple majority vote. Al-
though federal law indicates that the attorney general appoints the
assistant U.S. attorneys (AUSAs) who serve in each U.S. attorney’s
office,6 the practical reality is that each U.S. attorney hires and fires the
AUSAs in her office and has daily supervisory authority over them.
United States attorneys are responsible for enforcing the federal
laws. Currently, there are over three thousand federal criminal of-
fenses, many of which duplicate existing state criminal laws.7 Since
state and federal prosecutors have simultaneous jurisdiction over the
same individuals, a decision must be made about which office will
prosecute or whether there will be successive prosecutions, a practice
that is legally permissible, despite the double jeopardy clause.8 There
are no rules or laws that govern how this decision should be made, and
U.S. DEPATMENT OF JUSTICE
Attorney General
Deputy
Attorney General
ASSOCIATE
SOLICITOR
ATTORNEY
GENERAL
GENERAL
OFFICE OF
OFFICE OF OFFICE OF PUBLIC
THE LEGAL POLICY AFFAIRS
SOLICITOR
GENERAL
COMMUNITY OFFICE OF OFFICE OF

OFFICE OF CIVIL CIVIL LEGISLATIVE LEGAL FEDERAL CRIMINAL NATIONAL OFFICE OF
JUSTICE ORIENTED RIGHTS PROFESSIONAL
POLICING DIVISION AFFAIRS COUNSEL BUREAU OF DIVISION SECURITY
PROGRAMS DIVISION INVESTIGATION DIVISION RESPONSIBILITY
SERVICES
OFFICE OF
EXECUTIVE ENVIRONMENT INTER- OFFICE OF
OFFICE OF ANTITRUST AND NATURAL DRUG BUREAU OF OFFICE OF THE
OFFICE FOR INFORMATION GOVERNMENTAL ENFORCEMENT THE
UNITED STATES DIVISION RESOURCES PRISONS INSPECTOR PARDON
AND PRIVACY AND PUBLIC LIAISON ADMINISTRATION ATTORNEY
TRUSTEES DIVISION GENERAL
FOREIGN EXECUTIVE UNITED UNITED

OFFICE OF CLAIMS TAX COMMUNITY JUSTICE
DISPUTE RELATIONS OFFICE FOR STATES STATES
SETTLEMENT DIVISION UNITED STATES MANAGEMENT PAROLE
RESOLUTION SERVICE MARSHALS DIVISION
COMMISSION ATTORNEYS SERVICE COMMISSION
OFFICE OF U.S. NATIONAL EXECUTIVE NATIONAL

VIOLENCE UNITED CENTRAL OFFICE FOR
STATES DRUG
AGAINST BUREAU IMMIGRATION INTELLIGENCE
WOMEN ATTORNEYS INTERPOL REVIEW CENTER
BUREAU OF OFFICE OF THE PROFESSIONAL

ALCOHOL, FEDERAL RESPONSIBILITY
TOBACCO, DETENTION ADVISORY
FIREARMS, & TRUSTEE OFFICE
EXPLOSIVES
Figure 6.1. U.S. Department of Justice organizational chart.

despite the discretion and independence enjoyed by each U.S. attor-

ney, the attorney general can set the tone and provide guidance on the
types of cases each office should pursue.
The Justice Department publishes a U.S. attorneys’ manual that
sets forth policies and procedures for U.S. attorneys and other Justice
Department lawyers in all of its divisions, including civil, tax, antitrust,
environment and natural resources, civil rights, and criminal. Does the
U.S. attorneys’ manual effectively regulate and control the discretion
of federal prosecutors? The criminal section of the manual establishes
justice department policies on a wide range of criminal issues, in-
cluding the circumstances under which federal prosecutors should
commence or decline prosecution. Section 9-27.220 states:
The attorney for the government should commence or rec-

ommend federal prosecution if he/she believes that the per-
son’s conduct constitutes a federal offense and that the admis-
sible evidence will probably be sufficient to obtain and sustain a
conviction, unless, in his/her judgment, prosecution should be
declined because:
1. No substantial federal interest would be served by
prosecution;
2. The person is subject to effective prosecution in another
jurisdiction; or
3. There exists an adequate non-criminal alternative to
prosecution.9
Of course, each of these exceptions is subject to the interpretation

of the individual U.S. attorneys. As the comment to this section of the
manual states, ‘‘[i]t is left to the judgment of the attorney for the
government whether such a situation exists.’’10 In fact, the introduc-
tion to the manual makes it clear that its policies and procedures are
not required:
The Manual provides only internal Department of Justice

guidance. It is not intended to, does not, and may not be relied
upon to create any rights, substantive or procedural, enforce-
able at law by any party in any matter civil or criminal. Nor are
any limitations hereby placed on otherwise lawful litigative
prerogatives of the Department of Justice.11
THE POWER OF THE ATTORNEY GENERAL 97
Ed Rosenthal’s case demonstrates the extent to which the U.S.

attorneys’ manual controls when and under what circumstances U.S.
attorneys seek federal prosecutions. Rosenthal was a medical marijuana
advocate who was specifically authorized to grow marijuana for medical
use by the city of Oakland in California. The California Compassionate
Use Act, passed by the voters in 1996, legalized growing marijuana for
this purpose. Federal prosecutors, fully aware of the legality of Rosen-
thal’s actions under California state law, prosecuted him in federal court
for violating the Controlled Substance Act, 21 U.S.C. xx 841, 846, and
856. At his trial in federal court, U.S. District Court judge Charles
Breyer prohibited Rosenthal from presenting a medical marijuana de-
fense, so the jury never knew about the legal authority under which
Rosenthal grew marijuana. He was convicted, but when the jurors
discovered the facts after the trial ended, many of them were appalled.
Several jurors held a press conference and expressed their dismay and
outrage that they had not been permitted to consider Rosenthal’s
medical marijuana defense.12 Although Rosenthal faced a maximum of
sixty years under the federal sentencing guidelines, nine of the twelve
jurors wrote a letter to the judge asking that he not sentence Rosenthal
to prison. Even California’s attorney general, Bill Lockyer, urged the
judge to impose the minimum sentence permitted.13 Nonetheless, the
federal prosecutor asked for five years. Judge Breyer ultimately sentenced
Rosenthal to one day in prison. The federal prosecutor appealed Judge
Breyer’s sentence.
Thus, the extent to which federal prosecutors in individual offices
follow the policies and procedures in the U.S. attorneys’ manual de-
pends largely on the U.S. attorney in charge of each office. As with
state prosecution offices, the chief prosecutor sets the tone and culture
of the office and determines the extent to which individual prosecutors
exercise their own discretion in individual cases. Some attorneys
general have delegated substantial power and control to individual
U.S. attorneys, while others have played a more significant role in the
day-to-day prosecution of criminal cases. Regardless of whether the
manual is followed, its language permits the broad exercise of discre-
tion and neither requires nor prohibits particular practices or policies.
Consequently, even though the criminal section of the manual en-
compasses numerous criminal issues, including the grand jury, in-
dictments, capital cases, electronic surveillance, and plea bargaining, it
merely provides internal guidance to the prosecutors who use it.
For example, the section on the grand jury indicates that ‘‘it is the
policy of the Department of Justice to advise a grand jury witness of his
or her rights if such witness is a ‘target’ or ‘subject’ of a grand jury
investigation.’’14 It further explains that although the U.S. Supreme
Court has held that targets of grand jury investigations are not entitled
to any special warnings,15 the Justice Department will continue its
longstanding policy of informing all grand jury witnesses of their right
to remain silent, as follows:
Advice of Rights
* The grand jury is conducting an investigation of possible
violations of Federal criminal laws involving: (State here
the general subject matter of inquiry, e.g., conducting an
illegal gambling business in violation of 18 U.S.C. x 1955).
* You may refuse to answer any question if a truthful an-
swer to the question would tend to incriminate you.
* Anything that you do say may be used against you by the
grand jury or in a subsequent legal proceeding.
* If you have retained counsel, the grand jury will permit
you a reasonable opportunity to step outside the grand
jury room to consult with counsel if you so desire.
Additional Advice to be Given to Targets: If the witness is a

target, the above advice should also contain a supplemental
warning that the witness’s conduct is being investigated for
possible violation of federal criminal law.16
Of course if a particular AUSA fails to give these warnings, neither the

witness nor target is entitled to relief, nor does the AUSA suffer any
consequences.
In sum, although the U.S. attorneys’ manual appears to establish
meaningful policies governing a broad range of criminal issues, its un-
enforceability renders it largely ineffective as a means of regulating
prosecutorial power and discretion.17 Like state prosecutors, AUSAs
enjoy vast, unrestrained discretion and power in the prosecution of
criminal cases. The difference lies in the fact that the exercise of federal
prosecutorial discretion often has much greater consequences.
FEDERAL PROSECUTORS
AND THE WAR ON DRUGS
No phenomenon better illustrates the dire consequences of the ex-

ercise of federal prosecutorial discretion than the ‘‘War on Drugs.’’
Launched during the 1980s,18 the War on Drugs consisted of a series of
tough anti-drug policies and laws that resulted in a massive increase in
the prison population and unprecedented racial disparities at the arrest,
prosecution, and sentencing stages of the criminal process. These laws
and policies also resulted in a tremendous expansion of the power and
discretion of federal prosecutors. First, the number of federal prose-
cutors increased tremendously during the War on Drugs—from twelve
hundred to seven thousand.19 And, although there has been an overall
increase in the number of federal prosecutions in all offense categories,
the greatest increase occurred in drug prosecutions, which tripled
between 1981 and 1990.20
The Anti-Drug Abuse Act of 1986 provided prosecutors with the
authority and incentive to pursue drug prosecutions in record num-
bers. Passed with alarming speed and no public hearings or consulta-
tion with experts, this law established long mandatory minimum
prison terms for low-level drug dealing and possession of crack co-
caine.21 States passed laws with mandatory minimum terms before and
after the federal law was passed. But the federal laws stand out because
of the extreme harshness of the sentences—a mandatory five, ten, fifteen
years or more as the minimum term of the sentence—laws far harsher
than the state laws that penalize the same conduct.22 Was there a need for
a federal statute penalizing drug possession and distribution? State
prosecutors had been effectively prosecuting drug offenses long before
the 1986 law was passed, but Congress forged ahead in a highly politi-
cized atmosphere on the heels of the death of Len Bias, a nationally
known National Collegiate Athletic Association (NCAA) basketball star
who died from a drug overdose.
The law was passed hurriedly without the preferred deliberation
and consultation, but there was an effort on the part of the Subcom-
mittee on Crime to provide some rational basis for the law. This
Subcommittee attempted to assure that the law would be used to target
‘‘major’’ drug traffickers responsible for manufacturing and/or dis-
tributing very large quantities of drugs.23 Unfortunately, their efforts
did not prevail, and the final version of the law gave prosecutors broad
authority to prosecute low-level users and dealers.
Although not a stated purpose, one of the most significant effects of
the 1986 law was the intensification of the already considerable dis-
cretion and power of federal prosecutors. Together with the Sen-
tencing Reform Act of 1984, which established the federal sentencing
guidelines, this law effectively removed almost all of the sentencing
discretion of federal judges in drug cases, while simultaneously trans-
ferring it to the officials least accountable to the people—federal pros-
ecutors. Spurred on by the ‘‘tough on crime’’ politics of the Reagan
and the first Bush administrations and armed with the Anti-Drug
Abuse Act of 1986, the Justice Department pursued drug prosecutions
with extraordinary vigor. The federal courts, previously reserved pri-
marily for cases involving issues of national or federal interest, were
flooded with cases involving small-time neighborhood drug dealers
and their girlfriends and family members, who were often arrested and
prosecuted for conspiracy on the scantiest of evidence.
The federal prosecution of drug offenses is probably the single most
prominent example of federal intrusion into an area previously left to
the states. There is no ‘‘substantial Federal interest’’ in prosecuting low-
level drug dealers selling small quantities of cocaine or other drugs, and
state prosecutors have prosecuted these drug offenses consistently and
effectively on all levels—before and after the passage of the 1986 law.24
The U.S. attorneys’ manual clearly states that federal prosecution
should be declined if ‘‘no substantial Federal interest would be served
by prosecution; the person is subject to effective prosecution in another
jurisdiction; or there exists an adequate non-criminal alternative to
prosecution.’’25 Reasonable minds may differ on whether criminal
prosecution is a necessary response to drug use and distribution, but the
first two factors suggest that federal prosecution of these offenses should
be declined.
Although there are no rules or laws that determine when federal
prosecutions should take precedence in cases involving concurrent
jurisdiction, state prosecutors generally defer to the Justice Department
when it has expressed interest in the prosecution of particular drug
cases. The facts and circumstances of the cases prosecuted in federal
court are not significantly different from those brought in state court,
yet the results and consequences are strikingly different.
Does the exercise of discretion by federal prosecutors in drug cases

produce unfair disparities? United States v. Armstrong26 provides a
compelling example. In this case, nine African American defendants in
Los Angeles were charged in federal court with conspiring to distribute
and conspiring to possess with intent to distribute more than fifty
grams of crack cocaine. They also were charged with various firearms
offenses. The defendants filed a motion to dismiss the indictment for
selective prosecution based on race. Their claim was based on evidence
that the U.S. attorney prosecuted virtually all African Americans
charged with crack offenses in federal court, leaving all white crack
defendants to be prosecuted in state court.27 Since the federal law
penalizes crack trafficking much more harshly than the California state
law,28 this decision by the federal prosecutor resulted in African
Americans receiving harsher punishment than their white counterparts
charged with the same criminal conduct.
The defendants filed a discovery motion to obtain information in
support of their claim. The information requested included the U.S.
attorney’s criteria for deciding whether to bring charges in federal
court and the number and racial identity of all defendants charged with
crack offenses in both federal court and state court. The prosecution
opposed the discovery motion, explaining that the facts of the case met
the criteria for prosecution and denying that the defendants were
prosecuted because they were black. Interestingly, the prosecution
neither admitted nor denied the claim that there were no federal
prosecutions of white defendants charged with these offenses. Despite
the prosecution’s opposition, the district court granted the motion.
The U.S. attorney went to remarkable lengths to avoid turning
over the requested information. If he had not singled out African
Americans for prosecution in federal court, then why not provide the
requested information? The defendants did not request names or other
identifying information about specific defendants, so privacy concerns
were not at issue. Specifically, the district court ordered the govern-
ment: (1) to provide a list of all cases from the last three years in which
the government charged both cocaine and firearms offenses, (2) to
identify the race of the defendants in those cases, (3) to identify what
levels of law enforcement were involved in the investigations of those
cases, and (4) to explain its criteria for deciding to prosecute those
defendants for federal cocaine offenses.29 Even though the prosecutors
never explained how the discovery of this information would harm the
prosecution of the case, their determination to prevent the discovery
of the information was unrelenting. They appealed to the Court of
Appeals for the Ninth Circuit, and when they lost this appeal,30 they
appealed the decision all the way to the Supreme Court.
Armstrong’s federal prosecutors finally found support in the U.S.
Supreme Court. The Court reversed the Ninth Circuit decision,
holding that, in order to establish entitlement to discovery in selective
prosecution cases based on race, a defendant must produce credible
evidence that similarly situated defendants of other races could have
been prosecuted, but were not.31 The Court held that the defendants
in Armstrong did not meet this threshold and reiterated the equal
protection standard applicable in selective prosecution claims. The
Court noted that in selective prosecution cases, the claimant must
show discriminatory effect and purpose, and explained that, to establish
discriminatory effect, the claimant must show that ‘‘similarly situated
individuals of a different race were not prosecuted.’’32 In other words,
the Court placed the burden of demonstrating selective prosecution on
the defendants, and it made that burden extremely heavy.
The Armstrong case illustrates how federal prosecutions can pro-
duce unjustified racial disparities. The prosecutors in that case never
explained their criteria for choosing certain drug cases over others, and
they spent considerable time and resources defending their right not to
explain these disparities. The Supreme Court’s decision in Armstrong
empowers federal prosecutors to proceed with these prosecutions.
According to the Court:
The Attorney General and United States Attorneys retain

‘‘ ‘broad discretion’ ’’ to enforce the Nation’s criminal laws.
Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524,
1530–1531, 84 L.Ed.2d 547 (1985) (quoting United States v.
Goodwin, 457 U.S. 368, 380, n. 11, 102 S.Ct. 2485, 2492, n. 11,
73 L.Ed.2d 74 [1982]). They have this latitude because they are
designated by statute as the President’s delegates to help
him discharge his constitutional responsibility to ‘‘take Care
that the Laws be faithfully executed.’’ U.S. Const., Art. II, x 3;
see 28 U.S.C. xx 516, 547. As a result, ‘‘[t]he presumption of
regularity supports’’ their prosecutorial decisions and, ‘‘in the
absence of clear evidence to the contrary, courts presume that
they have properly discharged their official duties.’’ United

States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15, 47 S.Ct.
1, 6, 71 L.Ed. 131 (1926). In the ordinary case, ‘‘so long as the
prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether
or not to prosecute, and what charge to file or bring before
a grand jury, generally rests entirely in his discretion.’’ Bor-
denkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54
L.Ed.2d 604 (1978).33
Although the Court states that prosecutors must exercise discretion in

accordance with the equal protection clause of the U.S. Constitution,
its holdings in Armstrong and McCleskey34 make it practically impossible
to challenge prosecutorial decisions that produce unwarranted racial
disparities.
THE FEDERAL SENTENCING GUIDELINES
The U.S. Congress passed the Sentencing Reform Act of 1984 in

response to widespread discontent with the sentencing practices of
federal judges.35 Liberals and conservatives alike bemoaned the great
variances in sentences imposed for similarly situated individuals con-
victed of the same offenses. Liberals complained that wealthy, well-
educated defendants frequently received little or no prison time while
poor defendants and defendants of color were sentenced to lengthy
prison terms. Conservatives complained that liberal judges should not
be permitted to show leniency to poor, uneducated defendants merely
because they had suffered disadvantages in their lives. Hence legislation
was passed to eliminate the variances in sentences for the same or
similar offenses.
The Sentencing Reform Act of 1984 established the United States
Sentencing Commission to create sentencing guidelines for federal
judges with the goal of establishing uniformity in sentencing practices.
In 1987, the Commission completed its initial work, and Congress
passed the first version of the Federal Sentencing Guidelines on No-
vember 1, 1987. What the guidelines lacked in compassion they made
up for in complexity. Judges, prosecutors, and defense attorneys were
required to learn a complex graph system from an 845-page manual.
The sentences are calculated on a grid consisting of two intersecting

axes—one measuring the severity of the offense and the other deter-
mining the criminal history of the defendant. The offense axis consists
of forty-three levels, and the criminal history axis determines the
number of prior convictions. In January 2005, in a case called United
States v. Booker,36 the Supreme Court ruled that the guidelines would
be advisory rather than mandatory. But before Booker was decided, the
point at which the two axes intersect indicated a narrow range of
months within which the judge was required to sentence the defen-
dant. The following description of a federal sentencing hearing in
Galveston, Texas, where U.S. district judge Samuel Kent sentenced
twenty-four-year-old Martin Jarvis Jackson for illegal firearms pos-
session, illustrates how complicated guidelines sentencing can be:
‘‘The court finds that the base offense level is 20,’’ the judge
began. ‘‘Pursuant to Guideline 2K2.1(B)(4), the offense level is
increased by two levels [to 22]. . . . The court notes that the
criminal convictions . . . result in a total criminal history cate-
gory score of 18. At the time of the instant offense . . . the
defendant was serving a parole sentence in two causes of action.
And pursuant to Sentencing Guidelines 4A1.1(D), 2 points
are therefore added. The total criminal history points is 20. And
according to the sentencing guidelines Chapter 5, Part A,
20 criminal history points establish a criminal history cate-
gory of 6. . . . [As a result] the guideline range for imprison-
ment is 84 to 105 months.’’37
Before Booker, the only relevant factors that judges could consider
to reduce or increase the sentence within the prescribed range related
to either the charge itself or the defendant’s criminal history. The
guidelines permit a limited number of ‘‘departures,’’ including whether
the defendant has provided ‘‘substantial assistance’’ to governmen-
tal authorities in the prosecution of others (downward departure),
whether his conduct caused death or serious injury (upward depar-
ture), and whether his conduct was unusually extreme or cruel (up-
ward departure).38 Judges were not permitted to reduce the sentence
based on factors such as drug addiction, lack of education or oppor-
tunity, emotional abuse or illness, or socioeconomic disadvantage.39
Among the many Supreme Court decisions interpreting the Federal
Sentencing Guidelines since their inception in 1987 is a case that

permitted judges to increase the prescribed sentence not only for
criminal convictions but for arrests not resulting in a conviction and
behavior with which the defendant has been charged but not con-
victed.40
Few criminal justice initiatives have been criticized more than the
Federal Sentencing Guidelines.41 Not only are they mechanical and
extremely complicated, but the sentencing ranges for specific cate-
gories of offenses are exceptionally high, and there are very few of-
fenses for which a probationary sentence is permitted.42 Moreover, in
some cases the lengthy sentences prescribed by the guidelines can be
further increased by the mandatory minimum sentencing laws. And
the Sentencing Reform Act required not only the establishment of
rigid guidelines but also the abolition of parole, requiring defendants to
serve at least 85 percent of these long sentences.
One of the most frequent criticisms of the Federal Sentencing
Guidelines has been their elimination of judicial discretion and the
corresponding enhancement of prosecutorial discretion and power.
Although some have described the outcome of the guidelines as a
‘‘transfer’’ of discretion from judges to prosecutors, a more accurate
description is the ‘‘concentration’’ of discretion in the hands of pros-
ecutors. Prosecutors exercised vast discretion before the guidelines.
Since the guidelines stripped judges of discretion, and the defense
attorney’s role never involved the exercise of discretion, before the
Booker decision, prosecutors were left with exclusive control over this
important function.
In the pre-Booker world, federal prosecutors’ charging and plea
bargaining decisions effectively predetermined the outcome of most
criminal cases. Although state prosecutors wield similar power, these
decisions have more serious ramifications in federal court, where the
risk of exercising one’s right to a jury trial is much greater due to the
harshness of federal sentences. Since the sentencing guidelines and
mandatory minimum sentencing laws required judges to impose a
specific sentence based on limited, charge-based information, unless
the defendant exercised his right to trial and was acquitted of all of the
offenses, the prosecutor’s charging and plea bargaining decisions de-
termined whether he would be incarcerated and how long the term of
incarceration would be. Judges had no power to show leniency at the
sentencing hearing.
The vast majority of criminal defendants plea bargain in federal

court because going to trial is risky business. Before Booker, if a de-
fendant was charged with several offenses, the guidelines ensured that
each offense would carry a lengthy term of imprisonment. For most
defendants, the possibility that a jury or judge might acquit them of the
charges was too risky and uncertain. If a defendant accepted a plea
offer, he knew how much time he faced. Even if that term of im-
prisonment was lengthy, it would be significantly less than the guaran-
teed term of imprisonment he would serve if he was convicted of all
charges after a trial. In some of these cases, the prosecutors were less
than confident that they would secure a conviction at trial, but it was
the rare prosecutor who would reveal those doubts to the defense.
U.S. attorney Jay McCloskey of Maine described how he persuaded
defendants to plead guilty simply by confronting them with the
maximum sentence they could get under the federal guidelines:
Only the U.S. attorney knows the strengths and weaknesses

of his case but you don’t have to show that hand. I don’t know
how many cases I’ve had where a defendant pleaded guilty
when he saw how we’d charged him and where I thought I’m
lucky they didn’t know how weak my case was if I’d had to
take it to trial.43
‘‘SUBSTANTIAL’’ ASSISTANCE
Prior to the Booker decision, section 5K1.1 of the guidelines afforded

extraordinary power and discretion to federal prosecutors. This section
discusses one of the few means by which a judge could sentence a
defendant to less prison time than the guidelines required, and it was
left entirely within the discretion of the prosecutor. According to
section 5K1.1, ‘‘[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the
court may depart from the guidelines.’’44 In other words, unless the
prosecutor filed a 5K1.1 motion, the judge could not grant a lower
sentence.
Prosecutors file 5K1.1 or ‘‘substantial assistance’’ motions in the
same arbitrary fashion with which they perform most of their im-
portant functions. There are no rules or criteria in the guidelines or

the U.S. attorneys’ manual governing the circumstances under which
these motions should be filed. There is no definition of ‘‘substantial
assistance,’’ leaving this important interpretation totally within the
discretion of the prosecutor. It is defined different ways by different
prosecutors and offices. Individual prosecutors even interpret the term
differently from case to case. For example, some offices will only file
5K motions if the defendant provides information that leads to an
arrest and/or conviction, while others will file the motion as long as
valuable information is provided, whether or not the prosecutor se-
cures additional convictions. Individual prosecutors may file the mo-
tion for one defendant who provides minimal information while de-
nying it to another who provides substantial information. Challenges
to these decisions have rarely been successful.
Prosecutors have nothing to lose and everything to gain by offering
to file a 5K motion in exchange for a defendant’s cooperation. Before
Booker, however, defendants agreed to these deals at almost as great a
risk as exercising their right to trial. The defendant pled guilty up front
and agreed to cooperate and provide information to assist the prose-
cutor. However, the prosecutor filed the 5K motion requesting a
departure from the guidelines only after he or she was satisfied that the
defendant had provided ‘‘substantial assistance.’’
There are countless examples of prosecutors declining to file 5K
motions after defendants have provided information, often at great
peril to the defendant’s own safety. Ernest Ganz was one such de-
fendant. In 1991, Ganz, a commuter pilot, was indicted for attempting
to import several hundred pounds of marijuana into south Florida. If
he chose to go to trial, he risked conviction on all charges and a 97- to
121-month prison term under the guidelines. The federal prosecutor
offered him a deal. If he agreed to tell the prosecutor everything he
knew about drug deliveries and work undercover, the prosecutor
would dismiss one count and consider filing a 5K motion. Ganz co-
operated to the fullest, secretly tape-recording conversations with drug
dealers who threatened to kill him if he ‘‘snitched’’ and meeting over
thirty times with federal customs agents. One of the customs agents
even offered testimony about how helpful Ganz had been. But it wasn’t
enough for AUSA William Michael. Without explanation, Michael
declined to file the 5K motion. Fortunately for Ganz, his case was one
of the rare instances where the judge found that the prosecutor acted
in bad faith—the standard by which judges may override the prose-

cutor’s decision. Judge Shelby Highsmith ordered Michael to file the
5K motion and sentenced Ganz to twenty-four months.45
Mark Forney’s case was much more typical. Forney pled guilty to
conspiracy with intent to distribute cocaine and agreed to cooperate
with the government in exchange for the prosecutor’s agreement to
file a 5K motion. Forney provided the government with significant
information about other individuals and identified photographs of the
perpetrators. Nonetheless, the prosecutor declined to file a 5K motion,
claiming that Forney’s information had not led to any arrests. How-
ever, the information provided was sufficient as a basis for arrest
warrants; the prosecutor simply chose not to pursue the arrests because
he believed the crimes were too minor to prosecute. At his sentencing
hearing, Forney asked the judge to depart from the guidelines, noting
that had he known that the prosecutor might take this position, he
never would have pled guilty. The judge refused to depart, stating that
the decision was up to the prosecutor and that there was nothing he
could do.46
CONTINUED DISPARITY
The enhanced power of federal prosecutors created by the guidelines

not only granted them almost exclusive control over the outcome of
most cases; it failed to achieve the primary goal of the guidelines—
uniformity in sentencing. The sentencing disparities the guidelines
were designed to eliminate are now worse than ever. A year-long
investigation conducted by the Washington Post included the analysis of
seventy-nine thousand criminal sentencing hearings and three hun-
dred court opinions in fiscal years 1994 and 1995 and concluded that
sentencing disparities persisted since the implementation of the
guidelines.47 Black defendants are more likely than whites to receive
the severest sentences, and female defendants receive slightly more
lenient sentences than men for the same crimes committed under
similar circumstances. There are also geographical disparities, with
defendants in one part of the country receiving longer sentences than
their similarly situated counterparts in other states.48 The racial and
geographical disparities result from the discretionary nature of charging
and plea bargaining decisions among federal prosecutors—from case to
case, courtroom to courtroom, and from city to city. In 1994, the

Sentencing Commission studied how prosecutors made decisions
about which cases to pursue and when to award leniency. Ilene H.
Nagel, an original commission member and the study’s coauthor,
noted: ‘‘There appeared to be disturbing hints of social class, race and
gender distinctions.’’49
THE FEENEY AMENDMENT
Despite extensive criticisms of the guidelines, Congress has taken little

action to amend its provisions or rectify the harsh, unfair consequences
it produces. In fact, Congress required the Sentencing Commission to
amend the guidelines to provide even more power for prosecutors at
the expense of judicial independence. In April 2003, Congress
amended the Sentencing Reform Act of 1984 by passing the ‘‘Feeney
Amendment’’50 to the ‘‘Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act,’’ or ‘‘PROTECT Act.’’51 Pur-
suant to the amendment, in any case in which a judge gives a
downward departure, or sentence lower than the guidelines recom-
mendation, the judge was required to file a written report of their
reasons for the lesser sentence. The chief judge of that district was
required to file a report with the Sentencing Commission, which
included the judge’s statement of reasons, the presentence report, and
the plea agreement, and provide that report to the Department of
Justice and/or Congress, on request. The Feeney Amendment also
required the Justice Department to send a report to Congress on every
case in which there is a downward departure for reasons other than
substantial assistance to the prosecutor. This report from the Justice
Department included the facts of the case, the identity of the sen-
tencing judge, the judge’s stated reasons for departure, and the parties’
position on the downward departure.52
The Feeney Amendment was a very clear threat to judges—if you
dare to exercise judicial independence and stray from the mandates of
the Federal Sentencing Guidelines, you will have to justify your ac-
tions, not only to Congress but to the prosecutors who appear before
you. Although federal judges have lifetime tenure, many critics of the
Feeney Amendment viewed it as a sort of ‘‘blacklist’’ that threatened
judicial independence.53 Some of Congress’s actions corroborate this
view. For example, after Chief Judge James Rosenbaum of Minnesota

testified against the amendment before the House Judiciary Com-
mittee, some of the Committee’s members threatened to subpoena his
records in all cases in which he departed from the guidelines.54 Since
Congress must approve all judicial nominations, the amendment
served as a threat to any judge with aspirations of ascension to a higher
federal court. Another fear was that the Feeney Amendment’s new
requirements would chill judicial discretion by intimidation.55 For fear
of being reported, judges would be compelled to issue a harsher
guideline sentence, even if they strongly believed a departure was
warranted.56
Many federal judges resisted the amendment’s requirement that
they cede even more of their independence to prosecutors and the
Congress. In June 2003, Judge John Martin, Jr., of the U.S. District
Court in Manhattan announced that he would take early retirement,
relinquishing his lifetime appointment, in part to protest the unfairness
of the sentencing process.57 In December 2003, twenty-seven federal
judges from around the country signed a statement calling for repeal
of the Feeney Amendment.58 Even conservative judges, such as Su-
preme Court Chief Justice Rehnquist and Justice Kennedy, expressed
vehement opposition to the amendment. The Judicial Conference of
the United States voted unanimously to support overturning the law.
One of the boldest responses came from U.S. District Court judge
Sterling Johnson, Jr., who issued an order forbidding Congress from
examining any of the court documents required in the amendment
without his approval.59
Some judges expressed their outrage in open court. Judge Guido
Calabresi of the U.S. Court of Appeals for the Second Circuit ad-
dressed the prosecutor during an oral argument: ‘‘You’re telling me
that the system we have set up, that has been set up by Congress, which
removes discretion from the judges, has given discretion to your
office. . . . This case is a perfect example of you telling me that your
office made some decisions with respect to what is right and just and
true, and the district court is thereby prohibited from having any say in
the matter.’’60 Before the assistant U.S. attorney could respond, Judge
Robert Miner, another judge on the panel hearing the case stated that
if the panel didn’t follow the prosecutor’s recommendations, the
prosecutor would ‘‘probably take our names and report them to the
attorney general.’’ Another judge on the panel facetiously added, ‘‘Be

sure you spell them correctly.’’61
The Feeney Amendment not only reinforced prosecutorial power
and control over the sentencing process, but it arguably threatened one
of the most basic constitutional tenets of democratic government—the
separation of powers. The Feeney Amendment was in direct conflict
with and in violation of the doctrine of separation of powers. It re-
quired judges to report and explain their decisions to both the exec-
utive and legislative branches of government.
One court found a portion of the Feeney Amendment to be
unconstitutional, in part because it violated the separation of powers
doctrine. On January 12, 2004, U.S. District Court judge Dickran
Tevrizian of the Central District of California concluded that section
401(l)(1)(2) and (3) (Report by Attorney General) and the attorney
general’s memorandum of July 28, 2003, offends ‘‘judicial indepen-
dence by allowing individual judges to be singled-out, threatened,
intimidated and targeted.’’62 Section 401, the judge wrote, ‘‘chills and
stifles judicial independence to the extent that it is constitutionally
prohibited. The chilling effect resulting from such reporting require-
ments is sufficient to violate the separation of powers limitations of the
U.S. Constitution.’’63
There have been many legal challenges to various provisions of the
Federal Sentencing Guidelines,64 and although the Supreme Court on
occasion upheld some defense challenges to the guidelines,65 it re-
peatedly upheld their constitutionality.66 However, on July 12, 2005,
the Supreme Court issued its decision in United States v. Booker.67 Not
only does the Booker decision make the Feeney Amendment irrelevant
but also it has the potential to fundamentally change federal sentencing
by returning discretion to federal judges.
THE EFFECT OF BOOKER

ON PROSECUTORIAL POWER
In Booker, the Court held that the Federal Sentencing Act was un-
constitutional, in that it required the judge to sentence a defendant to
a period of incarceration higher than the statutory maximum upon
the judge’s determination of certain facts by a preponderance of the
evidence. Before Booker, the guidelines required judges to enhance the

defendant’s sentence above the maximum sentence for charges to
which the defendant pled guilty or that he was convicted of beyond a
reasonable doubt, as long as the judge made a determination of certain
facts by a preponderance of the evidence. The Supreme Court found
that this requirement violated the defendant’s Sixth Amendment right
to a jury trial. The Court remedied the constitutional violation by
severing the section of the Federal Sentencing Act that made the
guidelines mandatory. Booker requires judges to consider the guidelines
but allows them to depart as long as they give reasons. Sentences may
be appealed and overturned for unreasonableness.
Because Booker no longer requires judges to slavishly follow the
guidelines when sentencing defendants, the prosecutor’s charging and
plea bargaining decisions, at least in theory, do not necessarily prede-
termine the outcome of most criminal cases in federal court. None-
theless, Booker may not significantly alter federal prosecutorial power.
Much depends on the extent to which federal judges continue to follow
the guidelines. Booker permits judges to continue to mete out the sen-
tences suggested by the guidelines and in fact requires them to consider
them. In the months immediately following the Court’s ruling, federal
judges continued to sentence defendants within the guideline range,
with a few exceptions.68
After Booker was decided, federal prosecutors expressed concern
that the decision would hamper their ability to plea bargain. Some
suggested that because defendants knew that judges could depart from
the guidelines, they might decide to take their chances at trial and
attempt to persuade the judge to depart from the guidelines if they
were convicted of more charges than the prosecutor offered in the plea
bargain.69 This concern seems unfounded. It is highly unlikely that if a
defendant went to trial and was convicted of numerous counts of
distribution of cocaine, for example, the judge would sentence him to
significantly less time than the guidelines suggest—especially if the
prosecutor had offered the defendant a plea to lesser charges.
Booker will probably have its greatest effect on section 5K1.1
‘‘substantial assistance’’ motions. Before Booker, this section provided
that judges could reward a defendant for cooperating with the gov-
ernment only if prosecutors filed a motion stating that the defendant
had provided substantial assistance in the investigation or prosecution of
another person. Judges in a post-Booker world may now depart based on
a defendant’s cooperation, even if the prosecutor declines to file such a

motion, providing potential relief for defendants like Mark Forney.
In sum, it is unlikely that Booker will have a noticeable effect on
how prosecutors conduct business in the federal system or on the
impact of their decisions. They will continue to have unfettered
charging and plea bargaining discretion and those decisions will con-
tinue to greatly influence the outcome in all criminal cases, even those
in which judges decide to depart. Judges will continue to consult the
guidelines before sentencing, and will probably follow them in most
cases. However, Booker now permits judges to exercise discretion in
cases where justice cries out for a departure.
THE ATTORNEY GENERAL
The attorney general is the chief prosecutor for the entire nation. In
principle, he or she has supervisory authority over all of the U.S.
attorneys and the AUSAs who work in each office. In practice, much
like that of the chief district attorneys on the state level, the authority
the attorney general exercises depends on his or her management style
and how much discretion he or she chooses to impart to each of the
ninety-three U.S. attorneys. Several attorneys general in recent history
have wielded their power freely, making decisions that have affected
not only the U.S. attorneys under their authority but also the nation as
a whole. These decisions range from issuing memoranda dictating
policies and practices in the U.S. attorneys’ offices across the country
to implementing courses of action that affect individual citizens and
residents in their daily lives. Should a single individual who is not
directly accountable to the people wield such expansive power? Might
the exercise of this broad power and discretion by attorneys general
produce unwarranted disparities or other abuses? This section explores
these issues by examining some of the decisions made by two former
attorneys general—Richard Thornburgh and John Ashcroft.
The Thornburgh Memo
Richard Thornburgh, who served as attorney general from 1988 to

1991, was responsible for one of the most controversial decisions by an
attorney general for the United States. In 1989, Thornburgh issued a

memorandum to all of the U.S. attorneys that declared that internal
Justice Department rules and policies preempted the ethical rules of the
states in which federal prosecutors practiced. Known as the Thorn-
burgh Memo, it specifically exempted federal prosecutors from rule
4.2 of the ABA Model Rules of Professional Conduct, which states:
‘‘In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court
order.’’70 The organized bar strongly opposed the Thornburgh Memo,
and in 1990, the ABA House of Delegates passed a formal resolution
denouncing it. Courts also rejected Thornburgh’s rule.71 Attorney
General Janet Reno reissued the Thornburgh Memo as a proposed
rule for public comment in July 1993, and it was codified in a series of
regulations in 1994. This version softened the Justice Department’s
original stance, but, under certain circumstances, continued to allow
contact with represented persons.72
Thornburgh issued the memorandum in response to complaints by
defense attorneys across the country that federal prosecutors were vi-
olating a sacrosanct ethical rule, namely, the rule prohibiting a lawyer
from communicating with a party in a civil or criminal case who is
represented by counsel. Defense attorneys claimed that prosecutors
were communicating with criminal defendants who had pending
charges without the consent or knowledge of their attorneys. Almost
all states have ethical rules prohibiting this behavior, but federal
prosecutors routinely ignored these rules. Thornburgh responded to
the widespread, vehement opposition to the practice by issuing a
memorandum unilaterally declaring that federal prosecutors were
exempt from following state ethical rules.
It literally took an act of Congress to overcome the Thornburgh
Memo. In 1998, Congress passed the Citizens Protection Act (CPA),
which states, in part, that ‘‘[a]n attorney for the Government shall be
subject to State laws and rules, and local Federal court rules, governing
attorneys in each State where such attorney engages in that attorney’s
duties, to the same extent and in the same manner as other attorneys in
that State.’’73 Despite its sweeping language, the CPA has provided
very little control over prosecutors, because defense attorneys and
judges rarely refer prosecutors to bar counsel for unethical behavior.74
John Ashcroft
Post–September 11 Powers
The bombing of the World Trade Center and the Pentagon on
September 11, 2001, presented John Ashcroft with one of the greatest
challenges to any attorney general in American history. Characterized
as an act of war against Americans on American soil, the terrorist acts of
September 11 not only gave rise to two wars75 but resulted in a drastic
curtailment of the civil liberties of many innocent American citizens
and residents. Ashcroft was largely responsible for initiating and im-
plementing policies and legislation that not only diminished civil
liberties but also vastly expanded prosecutorial power.
Just two weeks after September 11, 2001, Ashcroft submitted
written testimony to Congress requesting sweeping new powers to
fight the ‘‘War on Terrorism.’’ About a month later, on October 26,
2001, Congress passed the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act),76 and President Bush signed it into law
the following day. The speed with which the law was passed was
rivaled only by its length and breadth. It is over three hundred pages
long. The expanded powers it authorizes include searches and seizures
without a warrant or even prior notice; interception of email, internet
communications, and voicemail; expansion of roving wiretaps without
prior judicial authority; and monitoring of confidential attorney-client
communications. Opposition to the Patriot Act was vehement and
widespread, even among the politically conservative.77 Among the
criticisms voiced was a concern that the Act would be used as an end
run around constitutional requirements in ordinary domestic criminal
cases. Newt Gingrich, former Republican Speaker of the House,
expressed the following view:
I strongly believe Congress must act now to rein in the Patriot

Act, limit its use to national security concerns and prevent
it from developing ‘‘mission creep’’ into areas outside of na-
tional security. Similarly, if prosecutors lack the necessary
legislation to combat other serious domestic crimes, crimes not
connected to terrorism, then lawmakers should seek to give
prosecutors separate legislation to provide them the tools they
need, but again not at the expense of civil rights. But in no case
should prosecutors of domestic crimes seek to use tools in-
tended for national security purposes.78
Rep. Dick Armey, Republican former House Majority Leader
and Chair of the House Select Committee on Homeland Se-
curity, stated, ‘‘I told the President I thought his Justice De-
partment was out of control. . . . Are we going to save ourselves
from international terrorism in order to deny the fundamen-
tal liberties we protect to ourselves? . . . It doesn’t make sense
to me.’’79
The concerns expressed by these conservative critics were proven

to be well founded. A study by the General Accounting Office reported
that 75 percent of the convictions the Justice Department classified as
‘‘international terrorism’’ were wrongly labeled and that many dealt
with common domestic crimes like document forgery.80 Many sus-
pected that Ashcroft used the tragic events of September 11 as an op-
portunity to expand prosecutorial and law enforcement power beyond
constitutional limits. According to Elliot Mincberg, legal director for
People for the American Way, ‘‘[w]hat the Justice Department has re-
ally done is to get things put into the law that have been on prosecu-
tors’ wish lists for years. They’ve used terrorism as a guise to expand law
enforcement powers in areas that are totally unrelated to terrorism.’’81
The Patriot Act was by no means Ashcroft’s only tool for ex-
panding prosecutorial power. When the perpetrators of the September
11 bombings were identified as members of the terrorist group Al
Qaeda, Ashcroft began a sweeping, large-scale detention of innocent
Arab and Middle Eastern men living in the United States. His first act
was to round up and arrest over a thousand men on unspecified
charges. Almost all were of Middle Eastern descent. Ashcroft declined
to release any information about them, only indicating that some were
believed to be members of the Al Qaeda terrorist network. Many of
these men were not allowed to see their families or consult with
attorneys. On November 27, 2001, Ashcroft announced that 603 of
these men were still in custody—548 charged with immigration vio-
lations and 55 charged with unspecified federal crimes.82 He claimed
that some were material witnesses but would provide no further in-
formation, claiming national security concerns and even contending
that he was protecting the privacy of the detainees.
Ashcroft simultaneously engaged in an even broader racial profil-

ing policy that targeted a larger group of Middle Eastern men. On
November 9, 2001, he asked local law enforcement agents to help
round up and interrogate approximately five thousand Middle Eastern
men. These men, listed by name, had all entered the United States
from Middle Eastern countries on student, tourist, or work visas. None
were suspected of terrorist or other criminal activity. Ashcroft was
immediately criticized for engaging in racial profiling but denied the
accusation, claiming that he chose these men not because of their race
or ethnicity but because they were from countries with a known Al
Qaeda presence.
Although some local police departments cooperated with Ashcroft,
several declined. The Portland, Oregon, police chief was among the
latter. He noted that complying with Ashcroft’s request would violate
his department’s policy against racial profiling. It also would violate
local laws that prohibit police officers from acting as immigration
officers and from collecting information on any individual or group
not suspected of criminal activity. Police departments in Arizona and
California took similar positions. Most local departments complied
with Ashcroft’s request. Some chose to send letters of invitation to the
men in their jurisdiction with a policy of ending the interrogation if
and when the men declined to answer a question.
Ashcroft claimed that the purpose of the interrogations was to
compile intelligence against Al Qaeda operatives by asking the indi-
viduals whether they had knowledge of persons involved with the
organization or the events of September 11. But some individuals
report that they were asked questions about whether they supported
the attacks of September 11 or the Al Qaeda network. Others were
asked personal questions about their religion, finances, and personal
habits. Arab American and Muslim organizations criticized the policy
as a blatant form of racial profiling. Other critics noted the policy’s
resemblance to the McCarthyism of the 1950s and its ineffectiveness in
fighting terrorism.
Despite broad criticism, Ashcroft persisted in practices designed to
detain even larger numbers of Middle Eastern men. On January 25,
2002, Deputy Attorney General Larry Thompson sent a memorandum
to antiterrorism officials announcing that the Justice Department
would seek to detain and interrogate approximately 6,000 men of
Middle Eastern descent who were on a much larger list of 314,000
so-called absconders—individuals who had ignored preexisting de-

portation orders.83 The vast majority of these ‘‘absconders’’ were from
Latin American countries, but Thompson was clear that agents should
seek out the six thousand Middle Eastern ones. He also indicated that
prosecutors should seek to charge them with any applicable criminal
offense so they could be detained and interrogated rather than sent to
their home countries in compliance with the outstanding deportation
orders.84 Thompson urged law enforcement agents to offer money
and/or so-called S-visas (‘‘snitch visas’’) in exchange for valuable in-
formation about the Al Qaeda network or other terrorist organiza-
tions.85 Khalil E. Jahshan, vice president of the American-Arab Anti-
Discrimination Committee, criticized the policy as a clear form of
racial profiling,86 as did legal scholars, who noted the unconstitution-
ality of selectively prosecuting individuals of a certain race.87
Controlling Plea Bargaining

Ashcroft frequently exerted his power in matters unrelated to terror-
ism and national security. In a memorandum issued to all U.S. attorneys
in September 2003, he directed them to charge defendants with ‘‘the
most serious, readily provable offense’’ in every case and strictly lim-
ited the discretion of AUSAs to offer plea bargains.88 The memo-
randum defined the most serious offenses as ‘‘those that generate the
most substantial sentence under the Sentencing Guidelines, unless a
mandatory minimum sentence or count requiring a consecutive sen-
tence would generate a longer sentence.’’89 Ashcroft claimed that the
purpose of this memorandum was to assure that the Federal Sentencing
Guidelines would be implemented exactly as written and to counter
lenient sentencing practices by federal judges.90
Ashcroft’s directive provoked harsh criticism from a variety of
sources, including federal prosecutors themselves. The requirement
that prosecutors seek the most serious charges in every case and the
prohibition against dismissing charges pursuant to plea bargains except
under very narrow circumstances could have provoked a vast increase
in jury trials. Since well over 90 percent of federal cases were resolved
through pleas before Ashcroft’s memorandum, his directive could not
have been carried out without a drastic increase in federal prosecutors,
judges, defense attorneys, and courts.91 The memorandum ultimately
was amended to permit federal prosecutors to make exceptions with

the approval of a supervisor.
The Sniper Trials

Ashcroft’s handling of the ‘‘sniper’’ cases in the Washington, D.C.,
area presents another example of his authoritarian style. John Allen
Muhammad, a forty-one-year old man, and John Lee Malvo, his
seventeen-year-old companion, were arrested for a series of frighten-
ing ‘‘sniper’’-style shootings in the Washington area and beyond.
Thirteen people were killed, and six were wounded, with most of
the shootings in Maryland and others spread between the District of
Columbia, Virginia, Alabama, Georgia, Louisiana, and Washington.
Although the prosecutors in each of these localities were capable of
handling these cases, Ashcroft filed charges against Muhammad and
Malvo under the Hobbs Act, a 1946 antiracketeering law that makes
robbery or extortion a federal offense when it obstructs interstate
commerce.92 Since the suspects allegedly delivered a note demanding
$10 million and police searches tied up federal highways, Ashcroft used
the Hobbs Act to obtain custody of them. Clearly Ashcroft would
never consider prosecuting Muhammad and Malvo for mere extortion
when there was evidence that they had committed at least twelve
murders. Instead, he used the Hobbs Act arrest as a pretense to gain
custody of the suspects, attempt to interrogate them, and, most impor-
tant, assure that they were prosecuted for murder in a state where they
would most likely be executed. Just nine days after they were taken into
federal custody, Ashcroft dismissed the federal charges and dispatched
them to Virginia—among the choices, the state with the highest execu-
tion record. In essence, Ashcroft filed federal charges solely to gain
control over the defendants and to shop for the jurisdiction of his choice.
Ashcroft boldly proclaimed his motives. Maryland prohibits the
death penalty for juveniles, and at the time of the arrests, there was a
moratorium on the death penalty in Maryland.93 Virginia, on the other
hand, ranks second in the nation for the number of people put to death
since the death penalty was reinstated by the Supreme Court in 1976,
and three of them were juveniles at the time they committed their
crimes.94 ‘‘We believe the first prosecutions should occur in those
jurisdictions that provide the best law, the best facts and the best range
of available penalties,’’ Ashcroft said.95 On the subject of the death

penalty, he stated, ‘‘It is appropriate. It is imperative that the ultimate
sanction be available.’’96
Forum shopping, or choosing a jurisdiction, court, or judge to
achieve a particular outcome, is frowned on in the legal profession, and
even considered unethical by some legal scholars.97 Yet the attorney
general, the top law enforcement officer in the nation, blatantly en-
gaged in this behavior. With the exception of some criticism in legal
circles and the media,98 his behavior was never challenged. There is
absolutely no authority for an attorney general choosing the state
where a suspect will be prosecuted and tried. The fact that Ashcroft
filed pretextual Hobbs Act charges to accomplish his goals indicates the
impropriety of his actions. Yet he suffered no consequences.
CONCLUSION
The U.S. Constitution guarantees all citizens certain basic freedoms

and civil rights. Although states have the power to pass their own state
constitutions and may even afford citizens of their states more rights
than those guaranteed by the federal constitution, they may not curtail
the rights guaranteed by the U.S. Constitution. Basic concepts of
federalism assure that state and federal governments operate within
their own spheres without interfering with each other or exerting
power or control over each other.99
The relationship between state and federal prosecutors has not
traditionally conformed to the basic federalist concept of noninter-
ference. As a result of the huge increase in the number of federal
crimes, federal prosecutors now exercise simultaneous jurisdiction
with state prosecutors over large numbers of crimes, and, in practice,
the feds have the upper hand. They choose the cases they want to
prosecute, and the vague, nonbinding language of the U.S. attorneys’
manual permits them to make these choices arbitrarily and without
accountability. Although state and federal prosecutors may sometimes
work cooperatively, state prosecutors often bow to the wishes of their
federal counterparts, without recourse. The U.S. attorneys are ac-
countable to the attorney general, who is accountable, at least in
theory, to the president. In practice, he or she is accountable to no one,
since the president of the United States rarely interferes with matters
that do not involve national security, and at any rate, certainly not with
ordinary criminal prosecutions in the Justice Department. In the ab-
sence of major reform, federal prosecutors and the attorney general
will continue to exercise broad, far-reaching power without effective
accountability to the people they are obligated to serve.
SEVEN
Prosecutorial Misconduct: The Abuse

of Power and Discretion
Brian was a fifteen-year-old African American boy charged in the

District of Columbia juvenile court with assault with intent to kill,
burglary, and related charges. The government claimed that Brian and
two adult men had severely beaten an older man during a burglary of
his home. Brian’s adult codefendants were charged with the same
offenses and faced up to life in prison in adult court, where the office of
the U.S. attorney for the District of Columbia prosecuted them.1 As a
juvenile, the Office of the Corporation Counsel prosecuted Brian,2
and he faced a maximum punishment of two years in the juvenile
correctional facility upon conviction. The juvenile court rules pro-
tected his anonymity and offered the possibility of rehabilitative
treatment if needed.
The AUSA handling the case against the adult codefendants sought
Brian’s assistance in their prosecution. He contacted the assistant
corporation counsel in charge of Brian’s case and Brian’s court-
appointed attorney to arrange an ‘‘off-the-record’’ conversation. The
prosecutor hoped to secure Brian’s cooperation in the prosecution of
the adults in exchange for lenient treatment, including possible dis-
missal of Brian’s case. During the meeting, the prosecutor questioned
Brian about the events surrounding the assault and burglary. Brian’s
attorney and mother were present during the meeting. Brian denied
that either he or the adult codefendants had participated in the crimes.
123
The prosecutor expressed his displeasure with Brian’s denials and

pressured him to testify that the adults were involved. When Brian
refused to submit to pressure, the prosecutor threatened to charge
Brian as an adult if he declined to testify against the codefendants,
warning him that he could receive a life sentence in an adult prison if
convicted in adult court. Brian maintained that he knew nothing
about the offenses, and the meeting ended without a deal. Soon
thereafter, the prosecutor made good on his threats. The juvenile case
was dismissed, and Brian was charged as an adult.
I was appointed to represent Brian in adult court. He immediately
told me about the meeting with the prosecutor. I interviewed his
mother, who verified the prosecutor’s threats and expressed her shock
and dismay at what the prosecutor had done. ‘‘Can he get away with
that?’’ she asked. I agreed that his behavior was unscrupulous, and after
consulting with other lawyers at PDS, I decided to file a motion to
dismiss the indictment for prosecutorial vindictiveness.
The judge assigned to Brian’s case scheduled a hearing, and Brian’s
mother testified. She described the prosecutor’s threats in great detail,
explaining how he had yelled at Brian and had threatened to charge
Brian as an adult if he did not corroborate the government’s story that
he had helped the two adults beat and rob the complainant. The
prosecutor representing the government at the hearing was not the
same prosecutor who had threatened Brian. To my surprise, he de-
clined to cross-examine Brian’s mother. Instead, he began to argue, in
a very dismissive manner, that Brian’s mother was lying and that the
threats were never made. The judge interrupted the prosecutor’s ar-
gument and asked whether he planned to present any evidence. The
prosecutor appeared surprised and informed the judge that he would
just ‘‘make representations’’ as an officer of the court. This prosecutor
apparently believed that he was not required to present testimony
under oath and that the judge should simply accept his word to rebut
the testimony of Brian’s mother. When it became clear that the judge
planned to follow the rules of evidence and only consider the undis-
puted testimony of Brian’s mother, the prosecutor asked if he might
have additional time to locate the prosecutor and present his testi-
mony. The judge declined his request.
The hearing ended late on a Friday afternoon, and Brian’s trial was
scheduled to begin the following Monday morning. The judge de-
clined to rule on the motion, indicating that she would take the matter
PROSECUTORIAL MISCONDUCT 125
under advisement. I warned my client and his mother that they should
not get their hopes up, that these motions were rarely granted, and that
we should prepare to start the trial on Monday.
On the following Monday morning, the case was called, and my
client and I joined the adult codefendants and their lawyers at counsel
table. The case had been assigned to another judge. He looked in my
client’s court file and announced, ‘‘Ms. Davis, your client’s case has
been dismissed. There is an order issued by Judge Williams granting
your motion to dismiss the indictment for prosecutorial vindictive-
ness.’’ I was shocked. Although I had challenged prosecutorial mis-
conduct on many occasions during my years as a public defender, this
was the only time a judge granted the relief I had requested.
The vindictiveness in Brian’s case is just one of the many forms of
prosecutorial misconduct and is by no means the most common.
Numerous articles and books have been written about prosecutorial
misconduct.3 Such misconduct may take many forms, including:
Courtroom misconduct (making inappropriate or inflam-

matory comments in the presence of the jury; introducing or
attempting to introduce inadmissible, inappropriate or in-
flammatory evidence; mischaracterizing the evidence or the
facts of the case to the court or jury; committing violations
pertaining to the selection of the jury; or making improper
closing arguments);
Mishandling of physical evidence (hiding, destroying or
tampering with evidence, case files or court records);

Failing to disclose exculpatory evidence;
Threatening, badgering or tampering with witnesses;
Using false or misleading evidence;
Harassing, displaying bias toward, or having a vendetta against
the defendant or defendant’s counsel (including selective or

vindictive prosecution, which includes instances of denial of a
speedy trial); and
Improper behavior during grand jury proceedings.4
I do not attempt to present a comprehensive discussion of prose-

cutorial misconduct in this one chapter, as such a task would be
impossible in light of the breadth of the problem. Instead, I attempt to
demonstrate that the line between legal prosecutorial behavior and
illegal prosecutorial misconduct is a thin one. I explore whether a

number of factors, including the Supreme Court’s jurisprudence and
the prosecutorial culture of power and lack of accountability, create a
climate that fosters misconduct. I focus on Brady violations—the most
common form of misconduct—and examine how and why prosecu-
tors continue to engage in illegal behavior with impunity.
THE BREADTH OF THE PROBLEM
Much of what passes for legal behavior might in fact be illegal, but
because prosecutorial practices are so rarely challenged, it is difficult to
define the universe of prosecutorial misconduct. Because it is so dif-
ficult to discover, much prosecutorial misconduct goes unchallenged,
suggesting that the problem is much more widespread than the many
reported cases of prosecutorial misconduct would indicate. As one
editorial described the problem, ‘‘[i]t would be like trying to count
drivers who speed; the problem is larger than the number of tickets
would indicate.’’5
One of the most comprehensive studies of prosecutorial miscon-
duct was completed in 2003 by the Center for Public Integrity, a
nonpartisan organization that conducts investigative research on public
policy issues. A team of twenty-one researchers and writers studied the
problem for three years and examined 11,452 cases in which charges of
prosecutorial misconduct were reviewed by appellate court judges. In
the majority of cases, the alleged misconduct was ruled harmless error
or was not addressed by the appellate judges. The Center discovered
that judges found prosecutorial misconduct in over two thousand
cases, in which they dismissed charges, reversed convictions, or re-
duced sentences.6 In hundreds of additional cases, judges believed that
the prosecutorial behavior was inappropriate but affirmed the con-
victions under the ‘‘harmless error’’ doctrine.7
The cases investigated by the Center for Public Integrity only
scratch the surface of the issue, as they only represent the cases in
which prosecutorial misconduct was discovered and litigated. Most of
the prosecutorial practices that occur behind closed doors, such as
charging and plea bargaining decisions and grand jury practices, are
never revealed to the public. Even after cases are indicted, defense
attorneys are not entitled to discover what occurred behind the scenes.
In the rare cases in which practices that appear to be illegal are dis-
covered, it is often impractical to challenge them, in light of the Su-
preme Court’s pro-prosecution decisions on prosecutorial misconduct.
Of course, there is no opportunity to challenge any misconduct that
may have occurred in the over 95 percent of all criminal cases which
result in a guilty plea, since defendants give up most of their appellate
rights when they plead guilty.
Why is prosecutorial misconduct so widespread and how did it
reach this stage? An examination of the Supreme Court’s jurispru-
dence in this area may shed some light. The Court has shielded
prosecutors from scrutiny in a series of cases that have narrowly de-
fined the universe of behaviors that constitute prosecutorial miscon-
duct and the circumstances under which victims of such behaviors are
entitled to relief. Might these cases have emboldened prosecutors to
engage in misconduct, since they know that even if their behavior is
discovered and challenged, courts will most likely find the behavior to
be ‘‘harmless error?’’ This chapter will consider these questions.
THE SUPREME COURT—PROTECTING

PROSECUTORIAL POWER
The Supreme Court has established nearly impossible standards for

obtaining the necessary discovery to seek judicial review of some forms
of prosecutorial misconduct.8 Inappropriate or unethical charging
decisions, intimidating conversations with witnesses, selective and
vindictive prosecutions, and grand jury abuse all occur in the privacy
of prosecution offices—away from the public and the parties whose
cases are affected by the harmful behavior. As a result of the Supreme
Court’s rulings,9 prosecutors know that it is highly unlikely that any of
these behaviors will be discovered by defense attorneys or anyone who
might challenge them.
On the rare occasion when such misconduct is discovered, judicial
review is extremely limited. Under the harmless error rule, appellate
courts affirm convictions if the evidence supports the defendant’s guilt,
even if she did not receive a fair trial.10 This rule permits, perhaps even
unintentionally encourages, prosecutors to engage in misconduct
during trial with the assurance that so long as the evidence of the
defendant’s guilt is clear, the conviction will be affirmed.
In addition to its constitutional power to reverse lower court

convictions, the Supreme Court’s supervisory authority to oversee the
implementation of criminal justice grants the Court powers to regulate
lower court procedures. For example, in McNabb v. United States, the
Court concluded that when determining the admissibility of evidence,
it obeys the Constitution, and, under its power of judicial supervision,
formulates ‘‘civilized standards of procedure and evidence.’’11 These
standards are to be applied in federal criminal prosecutions, in an effort
to deter governmental misconduct and preserve judicial integrity. The
Court’s standards are satisfied by more than simple adherence to due
process laws and are derived from considerations of ‘‘evidentiary re-
levance’’ and justice.12
In United States v. Russell,13 however, the Supreme Court drasti-
cally curtailed the supervisory power doctrine by reversing a lower
court’s use of the power in a case involving questionable law en-
forcement tactics. The Court invoked the separation of powers doc-
trine as it warned lower courts not to meddle in the business of law
enforcement.14 In a further effort to limit the reach of a federal court’s
supervisory power, in United States v. Hasting, the Court held that
judges may not use the supervisory power doctrine to reverse convic-
tions because of prosecutorial misconduct in cases involving harmless
error.15
Civil lawsuits have proven equally ineffective as remedies for pros-
ecutorial misconduct. The Supreme Court established a broad rule of
absolute immunity from civil liability for prosecutors in Imbler v. Pacht-
man.16 This rule immunizes prosecutors from liability for acts ‘‘intimately
associated with the judicial phase of the criminal process.’’17 The Court
expressed concern that prosecutors might be deterred from zealously
pursuing their law enforcement responsibilities if they faced the possi-
bility of civil liability and suggested that prosecutorial misconduct should
be referred to state attorney disciplinary authorities.
The Supreme Court’s decision to avoid the problem and pass it on
to state bar authorities has proven totally ineffective.18 All attorneys,
including prosecutors, must abide by their state’s Code of Professional
Responsibility. Attorneys who violate the Code are subject to various
forms of discipline, including disbarment. However, the Center for
Public Integrity found only forty-four cases since 1970 in which pros-
ecutors faced disciplinary proceedings for misconduct that infringed
on the constitutional rights of criminal defendants. The misconduct in

these cases included:
Discovery violations;
Improper contact with witnesses, defendants, judges or jurors;
Improper behavior during hearings or trials;
Prosecuting cases not supported by probable cause;
Harassing or threatening defendants, defendants’ lawyers or
witnesses;
Using improper, false or misleading evidence;
Displaying a lack of diligence or thoroughness in prosecution;
and
Making improper public statements about a pending criminal
matter.19
Out of the 44 attorney disciplinary cases,
In 7, the court dismissed the complaint or did not impose a

punishment.
In 20, the court imposed a public or private reprimand or
censure.
In 12, the prosecutor’s license to practice law was sus-
pended.
In 2, the prosecutor was disbarred.
In 1, a period of probation was imposed in lieu of a harsher
punishment.
In 24, the prosecutor was assessed the costs of the disci-
plinary proceedings.
In 3, the court remanded the case for further proceedings.20
For many years, federal prosecutors refused to abide by state dis-

ciplinary rules. As mentioned earlier, in 1989, the Thornburgh Memo
declared that federal prosecutors would abide by internal Justice De-
partment rules rather than the ethical rules of the state in which they
practiced.21 Although this memorandum was overturned by the Cit-
izens Protection Act of 1998, the Act simply returned prosecutors to
the status quo, which has proven highly ineffective in deterring or
punishing misconduct.22
It is not surprising that very few prosecutors are referred to state

disciplinary authorities. In many ways, the phenomenon brings to
mind the old saying ‘‘If you shoot at the king, you’d better kill him.’’
Since over 95 percent of criminal cases result in guilty pleas,23 every
defense attorney knows that her future clients are at the mercy of the
prosecutor, whose unfettered discretion determines what plea offers
will be made and to whom. Challenging the bar license of an official
who holds all the cards is risky business, especially given the odds of
prevailing. Prosecutors are powerful and often popular political fig-
ures. Even when referrals are made, bar authorities frequently decline
to recommend serious punishment, as the statistics from the Center for
Public Integrity indicate.24 Thus, referring prosecutors to state bar
authorities has proven to be a dismal failure.25
The Court’s rulings have sent a very clear message to prosecutors—
we will protect your practices from discovery; when they are dis-
covered, we will make it extremely difficult for challengers to prevail;
and as long as you mount overwhelming evidence against defendants,
we will not reverse their convictions if you engage in misconduct at
trial. Prosecutors are well aware of these facts, and although they may
not always intentionally set out to engage in misconduct, it leads one
to question whether the Supreme Court has provided prosecutors with
a comfort zone that fosters and perhaps even encourages a culture of
wrongdoing.
BRADY VIOLATIONS: WITHHOLDING

EXCULPATORY EVIDENCE
The obligation of a prosecutor to reveal favorable, exculpatory in-

formation about a criminal defendant is not only fair; it is a constitu-
tional requirement. In Brady v. Maryland,26 the Supreme Court held that
a prosecutor’s failure to disclose evidence favorable to the defendant
violated due process rights when the defendant had requested such
information. The Court expanded this rule in United States v. Agurs,27
requiring prosecutors to turn over exculpatory information to the de-
fense even in the absence of a request if such information is clearly
supportive of a claim of innocence.28 Professional ethical and disciplin-
ary rules in each state and the District of Columbia reiterate and re-
inforce the duty to turn over information. The obligation to reveal
Brady information is ongoing and is not excused even if the prosecutor

acts in good faith.
Brady violations are among the most common forms of prosecu-
torial misconduct. Because the obligation is expansive, continuing, and
not limited by the good faith efforts of the prosecutor, great potential
for wrongdoing exists. The failure to provide Brady information can
have dire consequences for the defendant. In capital cases, Brady vio-
lations have resulted in the execution of arguably innocent persons. At
the very least, withholding Brady information can determine the
outcome of a trial.
Ken Armstrong and Maurice Possley, staff writers for the Chicago
Tribune, conducted a national study of eleven thousand cases involv-
ing prosecutorial misconduct between 1963 and 1999.29 The study
revealed widespread, almost routine, violations of the Brady doctrine
by prosecutors across the country.30 They discovered that since 1963,
courts had dismissed homicide convictions against at least 381 defen-
dants because prosecutors either concealed exculpatory information
or presented false evidence.31 Of the 381 defendants, 67 had been
sentenced to death.32 Courts eventually freed approximately 30 of the
67 death row inmates, including two defendants who were exonerated
by DNA tests.33 One innocent defendant served twenty-six years be-
fore a court reversed his conviction.34 Armstrong and Possley suggest
that this number represents only a fraction of cases involving this type
of prosecutorial misconduct, since the study only considered cases
where courts convicted the defendant of killing another individual.35
They also reported that the prosecutors who engaged in the reported
misconduct were neither convicted of a crime nor barred from prac-
ticing law.36
Another study by Bill Moushey of the Pittsburgh Post-Gazette found
similar results.37 In his examination of over fifteen hundred cases
throughout the nation, Moushey discovered that prosecutors routinely
withhold evidence that might help prove a defendant innocent.38 He
found that prosecutors intentionally withheld evidence in hundreds of
cases during the past decade, but courts overturned verdicts in only the
most extreme cases.39
Few defense attorneys have the time, resources, or expertise to
conduct massive investigations of prosecution officials. Nor should the
discovery of prosecutorial misconduct depend on investigative re-
porting. However, the current law and practices result in the random
and infrequent discovery of Brady violations. Even when discovered,

remedies for the accused are inadequate, and punishment of the of-
fending prosecutor is rare.
MISCONDUCT THAT LEADS

TO A DEATH SENTENCE
Prosecutorial misconduct in any case is reprehensible and can lead to

the wrongful conviction of the innocent. When misconduct occurs in
a capital case, however, the stakes are the highest because an innocent
person might be sentenced to death. In fact, prosecutorial misconduct
has been discovered in an extraordinary number of capital cases.40
Although various types of misconduct have been reported in capital
cases, a high percentage of these cases, 16–19 percent,41 involve Brady
violations. Delma Banks’s case is one example.42 The misconduct in
Banks’s case was so egregious that even the U.S. Supreme Court,
which had been unreceptive to claims of prosecutorial misconduct in
the past, provided relief.43
In 1980, Texas authorities charged Delma Banks with the death of
sixteen-year-old Richard Whitehead. Prior to Banks’s trial, the pros-
ecutor informed Banks’s defense attorney that he had turned over all
discoverable information.44 In fact, the prosecutor failed to reveal key
exculpatory information about two of its primary witnesses—Charles
Cook and Robert Farr. During the trial, Cook testified that Banks had
confessed to killing Whitehead and that he had seen Banks with blood
on his leg and in possession of a gun soon after Whitehead’s death.45
On cross-examination, Cook denied that he had rehearsed his testi-
mony with law enforcement officials.46 Farr testified during the trial
as well and corroborated key aspects of Cook’s testimony.47 During
Farr’s cross-examination, he denied that law enforcement officials had
promised him anything in exchange for his testimony.48 Farr also
testified during the penalty phase of Banks’s trial in support of his death
sentence.49 Banks was sentenced to death.50
Banks filed several postconviction motions in Texas state courts.51
The court denied the first two motions on grounds unrelated to al-
leged Brady violations, but the third motion alleged that the prosecutor
had failed to reveal exculpatory information about Cook and Farr.52
The third motion was denied, but Banks raised the allegations of Brady
violations again in 1996 in a petition for a writ of habeas corpus in the

U.S. District Court for the Eastern District of Texas.53 Prior to an
evidentiary hearing on Banks’s motion, the magistrate judge ordered
the prosecutor to turn over the prosecutor’s trial files.54 Information in
the prosecutor’s files, affidavits signed by Cook and the deputy sheriff,
and evidence uncovered at the hearing proved extraordinary and
egregious prosecutorial misconduct.55
Hidden in the prosecutor’s file was a seventy-four-page transcript
of Cook’s interrogation by law enforcement officers and prosecu-
tors.56 During this interrogation, Cook was coached repeatedly on
what to say at trial and how to reconcile his many inconsistent state-
ments.57 In his affidavit, Cook stated that he was warned that if he did
not conform his testimony to the state’s evidence, he would ‘‘spend
the rest of his life in prison.’’58 The deputy sheriff testified at the hear-
ing, and revealed, for the first time, that Farr, the other witness, was a
paid police informant who received $200 for his assistance in Banks’s
case.59
The prosecutor obviously knew that Cook’s testimony had been
coached, even scripted, and that Farr was a paid informant. These facts
were clearly exculpatory and should have been revealed to the defense
prior to trial. Furthermore, the prosecutor knew that Cook and Farr
had committed perjury when they denied these facts under oath during
the trial, yet he allowed these lies to become part of the record and
stressed them heavily in the punishment phase.60
The magistrate judge granted partial relief after the evidentiary
hearing, recommending a writ of habeas corpus as to the death sentence,
but not the guilty verdict.61 The district court adopted the magistrate’s
recommendation, but the Court of Appeals for the Fifth Circuit re-
versed the district court’s grant of partial relief to Banks.62 In March
2003, just ten minutes before Banks’s scheduled execution by lethal
injection and after he had been strapped to the gurney, the Supreme
Court issued a stay of execution while it decided whether to review
Banks’s case.
The Court ultimately decided to hear Banks’ claims and over-
turned his death sentence on February 24, 2004, by a vote of seven to
two.63 In reversing the Fifth Circuit’s decision, the Supreme Court
held that Banks had demonstrated all three elements of a Brady pros-
ecutorial misconduct claim: ‘‘The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.’’64
The Court used particularly harsh language in criticizing the prose-
cutor’s conduct:
The State here nevertheless urges, in effect, that ‘‘the prose-

cution can lie and conceal and the prisoner still has the burden
to . . . discover the evidence.’’ [. . . ] A rule thus declaring
‘‘prosecutor may hide, defendant must seek,’’ is not tenable in a
system constitutionally bound to accord defendants due pro-
cess.65
Brady violations are very common in prosecutors’ offices, even

violations as egregious as those in Banks’s case.66 The Supreme Court
and lower courts have affirmed convictions in cases involving similar
violations.67 So why did the Court provide relief for Delma Banks?
There are a number of possible explanations.
First, Banks faced death at the hands of the state in a case where
prosecutors deliberately withheld evidence. The Court has always
noted that ‘‘death is different,’’68 and has provided more protections
for defendants facing death than for others.69 The Supreme Court
undoubtedly has been affected by the growing evidence of innocent
people being freed from death row as a result of DNA evidence and
investigative reporting.70 Its death penalty jurisprudence in recent years
reflects more sensitivity to the rights of death row inmates.71
Second, the Banks case garnered widespread national attention and
support for Banks from an unusual combination of groups and indi-
viduals. One of the amicus briefs for Delma Banks was submitted by a
group of former federal judges, prosecutors, and public officials, in-
cluding federal judges John Gibbons, Timothy Lewis, and William
Sessions. Sessions is a former director of the Federal Bureau of In-
vestigation. Thomas Sullivan, a former U.S. attorney for the Northern
District of Illinois, also joined this brief; and the ABA also filed an
amicus brief.
Third, some have speculated that the Supreme Court has taken
umbrage in what it perceives as defiance of its jurisprudence by the
Court of Appeals for the Fifth Circuit.72 There is certainly language in
Banks that lends some credence to this theory. In Banks, the Court
cites and relies on its holding in Strickler v. Greene and chides the Fifth
Circuit for ignoring it: ‘‘Surprisingly, the Court of Appeals’ per curiam
opinion did not refer to Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936,
144 L.Ed.2d 286 (1999), the controlling precedent on the issue of
‘cause.’ ’’73
Regardless of its reasons, the Court’s holding in Banks is a de-
parture from its usual deference to prosecutors. It remains to be seen
whether Banks is the beginning of a trend toward holding the fire to
prosecutors’ feet or an anomaly attributable to Banks’s death row status
at a time when the death penalty is under particular scrutiny. The latter
characterization is more likely, in light of the large body of Supreme
Court jurisprudence that defers to prosecutorial power and discretion.
WHY PROSECUTORS ESCAPE PUNISHMENT
Prosecutors are rarely punished for misconduct, even when the mis-
conduct causes tremendous harm to its victims. Of the eleven thousand
cases of alleged prosecutorial misconduct examined by the Center for
Public Integrity, the appellate courts reversed convictions, dismissed
charges, or reduced sentences in just over two thousand.74 However,
in these cases, most of the prosecutors suffered no consequences and
were not held accountable or even reprimanded for their behavior.75
Ken Armstrong and Maurice Possley found the same lack of
punishment and accountability in their 1999 study:
With impunity, prosecutors across the country have violated

their oaths and the law, committing the worst kinds of de-
ception in the most serious of cases. . . . They have prosecuted
black men, hiding evidence the real killers were white. They
have prosecuted a wife, hiding evidence her husband com-
mitted suicide. They have prosecuted parents, hiding evidence
their daughter was killed by wild dogs.
They do it to win.
They do it because they won’t get punished.76
Armstrong and Possley found that a number of the prosecutors not

only totally escaped punishment or even a reprimand but also ad-
vanced in their careers.77 In the 381 cases they examined in which
appellate courts reversed convictions based on either Brady violations

or prosecutors knowingly allowing lying witnesses to testify, the courts
described the behavior in terms such as ‘‘unforgivable,’’ ‘‘intolerable,’’
‘‘beyond reprehension,’’ and ‘‘illegal, improper and dishonest.’’78 Yet,
of those cases,
[o]ne was fired, but appealed and was reinstated with back
pay. Another received an in-house suspension of 30 days. A
third prosecutor’s law license was suspended for 59 days, but
because of other misconduct in the case. . . . Not one re-
ceived any kind of public sanction from a state lawyer disci-
plinary agency or was convicted of any crime for hiding evi-
dence or presenting false evidence, the Tribune found. Two
were indicted, but the charges were dismissed before trial.79
None of the prosecutors were publicly sanctioned or charged with a

crime. It is unclear whether any were sanctioned by state bar author-
ities, because these proceedings are not a matter of public record if the
sanction was minor. Several of the offending prosecutors advanced
significantly in their careers:
In Georgia, George ‘‘Buddy’’ Darden became a congressman

after a court concluded that he withheld evidence in a case
where seven men, later exonerated, were convicted of mur-
der and one was sentenced to death. In New Mexico, Virginia
Ferrara failed to disclose evidence of another suspect in a
murder case. By the time the conviction was reversed she
had become chief disciplinary counsel for the New Mexico
agency that polices lawyers for misconduct.80
If state bar authorities are hesitant to bring disciplinary actions against

prosecutors, it is not surprising that criminal charges are even more
infrequent. Yet much of prosecutorial misconduct is criminal behavior.
When prosecutors knowingly put witnesses on the stand to testify falsely,
they suborn perjury. Subornation of perjury is a felony in all fifty states.81
Prosecutors are not above the law or immune from prosecution. In fact,
as the chief law enforcement officers, they should be held to the highest
standard of conduct. Yet despite overwhelming evidence that prose-
cutors routinely break the law, they are not punished.
One of the rare prosecutions for prosecutorial misconduct oc-

curred in 1999 in DuPage County, Illinois.82 Three former prosecu-
tors and four sheriff ’s deputies were indicted and tried for various
criminal offenses, including obstruction of justice and subornation of
perjury. The charges grew out of allegations that the prosecutors had
hidden exculpatory evidence and knowingly put witnesses on the stand
to lie under oath in the trial of Rolando Cruz. Cruz, Alejandro
Hernandez, and Stephen Buckley faced the death penalty for the ab-
duction, sexual assault, and murder of a ten-year-old girl.83 The facts
of the case were particularly gruesome, and there was much pressure to
find and convict the perpetrators.
The prosecutors’ behavior in the Cruz case was particularly egre-
gious. They hid exculpatory evidence from defense counsel, including a
confession to the crime by a convicted murderer and forensic reports
from several experts demonstrating that the shoe print in the victim’s
home did not belong to any of the defendants. In addition, the deputies
involved in the case allegedly fabricated an incriminating statement that
they claimed Cruz had made while in jail. In fact, two DuPage sheriff ’s
investigators and an assistant Illinois attorney general were so convinced
of wrongdoing by the prosecutors and deputies that they resigned rather
than support the prosecution of Cruz. Charges against Buckley were
ultimately dismissed, but Cruz and Hernandez were tried and convicted.
Their convictions were overturned, and they were tried and convicted a
second time, only to have their convictions reversed again. Neither re-
versal was based on allegations of prosecutorial misconduct. At Cruz’s
third trial, there was overwhelming evidence of perjury by the sheriff ’s
deputies, and he was acquitted.84
After Cruz’s acquittal, the chief judge of the DuPage County
Circuit Court appointed a special prosecutor to investigate the sher-
iff ’s deputies. The special prosecutor expanded his investigation to
include the prosecutors and ultimately returned the indictment that led
to their trial. The trial received relatively little national coverage, de-
spite its historic significance. According to Armstrong and Possley,
only six prosecutors have been prosecuted in this century for the type
of misconduct alleged against the Cruz prosecutors.85 Two were
convicted of minor misdemeanors and fined $500, two were acquit-
ted, and charges against the other two were dismissed before trial.86
All seven of the defendants—the prosecutors and the sheriff ’s
deputies—were acquitted of all charges.87 A number of the jurors
spent the better part of the evening of the acquittal celebrating with the
defendants in a local steakhouse.88 The former prosecutors—Patrick
King, Thomas Knight, and Robert Kilander—went on to pursue
successful legal careers. Patrick King became an assistant U.S. attorney
in the Northern District of Illinois.89 Thomas Knight practiced law in
the private sector, and Robert Kilander became a judge in the very
court where he had faced criminal charges.90 Thomas Knight even-
tually filed a lawsuit against Armstrong, Possley, and the Chicago Tri-
bune.91 There was a jury trial, and on May 20, 2005, the jury returned a
verdict in favor of Possley and the newspaper.92
Most prosecutors who engage in misconduct not only escape
punishment but also advance in their careers. Paul Howes, a former
U.S. attorney in the District of Columbia, was accused of prosecutorial
misconduct on several occasions.93 After a two-year investigation of
Howes’s behavior, the Justice Department’s Office of Professional
Responsibility (OPR) concluded that Howes had abused the witness
stipend system by doling out excessive payments to cooperating wit-
nesses and their family and friends, who were not witnesses. Ac-
knowledging that Howes’s behavior constituted criminal conduct,
investigators declined to prosecute him, instead agreeing to drastically
reduce the sentences of the defendants convicted in the cases in which
misconduct was found.94 Howes later became a partner at the San
Diego firm of Lerach, Coughlin, Stoia, Geller, Rudman & Robbins.
Howes’s experience is typical. Cook County, Illinois, prosecutors
Carol Pearce McCarthy, Kenneth Wadas, and Patrick Quinn were all
scathingly criticized in appellate opinions for misconduct during trial.
All three were promoted to supervisor positions, and all three became
judges.95
Why do prosecutors escape punishment for prosecutorial miscon-
duct? The responses of the Supreme Court, state and federal disci-
plinary authorities, and the general public provide some insight. The
Supreme Court’s deference to prosecutors and the harmless error
doctrine might be attributable to the fact that the remedy generally
sought is reversal of a criminal case. The Court’s hesitancy to reverse
criminal convictions when there is substantial evidence of a defen-
dant’s guilt indicates that it places a higher premium on affirming
convictions than in punishing prosecutors who do wrong. In addition,
some might argue that reversing a criminal conviction does not di-
rectly or sufficiently punish prosecutors for wrongdoing.
State and federal bar authorities rarely punish prosecutors for the
reasons previously mentioned. First, they seldom receive formal com-
plaints about prosecutors, because the people most likely to discover
the misconduct—defense attorneys—fear retaliation from prosecution
offices that will continue to wield power and exercise considerable
discretion in their clients’ cases. Second, even when complaints are
made, the punishment is light—perhaps because of the deference and
respect prosecutors generally receive from the legal profession.
But what about the general public? On the rare occasions that the
public has been informed about prosecutorial misconduct, there has
not been public outcry, nor have prosecutors been voted out of office
for their behavior. The Chicago Tribune and Pittsburgh Post-Gazette
articles reported egregious behavior by local prosecutors, yet these
articles did not result in the public taking action against the offending
prosecutors. There are a number of possible reasons for the lack of
response. Perhaps members of the general public did not read the
articles. Or they may have read about the misconduct but dismissed or
excused it, indicating a disturbing support of ignoring the rule of law in
the interest of catching criminals. On the other hand, the public may
not endorse prosecutorial misconduct, but may not know how to take
action to stop it.96 Even if the prosecutor is an elected official who may
be voted out of office, the next election may be years away, and the
misconduct may be long forgotten.
The public may certainly punish prosecutorial misconduct if the
offending prosecutor is charged and exercises his or her right to trial.
But these prosecutions are extremely rare, and the few in this century
have not resulted in serious punishment. It would be unwise to draw
any broad conclusions about the general public’s reaction to prose-
cutorial misconduct from these few prosecutions, primarily because
there are too few to draw a conclusion from, and also because the
public did not play a part in the outcome of most of the cases, since
most of them never went to trial. The acquittal of the Cruz prosecutors
may not indicate an acceptance of prosecutorial wrongdoing. Because
there are so many factors that affect a jury verdict, in the absence of
firsthand information from the jurors themselves, one cannot know
with certainty what factors or issues led them to acquit.
An informal poll conducted by the Chicago Tribune after the pub-
lication of its series on prosecutorial misconduct may offer some guid-
ance on the public’s view of prosecutorial misconduct. The Tribune
posted the following question: ‘‘An investigation by the Chicago Tri-

bune found that prosecutor misconduct is commonplace in felony cases
brought in Cook County. But Chicago is not alone. Scores of murder
convictions have been thrown out around the country because of
dishonest prosecutions. What do you think should be done to remedy
this situation?’’ Readers responded as follows:
‘‘[Prosecutors] should be prosecuted for their crimes.’’

‘‘We need more effective checks and balances on the unfet-
tered discretion about what and whom to charge. We also
need a more certain sanction for those prosecutors found
guilty of fudging or hiding the evidence.’’
‘‘The first thing to do is eliminate the immunity that they
and our prosecutors, judges, and other bureaucrats do not
deserve. . . . At a minimum we need to raise the standard of
proof in order to execute someone accused of murder. . . . Last,
but not least, prosecutors need to be prevented from buying
testimony from criminals to help prosecute others.’’
‘‘We need institutional reform.’’
‘‘Our judicial system as a whole, needs to be overhauled.’’97
These responses may suggest that, even in cases involving serious

criminal behavior, the American public ultimately wants the laws to be
enforced fairly. The poll also suggests that the lack of public outrage
over prosecutorial misconduct may be a result of lack of information
about what prosecutors do and how they behave.
THE THIN LINE
Prosecutors wield incredible power and exercise broad discretion in

the important decisions they make every day—especially charging and
plea bargaining decisions. Their decision-making is often arbitrary,
hasty, and impulsive, sometimes resulting in disparities among similarly
situated defendants and crime victims. Because prosecutors make these
decisions in private without meaningful supervision or accountability,
they are rarely punished when they engage in misconduct. In fact, they
are often rewarded with promotions and career advancement as long as
their conviction rates remain high. This system suggests a cycle of mis-
conduct that is continually reinforced. It is easier for prosecutors to
secure a conviction when they withhold exculpatory evidence, and
since they suffer no consequences for withholding it and are rewarded
for securing convictions, they continue the misconduct.
When misconduct is neither acknowledged nor punished, the line
between acceptable behavior and misconduct begins to blur. Some
prosecutors may not actually realize the illegality of their behavior,
especially inexperienced prosecutors in offices that foster a culture of
winning at any cost. If a prosecution office does not train its prose-
cutors to reveal Brady information and otherwise play by the rules,
these prosecutors may unknowingly cross the line from acceptable to
illegal behavior. Even when prosecutors know their behavior is illegal,
the harmless error doctrine and the absence of meaningful oversight by
bar disciplinary authorities serve to encourage the offending behavior.
CONCLUSION
When the law is broken by the very people the public trusts to enforce
the law, meaningful action must be taken. Prosecutorial misconduct is
widespread and unchecked, and it is unlikely that either the courts or
the general public will take action to eliminate it. Prosecutors certainly
have not policed themselves. Thus, the legal profession must take the
lead in instituting meaningful reform that will assure oversight and
strict accountability when prosecutors break the law. Although crim-
inal lawyers in individual cases may not have the ability to affect mean-
ingful reform, other lawyers, through local and national bar associa-
tions, should advocate for legislation and binding professional rules
that will be enforced against wrongdoers.98 Lawyers have a vested
interest in improving the reputation of the profession and in the fair
administration of justice for everyone. They also have the expertise
and responsibility to institute reforms to eliminate misconduct among
prosecutors.
EIGHT
Prosecutorial Ethics
The Supreme Court has suggested that the most appropriate remedy for
prosecutorial misconduct is disciplinary action by state bar authorities.1
However, the Court’s suggestion has proven to be woefully inadequate
and ineffective.2 The lack of transparency in prosecution offices has
made discovery of prosecutorial misconduct extremely difficult, and
even when misconduct is discovered, referrals to state disciplinary au-
thorities have been few and far between. As discussed in chapter 7, in the
relatively few cases that have been referred to state authorities, prose-
cutors rarely receive serious discipline.
Chapter 10 discusses ways the disciplinary process might be reformed
to more effectively root out prosecutorial misconduct. However, before
addressing the issue of reforming the process, it is useful to explore
whether the disciplinary rules themselves adequately address the prose-
cution function. Given the very different role that prosecutors play, as
compared to lawyers who represent clients in both civil and crimi-
nal cases, do the disciplinary rules that govern attorney conduct pro-
vide sufficient guidance to prosecutors or adequate bases for holding
prosecutors accountable for misconduct? This chapter will explore these
issues.
THE RULES OF PROFESSIONAL CONDUCT
The rules that govern the professional conduct of lawyers are pro-
mulgated by the ABA, a private organization and the largest voluntary
143
bar association in the country. The ABA has drafted several compre-
hensive codes of ethical conduct over the past one hundred years that
have provided the model for the rules adopted by state courts. When a
state court adopts a code of ethical conduct, it may then be enforced
against the lawyers in that jurisdiction.
The first code of ethical conduct was the Canons of Professional
Ethics, promulgated by the ABA in 1908. The Canons of Professional
Ethics were vague and contradictory and were enforced selectively.
Nonetheless, they remained in effect for over sixty years. It was not
until 1969 that the ABA adopted a new code of professional conduct,
called the Model Code of Professional Responsibility. Almost all ju-
risdictions adopted the Model Code, and it remains in effect in a few
states, including New York. In 1977, the ABA began yet another
reconsideration of the rules of professional conduct. A commission was
appointed and ultimately proposed the Model Rules of Professional
Conduct in 1983.3 Most jurisdictions adopted these.
Just fourteen years after the adoption of the Model Rules, the ABA
undertook yet another project to revise the rules governing attorney
conduct. In 1997, then–ABA president Jerome Shestack, his immedi-
ate predecessor, N. Lee Cooper, and his successor, Philip S. Anderson,
persuaded the ABA House of Governors that the Model Rules were in
need of review and revision. They established what became known as
the Ethics 2000 Commission to undertake this project.4 According to its
proponents, a commission was needed to review and revise the rules
because there was substantial lack of uniformity among the various state
versions of the Model Rules and new legal issues were being raised by
the influence of advancements in technology on the delivery of legal
services.5 In 2002, the ABA House of Delegates adopted a series of
amendments as a result of the Commission’s work. Forty-seven states
and the District of Columbia have adopted some version of the
amended Model Rules.6
The Model Rules cover a wide range of attorney conduct, and
many of the rules apply only to lawyers who represent clients. As
representatives of the state, prosecutors represent ‘‘the people’’ (in-
cluding the defendants they prosecute) and are charged with ‘‘doing
justice’’ rather than zealously pursuing the interests of individual cli-
ents. Thus, the Model Rules address an entire range of issues, including
attorney fees, conflicts among clients, selling a law practice, advertising,
PROSECUTORIAL ETHICS 145
and solicitation,7 that have no applicability to the performance of

prosecutorial duties and responsibilities.
On the other hand, the Model Rules include provisions that apply
to all lawyers, including prosecutors. These rules govern issues such as
making false statements, offering false evidence, concealing evidence,
asking a witness not to cooperate with the adversary, and publicity
during litigation.8 These provisions all use the term ‘‘lawyer,’’ even
though the prohibitions regarding attorney behavior apply to prose-
cutors as well.
The only rule that specifically addresses the conduct and behavior
of prosecutors is Model Rule 3.8: Special Responsibilities of a Pros-
ecutor. The Ethics 2000 Commission recommended no substantive
changes to Model Rule 3.8 and only one substantive change to the
rule’s comment. This change resulted in fewer restrictions on prose-
cutorial behavior than the original rule.
MODEL RULE 3.8
The role of the prosecutor is clearly distinct and fundamentally dif-

ferent from that of lawyers who represent clients. The ABA and the
Association of American Law Schools (AALS) recognized this dis-
tinction in their Joint Conference Report on Professional Responsi-
bility, concluding that a ‘‘prosecutor cannot take as a guide for the
conduct of his office the standards of an attorney appearing on the
behalf of an individual client. The freedom elsewhere wisely granted
to partisan advocacy must be severely curtailed if the prosecutor’s
duties are to be properly discharged.’’9 Presumably, Model Rule 3.8,
the only rule specifically directed solely to prosecutors, should ade-
quately address their distinct duties and responsibilities. According to
Model Rule 3.8:
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor

knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has
been advised of the right to, and the procedure for
obtaining, counsel and has been given reasonable op-

portunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a
waiver of important pretrial rights, such as the right to a
preliminary hearing;
(d) make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to ne-
gate the guilt of the accused or mitigates the offense,
and, in connection with sentencing, disclose to the de-
fense and to the tribunal all unprivileged mitigating
information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a pro-
tective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence about a past or present
client unless the prosecutor reasonably believes:
(1) the information sought is not protected from dis-
closure by any applicable privilege;
(2) the evidence sought is essential to the successful com-
pletion of an ongoing investigation or prosecution;
and
(3) there is no other feasible alternative to obtain the
information;
(f ) except for statements that are necessary to inform the
public of the nature and extent of the prosecutor’s action
and that serve a legitimate law enforcement purpose,
refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemn-
ation of the accused and exercise reasonable care to
prevent investigators, law enforcement personnel, em-
ployees or other persons assisting or associated with the
prosecutor in a criminal case from making an extraju-
dicial statement that the prosecutor would be prohibited
from making under Rule 3.6 or this Rule.10
Rule 3.8 addresses some of the prosecutor’s most important re-

sponsibilities, such as the charging decision (3.8(a)) and the duty to
disclose exculpatory information to defense counsel (3.8(d)). How-
ever, rule 3.8 fails to address a number of equally important prose-
cutorial issues, including conduct before the grand jury, relations with
the police and other law enforcement officers, relations with victims
and government witnesses, and selective prosecution. In fact, these
critical issues are not addressed anywhere in the Model Rules. In
addition, some of the language of rule 3.8 is vague and subject to in-
terpretation, providing very little clear guidance to prosecutors and
making it difficult to sustain complaints against prosecutors before
disciplinary authorities.
As discussed in previous chapters, there have been many claims of
prosecutorial misconduct regarding charging decisions, grand jury issues,
witness relations, and other issues. The Supreme Court has created a very
high standard for the reversal of criminal cases based on misconduct and
has suggested that claims of misconduct that do not meet this standard be
referred to bar disciplinary authorities.11 Chapter 7 discussed some of the
reasons why there have been so few referrals of prosecutors to disci-
plinary authorities and even fewer sustained complaints. However, the
rules themselves may present an additional impediment.
Rule 3.8(a) permits prosecutors to bring charges that are based on
the very low standard of probable cause. Although probable cause is
the standard that the grand jury must use in deciding whether to issue
an indictment, shouldn’t ethical rules require that prosecutors meet a
higher standard in the exercise of the charging decision? After all,
prosecutors must meet a much higher standard—proof beyond a
reasonable doubt—to obtain a conviction. If they are permitted to
bring charges on the minimal standard of probable cause, there is a
greater potential that the charging power will be used improperly—
perhaps to intimidate, harass, or coerce a guilty plea in a case in which
the government cannot meet its burden of proof at trial. How-
ever, prosecutors have argued that if the reasonable doubt stan-
dard were imposed as an ethical requirement, prosecutors would be
subject to claims of unethical behavior in every case involving an
acquittal.12
Despite the minimal requirements of Rule 3.8(a), some prosecu-
tors use a higher standard in deciding whether to bring charges.13
Prosecutors usually do not know whether the defendant would be
inclined to accept a plea offer, so if the defendant decides to exercise
his right to a trial, the prosecutor must be prepared to meet the higher
reasonable doubt standard. In addition to the ethical issues, it would be
a waste of time and resources for a prosecutor to present a case to the
grand jury if she did not believe that she could prove the case beyond a
reasonable doubt.
The standards promulgated by the National District Attorneys
Association seem to establish a slightly higher charging standard than
the Model Rules. According to standard 43.3, ‘‘[t]he prosecutor
should file only those charges which he reasonably believes can be
substantiated by admissible evidence at trial.’’14 Since prosecutors are
permitted to present hearsay and other otherwise inadmissible evi-
dence to a grand jury to establish probable cause, the NDAA standard
seems to require a greater level of certainty than the Model Rules.
Nonetheless, the NDAA standards, like the ABA prosecution stan-
dards, are aspirational and not enforceable. Furthermore, the com-
mentary to NDAA standard 43 may neutralize its slightly more rig-
orous requirements. According to the commentary, ‘‘[t]he charging
decision is not an exact science, since the prosecutor, in deciding what
he feels to be the maximum charge supported by the available evi-
dence, necessarily operates with less than total knowledge of the facts
and possible trial situation. As a result, the initial charging decision may
have to be modified and reduced to a lesser charge as the prosecutor
gains additional information about the offense and offender.’’15 This
language seems to endorse prosecutors bringing charges before they are
fully informed about the facts and may be interpreted as permitting
prosecutors to ‘‘overcharge’’—a practice that may have devastating and
unfair consequences for criminal defendants, as discussed in chapter 2.
Even if it were demonstrated that most prosecutors abide by a
higher charging standard than either the Model Rules or the NDAA
standards, the Model Rules are the only ethical rules that are en-
forceable by law, and they leave the door open for unethical practices.
An indictment alone may significantly damage an individually person-
ally, professionally, and financially. As one former prosecutor stated,
‘‘[a] prosecutor’s power to damage or destroy anyone he chooses to
indict is virtually limitless.’’16 An unethical prosecutor may decide to
bring an indictment against an individual that she may easily accom-
plish under a probable cause standard, even if she knows that she
would not be able to prove that person’s guilt beyond a reasonable
doubt. There is nothing in rule 3.8 or anywhere in the Model Rules
that specifically prohibits such behavior.
Model rule 3.8(d) requires prosecutors to disclose all evidence or
information that tends to negate or mitigate the defendant’s guilt. This
rule essentially imposes the same requirements on prosecutors as did

the U.S. Supreme Court in Brady v. Maryland.17 In Brady, the Court
held that ‘‘the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.’’18 Arguably, the model rule may go
further than Brady in that it requires disclosure even when there has
not been a request. Thus, in jurisdictions that have adopted the Model
Rules, prosecutors may be referred to disciplinary authorities for Brady
violations. Yet such referrals are rare. There are many reasons why
lawyers, judges, and ordinary citizens may not be inclined to bring
claims of unethical behavior against prosecutors,19 but even if a claim
were brought, it would be difficult to sustain in light of the imprecise
language of the rule.
Rule 3.8(d) requires ‘‘timely disclosure’’ of exculpatory informa-
tion. This phrase alone demonstrates the imprecision of the rule.
Neither the rule nor the comment to the rule defines what is meant by
‘‘timely.’’ Defense attorneys would suggest that such information is of
no help to the defense unless it is disclosed long before the trial date.
For example, if there is a witness who identified someone other than
the defendant as the perpetrator, the defense would need time to lo-
cate, interview, and possibly subpoena that witness for trial. Yet many
prosecutors might withhold such information until the trial date, ar-
guing that as long as the defense attorney knows about it before trial,
she will be able to use it in defense of the accused.
A prosecutor who believes that exculpatory information need not
be disclosed until the time of trial has no incentive to disclose the
information if she offers the defendant a plea to a lesser offense before
trial and the defendant accepts the offer. The plea bargaining process,
although controlled by the prosecutor, is one of negotiation.20 If the
defense attorney knows that there is information that tends to excul-
pate her client, she will be in a much better bargaining position during
the plea bargaining process. Or, depending on the information, the
defense attorney may advise the client that he has a good chance of an
acquittal at trial. The prosecutor who makes a plea offer while with-
holding such information arguably is engaging in unethical conduct.
Yet the vagueness of the term ‘‘timely disclosure’’ makes it unlikely
that such behavior would be sufficient to sustain a claim that the
prosecutor violated rule 3.8(d).
Rule 3.8(d) refers to ‘‘evidence or information known to the

prosecutor.’’ This phrase is also subject to interpretation. Are prose-
cutors required to disclose information known to police officers or
other law enforcement agents? Do they have an affirmative obligation
to ask police officers, law enforcement agents, or other individuals
involved in the investigation and prosecution of the case whether there
is any exculpatory information? These questions have been the subject
of much litigation.21 The fact that there is so much disagreement about
this issue makes it unlikely that disciplinary authorities would punish
a prosecutor in the absence of proof that she had actual knowledge
of exculpatory information. The rule does not require prosecutors to
make efforts to discover such information from anyone, so the failure
to do so would not likely constitute an ethical violation.
The part of the rule that is probably the most important is also the
vaguest. Neither the rule nor the comment to the rule clarifies what is
meant by information ‘‘that tends to negate the guilt of the accused or
mitigates the offense.’’ Prosecutors and defense attorneys are likely to
have very different views of what information this phrase covers. For
example, defense attorneys likely would argue that any contradictory
or inconsistent statements made by any government witness should be
disclosed. They would suggest that such information impeaches the
credibility of these witnesses and thus ‘‘negate[s] the guilt of the ac-
cused.’’22 Prosecutors would argue that contradictory statements by a
witness may not negate the guilt of the accused. In an armed robbery
case involving codefendants, a defense attorney may argue that in-
formation showing that government witnesses disagree about who
carried the gun should be disclosed. For example, if one witness claims
a codefendant was the gunman and all other witnesses identify the
defendant as the gunman, the defense attorney would argue that this
information negates his client’s guilt or at least mitigates the offense. A
prosecutor would argue that such information would not tend to
‘‘negate the guilt of the accused’’ and should not be disclosed, since an
accomplice who stands beside the gunman during an armed robbery is
just as guilty of the offense.
In sum, model rule 3.8 does not adequately address the conduct
and behavior of prosecutors. The rule does address, albeit inade-
quately, the charging decision and the duty to disclose exculpatory
evidence. In addition, sections e and f address controversial issues that
prosecutors regularly confront—subpoenas to defense attorneys and
extrajudicial statements by prosecutors. The other sections, b and c,

concern issues that, though important, do not rank among the most
pressing concerns regarding prosecutorial behavior. In most jurisdic-
tions, judges assume responsibility for the appointment of counsel. As
for pretrial waivers, the comment makes it clear that this section does
not apply to the questioning of uncharged suspects—an issue of greater
concern to defense attorneys than preliminary hearings. It is unclear
why the rule would address these issues while ignoring those about
which prosecutors clearly need guidance, such as the grand jury, re-
lations with witnesses and victims, and selective prosecution.
The rule’s inadequacy lies not only in its failure to address critical
issues but also in the vagueness of its language. Much of it is subject
to interpretation, providing very little guidance to prosecutors or disci-
plinary authorities. The comment to the rule also contains vague lan-
guage that provides no more guidance than the rule itself. According to
the comment:
A prosecutor has the responsibility of a minister of justice and

not simply that of an advocate. This responsibility carries with
it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of
sufficient evidence. Precisely how far the prosecutor is required
to go in this direction is a matter of debate and varies in dif-
ferent jurisdictions. Many jurisdictions have adopted the ABA
Standards of Criminal Justice Relating to the Prosecution
Function, which in turn are the product of prolonged and
careful deliberation by lawyers experienced in both crimi-
nal prosecution and defense. Applicable law may require other
measures by the prosecutor and knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion
could constitute a violation of Rule 8.4.23
THE ETHICS 2000 COMMISSION—

A LOST OPPORTUNITY?
The Ethics 2000 Commission made very few recommendations that

specifically addressed prosecutorial responsibilities. The only change to
rule 3.8 involved a consolidation of two of the existing sections into
one.24 However, there were several amendments to the comment to

rule 3.8. Two dealt with sections c (prohibiting prosecutors from solic-
iting waivers from unrepresented persons) and f (prohibiting prosecu-
tors from making certain extrajudicial statements). The other amend-
ment to the comment weakened prosecutors’ responsibilities under
3.8(d). The original comment made it clear that prosecutors should
disclose information exculpatory to the defense to grand juries.25 The
Ethics 2000 Commission deleted this clarification from the comment,
choosing to follow the Supreme Court’s holding that such information
need not be disclosed to grand juries26 rather than the ABA Standards,
which recommend disclosure.27
Although many of the recommended changes adopted by the ABA
apply to both lawyers who represent clients and prosecutors, most do
not specifically address the duties and responsibilities unique to the
prosecution function. The only other amendment (other than the
amendments to the comment to rule 3.8) that specifically addressed a
prosecution issue was the amendment to rule 4.2. This rule states:
In representing a client, a lawyer shall not communicate

about the subject of the representation with a person the law-
yer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is
authorized to do so by law or a court order.
Rule 4.2 was the subject of great controversy when Richard Thorn-
burgh issued the memo in 1989 that exempted federal prosecutors
from the rule. The Commission held numerous meetings about the
rule with the ABA Standing Committee on Ethics and Professional
Responsibility and attempted to draft an amendment that would
provide clarity as to how prosecutors should interpret the rule.28
However, the Justice Department never supported the Commission’s
efforts, so it abandoned the amendment.29 Instead, the Commission
added the words ‘‘or a court order’’ to the end of the previous rule to
give prosecutors the opportunity to convince a court to permit com-
munication with represented persons.
Many organizations and individuals submitted suggestions and
comments to the Commission on various aspects of the Model Rules,
but very few commented on the duties and responsibilities of prose-
cutors. A few bar associations and individuals commented on rule 3.8.
For example, Rex Heinke, then-president of the Los Angeles County

Bar Association, sent a letter objecting to proposed language in the
comment that suggested that prosecutors’ discovery obligations in rule
3.8 went beyond what was required by the Constitution.30 In addi-
tion, Robert O’Malley, then-chair of the District of Columbia Bar
Rules of Professional Conduct Review Committee, sent a letter to
the ABA Commission on Evaluation of the Rules of Professional
Conduct recommending changes to strengthen the independence of
the grand jury and require prosecutors to submit exculpatory infor-
mation to the grand jury.31 However, none of the national prosecutor
or defense organizations submitted comments.32
The Commission did solicit comments from the ABA Criminal
Justice Standards Committee. Niki Kuckes, then-chair of the Com-
mittee, submitted a report that was critical of model rule 3.8.33 The
report suggested the need for a number of amendments, including
raising the standard for bringing charges. It also suggested the need to
add provisions that address important issues that rule 3.8 is silent about
but various state ethics codes address. These include provisions pro-
hibiting selective prosecution and the use of peremptory strikes against
jurors based on race, religion, sex, ethnicity, or nationality.34 None-
theless, the report discouraged the Commission from recommending
a comprehensive overhaul of the rule, instead suggesting that there
should be a separate, long-term review of the rule with participation of
prosecutors, defense attorneys, and the courts, in light of the contro-
versial nature of the suggested changes.35 The Commission obviously
acted in accordance with the Standards Committee’s recommen-
dation.
One of the stated reasons for the latest revision of the Model Rules
was the lack of uniformity among state ethics codes. There are few
areas of legal practice more lacking in uniformity than the perfor-
mance of prosecutorial duties and responsibilities. Because of the dis-
cretionary nature of prosecutorial practice, complete uniformity is
neither possible nor necessarily desirable. However, vast disparities in
how prosecutors perform fundamental duties and responsibilities sug-
gest a need for guidance. The fact that there has been so much liti-
gation and controversy around issues of grand jury practice, selective
prosecution, disclosure of exculpatory information, and contact with
represented persons suggests the need for more guidance in the ethical
rules. Yet the ABA chose to pass on the opportunity to provide that
guidance during its last revision of the Model Rules. This decision is
especially troubling in light of the Supreme Court’s suggestion that state
disciplinary authorities should bear the responsibility for addressing
prosecutorial misconduct. If both the Supreme Court and the ABA
choose to sidestep the responsibility for holding prosecutors accountable,
all that is left is a reliance on the electoral and appointments processes,
which have proven ineffective due to the lack of transparency in pros-
ecution offices and the lack of interest by the general public.36
THE REGULATION OF FEDERAL PROSECUTORS
As with many other issues involving prosecutorial power, the regu-

lation of the professional conduct of federal prosecutors is even more
difficult than that of their state and local counterparts. As already
mentioned, despite the dearth of disciplinary referrals of either state
or federal prosecutors, in 1989, former attorney general Richard
Thornburgh issued his extraordinary memo, which Attorney General
Janet Reno reissued for public comment with some modifications (the
‘‘Reno Rule’’), and it was codified in a series of regulations in 1994.37
Thornburgh issued his memo in response to a controversy sur-
rounding the extent to which federal prosecutors should be required to
comply with disciplinary rule 7-104(A)(1) of the ABA Model Code
of Professional Responsibility and its successor, rule 4.2 of the ABA
Model Rules of Professional Conduct. According to rule 7-104(A)(1):
During the course of his representation of a client a lawyer shall

not: Communicate or cause another to communicate on the
subject of the representation by a lawyer in that matter unless
he has the prior consent of the lawyer representing such other
party or is authorized by law to do so.
Rule 4.2 of the Model Rules is quite similar:
In representing a client, a lawyer shall not communicate about

the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is
authorized by law to do so.
Defense attorneys complained that federal prosecutors were routinely

violating the rule, which had been adopted in almost all states. Some of
these attorneys filed motions to suppress evidence in cases in which
prosecutors violated the rule, and others referred the prosecutors to the
state disciplinary authorities.38
Most of these alleged violations involved either undercover or overt
communications with individuals who were targets of a criminal in-
vestigation. Thornburgh took the position that, even though these in-
dividuals were represented by counsel in their pending cases, the chal-
lenged communications were about criminal behavior that had not yet
been charged. Thus, according to Thornburgh, these defendants were
not represented by counsel in the matters about which they were being
questioned.
In the memo, Thornburgh contended that prosecutors were car-
rying out their lawful responsibilities as federal law enforcement offi-
cers when they engaged in these communications and that these actions
were protected by the Supremacy Clause of the U.S. Constitution:
Indeed, the Department has consistently taken the position that

the Supremacy Clause of the Constitution does not permit
local and state rules to frustrate the lawful operation of the
federal government. See Ethical Restraints of the ABA Code of
Professional Responsibility on Federal Criminal Investigations, 4B
Op. Off. of Legal Counsel 576, 601-02 (1980). The Depart-
ment has taken the position that, although the states have the
authority to regulate the ethical conduct of attorneys admitted
to practice before their courts, Nix v. Whiteside, 106 S.Ct. 988,
994 (1986), that authority permits regulation of federal attor-
neys only if the regulation does not conflict with the federal law
or with the attorneys’ federal responsibilities, see Sperry v.
Florida, 373 U.S. 379, 402(1963).39
The Thornburgh Memo and the Reno Rule sparked litigation that
challenged the supremacy clause argument and other grounds of the
Justice Department’s exemption of federal prosecutors from rule 4.2.
Some courts rejected the Justice Department’s arguments,40 and others
did not.41
The Thornburgh Memo and the Reno Rule became moot in
1998, when Congress passed the CPA, requiring federal prosecutors to
abide by the ethics rules of the states in which they practiced, pro-
viding, in part, that
(a) [a]n attorney for the Government shall be subject to State

laws and rules, and local Federal court rules, governing
attorneys in each State where such attorney engages in
that attorney’s duties, to the same extent as other attorneys
in that State.
(b) The Attorney General shall make and amend rules of
the Department of Justice to assure compliance with this
section.42
The CPA was introduced by former congressman Joseph McDade, who

had been indicted on bribery-related charges in federal court in 1992.
During the pendency of his case, McDade filed numerous motions
alleging prosecutorial misconduct and violations of state ethical rules. All
of the motions were denied, and in 1996, McDade was acquitted of all
charges after a jury trial. Motivated by what he believed to be unethical
behavior by the federal prosecutors in his case, McDade began his
campaign to secure passage of various versions of the CPA, and finally
succeeded with the current version in 1998.
Not surprisingly, federal prosecutors have been highly critical of
the CPA. Its express purpose was to overrule the Justice Department
policy that purported to exempt federal prosecutors from state ethical
rules that, in the Justice Department’s view, conflict with their re-
sponsibilities as federal law enforcement officers. However, the ex-
pansive language of the bill potentially reaches much further. Section
530B is entitled ‘‘Ethical Standards for Attorneys for the Govern-
ment,’’ but the language of the section does not limit federal prose-
cutors to compliance with state ethical rules, instead declaring that
they are subject to all ‘‘State laws and rules.’’43 What should federal
prosecutors do when federal and state laws conflict, as they frequently
do? Federal prosecutors would have a good argument that the federal
law should prevail if there is a clear conflict.44 However, what if
particular state laws impose additional obligations on federal prose-
cutors? For example, if a state’s discovery rules require prosecutors to
disclose more information than the federal rules, would a federal
prosecutor violate the CPA by merely complying with the federal
rules?45
The purpose of the CPA was a good one—to ensure that federal
prosecutors comply with ethical rules. However, the statute does not
provide adequate guidance to federal prosecutors and leaves too many
questions unanswered. The language is broad, unclear, and subject to
interpretation. One of the main concerns involves federal investiga-
tions that have crossed state lines. If a prosecutor were involved with
such a multi-jurisdictional investigation, which state’s ethical rules
should she follow? Although most states ultimately passed some ver-
sion of the Model Rules of Professional Responsibility, not all states
did so, and how should a prosecutor proceed if she is involved in a
multistate investigation involving conflicting ethical rules?
The Justice Department does not suggest that its prosecutors should
not be required to comply with ethical standards. Instead, it points to
its own OPR as evidence that it should and does require its lawyers to
act ethically and responsibly in the implementation of their duties and
responsibilities. The Justice Department describes the OPR as follows:
The Office of Professional Responsibility, which reports di-

rectly to the Attorney General, is responsible for investigating
allegations of misconduct involving Department attorneys,
investigators, or law enforcement personnel, where the alle-
gations relate to the exercise of the authority of an attorney to
investigate, litigate, or provide legal advice.
The objective of OPR is to ensure that Department of
Justice attorneys continue to perform their duties in accordance
with the high professional standards expected of the Nation’s
principal law enforcement agency.
The Office is headed by the Counsel for Professional Re-
sponsibility. Under the Counsel’s direction, OPR reviews al-
legations of attorney misconduct involving violation of any
standard imposed by law, applicable rules of professional con-
duct, or Departmental policy. When warranted, OPR con-
ducts full investigations of such allegations, and reports its
findings and conclusions to the Attorney General and other
appropriate Departmental officials.46
The duties and responsibilities of all prosecutors clearly are distin-

guishable from lawyers who represent clients, and there are obviously
differences in how federal and state prosecutors practice—both in form
and in substance.47 Federal prosecutors typically handle more ongoing,

complex investigations that may span several jurisdictions. They also
may handle a different genre of criminal offense, such as environmental,
corporate, or organized crime. State and local prosecutors govern their
own jurisdictions without centralized direction,48 whereas federal pros-
ecutors are expected to abide by the U.S. attorneys’ manual and any
directives from the attorney general. Although it might be argued that
the more centralized governance of federal prosecutors makes it more
likely they will act ethically, the argument ultimately boils down to
‘‘Trust us because we are federal prosecutors’’—an argument that ulti-
mately rings hollow.49
There are undoubtedly many defense attorneys who would never
refer a federal prosecutor to OPR because they would not have faith
that the office would provide an unbiased assessment of the prosecu-
tor’s behavior. In my twelve years at PDS, I never referred a federal
prosecutor to OPR, nor did I hear of other public defenders mak-
ing such referrals, despite the fact that I was aware of many cases of
prosecutorial misconduct. Instead, my colleagues and I chose to litigate
the issues before judges and seek remedies for the clients whose cases
were affected by the misconduct.50
The OPR issues an annual report each year, in which it describes
its process and provides information about the complaints it receives—
the number and type of complaints, how they are resolved, and so on.
The OPR receives complaints from a number of sources, including
judges, lawyers, private individuals, and other federal agencies. Some
referrals come from the Justice Department itself. In fact, Department
attorneys are required to refer all cases in which judges make a finding
of prosecutorial misconduct.51 In each investigation, the prosecutor
accused of misconduct is interviewed on the record under oath. If
there is a finding of misconduct, the lawyers issue a report with a
recommendation, which may consist of a reprimand, suspension, or
even termination. This report is sent to the attorney general and the
hiring authority of the accused prosecutor’s office. The prosecutor’s
office then conducts its own disciplinary proceedings. If that office
sustains the finding of misconduct and the misconduct implicates that
state’s disciplinary rules, the OPR will refer the matter to the state’s
disciplinary authority.52
The most obvious criticism of OPR is a recurring theme in how
the prosecution function operates—lack of accountability. Can pros-
ecutors be trusted to discipline themselves? Even though OPR may

ultimately refer its prosecutors to state disciplinary authorities, it only
does so if its own investigation and the disciplinary process of the
prosecutor’s office sustain a finding of misconduct. Does OPR truly
hold federal prosecutors accountable if it only refers them to an in-
dependent authority after it has made its own determination of miscon-
duct? Might OPR be less inclined to find misconduct than an inde-
pendent authority?
According to OPR’s 2003 annual report, ‘‘[t]he majority of com-
plaints reviewed by OPR each year are determined not to warrant
further investigation because, for example, the complaint is frivolous
on its face, is outside OPR’s jurisdiction, or is vague and unsupported
by any evidence.’’53 The fact that the majority of complaints are dis-
missed is not, in and of itself, evidence of bias. Frivolous complaints
should be dismissed, and in any disciplinary entity, someone has to
make these judgments. However, the risk of actual and perceived bias
in the decision-making process is high when the ultimate decision-
makers have a vested interest in demonstrating that most of its pros-
ecutors do not engage in misconduct.
The sheer number of complaints that OPR dismissed in 2003 creates
at least the perception that there is a culture of the Justice Department
protecting its own. In the 2003 annual report, OPR summarizes its
intake and evaluation of complaints as follows:
In fiscal year 2003, OPR received 913 complaints and other

letters and memoranda requesting assistance, an increase of
approximately 33% from fiscal year 2002. OPR determined
that 342 of the matters, or approximately 37%, warranted
further review by OPR attorneys. OPR opened full investi-
gations in ninety-two of those matters; the remaining 250,
which are termed ‘‘inquiries,’’ were resolved with no findings
of professional misconduct, based on further review, responses
from the subjects, and other information. When information
developed in an inquiry indicated that further investigation was
warranted, the matter was converted to a full investigation.
The remaining 571 matters were determined not to war-
rant an inquiry by OPR because, for example, they related
to matters outside the jurisdiction of OPR; sought review
of issues that were being litigated or that had already been
considered and rejected by a court; were frivolous, vague, or

unsupported by any evidence; or simply requested information.
Those matters were addressed by experienced management
analysts through correspondence or referral to another gov-
ernment agency or Department of Justice component. A su-
pervisory OPR attorney and the Deputy Counsel reviewed all
such dispositions.54
Only ninety-two of the 913 complaints resulted in an investigation. Of

the ninety-two complaints, only thirteen attorneys were found to have
engaged in professional misconduct. Disciplinary action, including sus-
pension without pay and written reprimands, was taken against twelve
of the thirteen attorneys. The annual reports do not provide informa-
tion about the number of federal prosecutors who resign either during
an investigation or after learning that they will be investigated.55
The OPR also has been criticized for its failure to provide adequate
information when it refers cases to state disciplinary authorities. The
OPR staff often decline to provide complete reports on the prose-
cutors they refer, redacting classified or grand jury information and
other information that may fall under certain privacy acts.56 However,
it is difficult and sometimes impossible for the independent authority
to conduct an adequate investigation when OPR staff redact relevant
information from their reports or delay referrals for many years after
the initial complaint.57
Can independent oversight of federal prosecutors ever be achieved
if OPR fails to provide full disclosure to the appropriate state dis-
ciplinary authority in all cases involving allegations of misconduct?
Despite the failure of the Model Rules of Professional Responsibility
to provide adequate guidance and discipline to prosecutors (state or
federal), there is at least a recognition that the conduct of prosecutors
should be independently regulated. State disciplinary authorities can
and do investigate federal prosecutors in the absence of OPR refer-
rals,58 but OPR is certainly in the best possible position to facilitate
these investigations. The OPR serves a useful purpose—there is cer-
tainly a value in the Justice Department devoting an entire office to
assuring that its lawyers perform their duties legally and ethically.
However, unless this office cooperates more fully with state and local
authorities, true accountability cannot be achieved.
SEPARATE RULES AND PROCEDURES

FOR PROSECUTORS
The current disciplinary system for lawyers does not adequately ad-
dress the conduct and behavior of prosecutors. For all the political and
practical reasons previously discussed, lawyers rarely refer prosecutors
to state disciplinary authorities when they have legitimate complaints
of misconduct. Even if there were more referrals, the rules themselves
fail to address many of the most important prosecutorial functions.
Professor Bruce Green has suggested that the judiciary should con-
sider drafting separate ethical rules for prosecutors that recognize their
unique role as ministers of justice.59 Green’s suggestion should be seri-
ously considered. Many of the model rules, which have been adopted in
most states, either don’t apply to prosecutors or are not easily applied
because they don’t take into account the special role of prosecutors in the
justice system. The one rule that does apply to prosecutors is inadequate
because it fails to address many of the most important prosecutorial
functions. A separate code of prosecutorial conduct would address spe-
cific prosecutorial functions, offering guidance to prosecutors and pro-
viding a basis for holding them accountable when they engage in
misconduct.
Green suggests that the judiciary oversee the development of the
rules rather than the ABA, to reduce opposition from prosecutors’ of-
fices.60 Judicial oversight may or may not reduce prosecutorial oppo-
sition, but it should reduce the appearance of bias for or against pros-
ecutors. Prosecutors should play a major role in the rule-making process,
but criminal defense attorneys and the general bar should participate as
well. There should be a parallel separate process for federal prosecutors
involving the federal judiciary. A separate code of conduct for fed-
eral prosecutors would specifically address the unique responsibilities of
federal prosecutors.
There must be a multifaceted approach to reform of the prose-
cutorial function. Reform of the disciplinary rules and process for
prosecutors is just one method of promoting greater accountability
for prosecutors. Codification of a separate set of rules and a separate
disciplinary process for prosecutors would be a long and tedious
process but would produce a more effective system that would benefit
prosecutors and the public at large.
NINE
Prosecutorial Accountability
The previous chapters demonstrate the immense power and discretion

of the American prosecutor and how that power and the arbitrary
exercise of discretion often contribute to injustices in the criminal jus-
tice system. Even when prosecutors set out to do justice in good faith,
the arbitrary nature of their decisions and the absence of a meaningful
system of accountability frequently result in widely varying conse-
quences for similarly situated victims and defendants. As chapter 7
demonstrates, some prosecutors intentionally break the rules, and the
absence of meaningful punishment of these prosecutors may foster and
encourage a continuing climate of misconduct.
How and why does the current system of prosecution persist and
thrive in a democratic society of which the accountability of govern-
mental officials is an essential component? How effective is the current
system in holding prosecutors accountable to the people they purport
to serve? To the extent the system falls short, why is there such a lack of
interest in reform? This chapter explores these difficult issues by dis-
cussing the current mechanisms of accountability and the role the
media plays in perpetuating the current paradigm.
HOLDING PROSECUTORS ACCOUNTABLE
Separation of powers and a system of checks and balances were core

values of the framers of the Constitution.1 The distribution of power
163
among the three branches of government was meant to ensure efficient

government and to prevent any single branch from exercising arbitrary
power.2 The prosecutorial function falls within the executive branch
of government.3 Our system of checks and balances suggests that the
judicial and legislative branches have the power to hold prosecutors
accountable for abuse of power. For the most part, however, they have
not done so on either the federal or state levels. Thus, the constitu-
tional design has not prevented prosecutors, as members of the ex-
ecutive branch, from exercising ‘‘arbitrary power.’’
There is no historical or constitutional support for the de facto
unaccountable twenty-first-century prosecutor. The Constitution is
silent on the point.4 The evidence suggesting that the prosecutorial
function was at times unstructured and unaccountable to the people
before and immediately after the ratification of the Constitution does
not mandate the conclusion that the framers would endorse the cur-
rent model of prosecution. In fact, an examination of constitutional
values in light of the vast changes in our criminal justice system over
time suggests that the current model offends these core principles.
Accountability is a core constitutional value5—one that should be
preserved despite changes in the constitutional context. The framers
viewed a strong, unitary executive as advancing accountability, be-
cause a fragmented executive branch could more easily escape review.6
The modern prosecution model is fragmented within the executive
branch. Crime and criminal law enforcement have expanded immensely
since the eighteenth century.7 Indeed, it is undoubtedly safe to suggest
that the framers could not have imagined the numerous state and
federal law enforcement agencies and the complex set of criminal laws
enacted during the twentieth century.8 This vast expansion in crime
and law enforcement necessarily occasioned a corresponding increase
in the size, number, and fragmentation of prosecutorial entities on both
the state and federal levels. While more prosecutors were obviously
necessary, more prosecutorial discretion and power were not.9 In fact,
the increase in crime, criminal laws, and prosecutors suggest a need for
tightening, rather than expanding, prosecutorial power.
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.10
Our system of checks and balances has proven ineffective in restraining
prosecutorial power. The judicial branch has failed to check prose-
PROSECUTORIAL ACCOUNTABILITY 165
cutorial overreaching, and the legislative branch traditionally has passed

laws that increase prosecutorial power.11
The breadth of prosecutorial discretion and the prevalence of pros-
ecutorial misconduct demonstrate the importance of effective mech-
anisms of accountability. However, prosecutors require a certain level
of independence to make their decisions without inappropriate and
extraneous political pressures. These conflicting goals—accountability
and independence—create a difficult tension. So far, independence has
prevailed overwhelmingly.
It is difficult to strike the appropriate balance between indepen-
dence and accountability in the prosecution function. Independence is
extremely important to the appropriate exercise of prosecutorial dis-
cretion and power. Thus, prosecutors should perform their duties and
responsibilities independently, on the basis of all of the appropriate
considerations that promote the effective and efficient enforcement of
the criminal laws, including the input of victims and the circumstances
of defendants in particular cases. On the other hand, prosecutors should
be accountable to the constituents they serve without allowing the
prospect of reelection to improperly influence their decisions in in-
dividual cases. Prosecutors should be accountable to their constituents
as they formulate policies on general issues such as charging, plea
bargaining, and sentencing. However, ultimately they must make de-
cisions in individual cases independently, taking into account all of the
relevant considerations and ignoring inappropriate factors such as class,
race, ethnicity, or politics, with the goal of achieving a fair and just
result in all cases. All prosecutors face the difficult challenge of effec-
tively implementing these conflicting goals.
Prosecutorial discretion is an important and essential ingredient of a
fair and impartial criminal justice system. Mandatory minimum sen-
tencing laws demonstrate the dangers of eliminating discretion from a
decision-making process. Laws mandating that certain charging or plea
bargaining decisions be made in every case or even every case in certain
categories would surely result in injustices in some cases. A ‘‘one-size-
fits-all’’ approach rarely, if ever, works in the criminal justice system.
The facts and circumstances of each individual case must be considered
to achieve a fair and just result.
The arbitrary exercise of discretion without careful consideration
of only the relevant factors ultimately will produce unwarranted dis-
parities, as demonstrated in the previous chapters. Even prosecutors
who do not engage in intentional prosecutorial misconduct and try

very hard to make decisions free of bias and political pressure often
unintentionally exercise discretion in ways that produce inequitable
results for similarly situated victims and defendants, for all of the rea-
sons discussed in chapter 2. When there is no system in place to monitor
whether there are race and/or class disparities in charging and plea
bargaining, the prosecutor herself may not be aware of these disparities,
and the public certainly won’t know about them.
Although prosecutor offices do not routinely monitor race and
class disparities in the implementation of the prosecution function,12
all offices are subject to several mechanisms that purport to hold pros-
ecutors accountable to their constituents. Do these systems work ef-
fectively? Are prosecutors held accountable for practices and policies
that produce injustices in the system? Do the existing mechanisms of
accountability—the electoral process, budgetary restrictions, and time
and jurisdictional limitations—fall short of accomplishing this impor-
tant goal?
The Electoral Process
Forty-three states hold popular elections for attorney general—the

statewide prosecutor who, in most states, focuses on consumer pro-
tection, antitrust, and related matters, and has little or no involvement
in the prosecution of ordinary street crimes.13 At the county and
municipal level, more than 95 percent of the chief prosecutors are
elected.14 These positions are highly political, and candidates usually
campaign on general ‘‘tough on crime’’ themes, not on specific pro-
posals about how they plan to exercise their prosecutorial power.15
Prosecutors are usually elected in the same general elections as other
public officials. The state and county prosecutors hire assistant district
attorneys to handle the caseloads of their offices.
Ironically, the current system of choosing state and local prose-
cutors through the electoral process was established for the purpose of
holding prosecutors accountable to the people they serve. This model
of the elected prosecutor, which emerged during the rise of Jacksonian
democracy in the 1820s, has not proven effective.16 The public’s access
to information about prosecutorial decisions has not expanded since
the 1820s. The electorate has very little information about a prose-
cutor’s specific charging and plea bargaining practices or how he plans

to exercise his discretion before electing him to office or, in the case
of appointed prosecutors, before commenting on his appointment.17
Because of the paucity of such relevant information, the Jacksonian
democratic ideals that inspired the first elections of prosecutors in the
1820s have never been achieved.18 Although the electorate can and
does vote prosecutors out of office, it is not making these decisions in
a fully informed manner.
Very few people understand the day-to-day responsibilities of pros-
ecutors, nor do they seem to be interested in what prosecutors do. Unless
a person has the unfortunate experience of becoming involved in the
criminal justice system as a victim or witness, she would not have the
opportunity to observe prosecutorial practices. And victims and wit-
nesses are able to observe only so much. They ordinarily are not privy to
the inner workings of the prosecutor’s office, where charging and plea
decisions are hidden from view. Certainly the many instances of pros-
ecutorial misconduct discussed in chapter 7 rarely come to the public’s
attention. Even defense attorneys involved in the cases where those
abuses occur have trouble discovering them. The public cannot hold the
prosecutors accountable for behavior of which they are unaware.
The appointment process for federal prosecutors ensures that they
are even less accountable to the people than their state and local coun-
terparts. The president appoints the attorney general, who oversees the
Justice Department,19 and a U.S. attorney for each of the federal ju-
dicial districts.20 Each U.S. attorney hires AUSAs for her office, and
the attorney general may appoint additional AUSAs.21 All U.S. at-
torneys serve at the pleasure of the sitting president and may face
removal if a new president is elected, regardless of their conduct and
record as federal prosecutors.22 The president also retains the power to
remove a particular federal prosecutor during his term as president, but
would probably do so only in the unlikely possibility that the people
become aware of prosecutorial abuses and demand her dismissal.
After the president nominates the attorney general and the U.S.
attorney for each district, the Senate must confirm the appointments.
Members of the public certainly have the right to provide input and
comment during the confirmation process by communicating with
their senators, but they rarely do. If the nominee has prior experience
as a prosecutor, her record theoretically would provide a basis for
evaluation. Of course, the nominee’s record would not reflect his or
her most important prosecutorial decisions, such as charging and plea

bargaining, because they are made in private and rarely revealed to the
public.
Justice Scalia praised the system of accountability for federal prose-
cutors in his dissent in a Supreme Court case about the Office of the
Independent Counsel.23 Justice Scalia suggested that if the people are
dissatisfied with a federal prosecutor, they will (1) know that the pros-
ecutor was appointed by the president, (2) vote the president out of
office, and (3) thereby effectively hold the prosecutor accountable. Even
if such direct links could be drawn, it is unlikely that the voting public
would oust a popular president because of the actions of a single federal
prosecutor. Of course, in the case of a second-term president, the the-
oretical possibility of this form of accountability does not exist.24
The prosecution of Marion Barry, former mayor of Washington,
D.C., in 1990, offers an illustration in a particularly stark context. The
mayor had long labored under a cloud of suspicion about drug use
and philandering. Jay Stephens, the U.S. attorney for the District of
Columbia at that time,25 worked with federal law enforcement agents
to investigate the mayor’s behavior. The investigation ultimately re-
sulted in a sting operation in which a woman serving as a government
agent lured Barry to a hotel room on the promise of sexual favors. Law
enforcement officials videotaped him smoking crack cocaine and ar-
rested him on the spot.26 Television stations broadcast the video-
tape nationwide, and Stephens relied on it as a key piece of evidence in
Barry’s prosecution for drug possession and related offenses.27
Jay Stephens received widespread criticism for his prosecution of
Mayor Barry.28 Barry’s popularity, especially among the poor and
working-class residents of the District of Columbia, did not diminish
even after his drug usage came to light.29 Many members of the public
expressed the view that the prosecution constituted little more than a
political vendetta by a Republican prosecutor against a liberal mayor.
Attorney General Richard Thornburgh took no steps to stop or control
the prosecution, nor did Stephens suffer any reprisals, despite the wide-
spread public outcry over the prosecution by Stephens’s constituents.
As an appointed official, Stephens could not be voted out of office by
the electorate of the District of Columbia.30
Justice Scalia suggested that if a federal prosecutor ‘‘amass[es] many
more resources against a particular prominent individual . . . than the
gravity of the alleged offenses . . . seems to warrant, the unfairness will
come home to roost in the Oval Office.’’31 This did not hold true in
Mayor Barry’s prosecution. George H. W. Bush was president during
Barry’s prosecution. Bush did lose his reelection bid, but no one at-
tributed his 1992 defeat to the prosecution of Marion Barry.32 The
failure of President Bush and Attorney General Thornburgh to take
any action against Jay Stephens suggests that concern about Bush’s
possible defeat did not serve as a sufficient check on Stephens’s be-
havior.33 Stephens was well aware that a significant percentage of his
constituents opposed his prosecution of Barry; nonetheless, he pur-
sued it zealously. Barry’s prosecution received widespread national at-
tention, and the local opposition to the prosecution undoubtedly was
not shared by the majority of Americans; but even if it had been, it
would not have been an issue in the presidential campaign. The actions
of individual federal prosecutors simply are not viewed as matters of
national concern in most cases.
In sum, the electoral system does not effectively hold federal or
state and local prosecutors accountable to the constituents they serve.
Unless the public is consistently informed of prosecutors’ performance
during their tenure in office, the electoral process will remain inef-
fective. Even if a method of informing the public were established, there
is no guarantee that the electoral system would serve the accountability
function effectively, given the low voter turnout for many public
elections and the public’s apparent lack of interest in the conduct of
prosecutors, which will be discussed later in this chapter.34 However,
without this information, there is no possibility that the current system
can succeed.
Accountability through Budgetary Restrictions
Theoretically, budgetary restraints serve as a mechanism of account-

ability for federal and state prosecutors. These prosecutors work within
a prescribed budget and must allocate their resources accordingly. A
prosecutor who spent over 50 percent of her budget investigating
and prosecuting one individual would have limited resources available
to prosecute other crimes. An AUSA undoubtedly would suffer reprisals
from the U.S. attorney for that district, and the electorate would vote a
state or local prosecutor out of office if she were unable to prosecute
violent or otherwise serious crimes due to misallocation of her budget.
Numerous examples exist of federal prosecutors spending extra-

ordinary sums of money investigating certain crimes or particular in-
dividuals without apparent limit or control.35 The prosecution of
former mayor Marion Barry provides one example. Much attention
focused on the cost of the prosecution of a single individual on charges
that many considered relatively trivial.36 Estimates of the total cost of
the investigation and prosecution ranged from $2 million to $50
million.37 Even the low estimates seemed particularly extravagant in
hindsight, since the jury acquitted Barry on all but one misdemeanor
offense.38 Yet the prosecutor was not accountable to the people of the
District of Columbia for the allocation and management of his bud-
get.39 Other expensive prosecutions of single individuals for nonvio-
lent offenses include the prosecutions of Representative Dan Ros-
tenkowski, Governor Fife Symington, Congressman Joseph McDade,
and John Delorean.40 Each of these prosecutions involved massive
expenditures that came to light because the defendants were public
figures. The public would never become aware of similarly large al-
locations of resources in cases involving ordinary citizens unless the
press uncovered and reported such information.
State and local prosecutors exercise similar power and discretion
over the expenditure of their budgets, although most state and local
prosecutors have greater budgetary constraints. Their financial re-
sources do not compare to the deep pockets of federal prosecutors.41
Like federal prosecutors, however, discretionary decisions to allocate
extraordinary resources to particular cases are made in private and are
subject only to a small possibility that the public may discover the
decisions, disapprove, and respond in the electoral process.42
Jurisdiction and Time Limitations
Federal and state prosecutors do not serve indefinitely or without

jurisdictional limitations. United States attorneys serve during the
administration of the appointing president and may be removed when
a new president is elected.43 Each U.S. attorney prosecutes cases in
her geographical district and may pursue only federal crimes. Elected
state and local prosecutors operate within similar limitations. They are
elected for a set term to prosecute violations of the state criminal
code.44
In light of the broad scope of federal and state criminal laws,45 the
temporal and jurisdictional limitations on federal and local prosecutors
serve to define rather than limit their power. They exercise vast dis-
cretion within these confines. Furthermore, these boundaries are ir-
relevant to the issue of accountability. Even though their power is
limited to a defined area and period of time, there is no system in place
that effectively holds prosecutors accountable to the people they serve.
THE EFFECT OF THE MEDIA

ON PROSECUTORIAL ACCOUNTABILITY
The existing mechanisms of accountability—the electoral system,

budgetary restrictions, and time and jurisdiction limitations—fall far
short of effectively controlling prosecutorial power. The difficult
question is whether more effective systems of accountability actually
would help to eliminate the arbitrary exercise of prosecutorial dis-
cretion. Even if there were systems in place to monitor unwarranted
disparities and the public were made aware of them, would the public
hold prosecutors accountable? The lack of outcry about even extreme
cases of misconduct suggests that the public probably would not be
outraged by other less stark injustices that play out in more subtle ways,
like the race and class disparities that prosecutors may unintentionally
cause. Many of the extreme examples of prosecutorial misconduct
discussed in chapter 7 were made public, sometimes in widely dis-
tributed newspapers and other media outlets. However, there was little
or no public response. The prosecutors who engaged in misconduct
either continued to serve as prosecutors or advanced to other more
prestigious or lucrative careers. These examples suggest that more trans-
parency in prosecutor offices and a more informed electorate would
not necessarily result in more accountability.
The Role of the News Media
Although prosecutorial misconduct is rarely revealed to the general

public, on the occasions when it has been reported in newspapers and
other media outlets, there has not been a significant response from the
public, nor have the offending prosecutors suffered any reprisals.46
One reason may be that there has not been sufficient reporting of
prosecutorial misconduct in the news media. More investigative re-
porting may be necessary to discover the many cases of prosecutorial
misconduct that are rarely revealed to the public, and then there must
be wide and frequent media coverage to assure that the public receives
the information.
The American public receives most of its news through electronic
media, especially television.47 Newspaper subscriptions continue to de-
cline as more and more people access internet news services and other
electronic news sources, such as cable and radio programs.48 Although
Americans watch an average of thirty hours of television per week,49
they only watch an average of sixty minutes of news programming
each day.50 In comparison, the average American who reads a news-
paper does so only for about seventeen minutes per day.51 These facts
suggest that the most effective way to inform the public of prosecu-
torial misconduct is through the electronic media and a broad range of
television programs.
The media has a great deal of control over what the public learns
about our legal system. The overwhelming coverage of high-profile
celebrity trials on news and other types of television and radio shows
demonstrates how the media can flood the airways with information
and influence the public’s views about crime and criminal justice is-
sues. The coverage of the O. J. Simpson and Michael Jackson trials
provide stark examples.52
Members of the public who have had no personal experience with
the criminal justice system may form their impressions of how the sys-
tem works solely on the basis of what they see on television. Television
programming about the legal system, even real trials that are televised,
often serves to misinform the public, because many of the trials shown
on television, particularly those of celebrity defendants, bear very little
resemblance to how most trials are conducted in cases involving or-
dinary citizens. Thus, the constant saturation of the airwaves with
stories about high-profile cases and the opinions of the pundits may in
fact defeat legitimate goals, such as educating the public about how our
criminal justice system really works. This is especially true when the
information provided is not accurate or when choices are made to air
sensational stories that serve no purpose other than the titillation of the
viewing public.
The heavy influence of the media on public opinion and the

media’s excessive focus on crime may shed some light on why the
public does not hold prosecutors more accountable for their behavior.
A disproportionate number of news stories focus on crime—‘‘if it
bleeds, it leads.’’ According to the Project for Excellence in Journal-
ism, crime reports comprised 24 percent of local news programs from
1997 to 2002.53 Reporting stories about crime is certainly an impor-
tant responsibility of the news media. The public can play an important
role in assisting law enforcement officials in the apprehension of in-
dividuals who commit crimes. In addition, the public has the right to
know about criminal activity for a variety of reasons, including safety
and prevention.
However, the overreporting of crime stories may create the im-
pression that crime is more widespread than it is.54 It may also generate
unnecessary fear among the viewing public, and this fear may influ-
ence the extent to which the public requires prosecutors to perform
their responsibilities ethically and responsibly. A viewing public that is
led to believe that it is in constant danger of being harmed by crimi-
nals may be willing to look the other way if prosecutors engage in
misconduct—even intentional misconduct—as long as they are suc-
cessful in getting criminals off the street. If members of the public are
so frightened by the possibility that they may not be safe that they are
willing to overlook illegal behavior by prosecutors, then increased
news reporting of misconduct will not convince them to hold pros-
ecutors accountable for their misbehavior.
The Image of the Prosecutor in the Popular Media
Although many members of the public do not read the newspaper or

watch news programs in large numbers, they do watch many hours of
other television programs every day. Television shows about crime
and lawyers are among the most popular, and prosecutor roles are
featured in many of these shows.55 One of the most popular shows is
Law and Order, which focuses on the investigation and prosecution of
criminal cases. The first half of the show features detectives who in-
vestigate crimes and arrest suspects, and the second half focuses on the
prosecution of the case, including courtroom scenes. Law and Order is
the longest running crime series and second longest running drama
series in the history of television.56 The show ranked fifth among
drama series for the 2003–2004 season, with an average of 15.9 million
viewers. Successful spinoffs from the series include Law and Order:
Special Victims Unit, Law and Order: Criminal Intent, Crime and Pun-
ishment, Law and Order: Trial by Jury, and Conviction.57
Clearly, many members of the public receive knowledge of and
form opinions about the prosecution function from images they re-
ceive in the popular media, especially fictionalized television shows. In
light of its popularity and the sheer numbers of viewers who watch it,
the Law and Order series alone undoubtedly informs many members of
the public about prosecutors.58 For some members of the viewing au-
dience, these television shows provide their sole education about the
prosecution function. Even those who watch news shows learn very
little about what prosecutors do every day from news reports about
crime.
Law and Order and other crime shows almost always portray pros-
ecutors as heroes who put away the bad guys. This image of the
prosecutor as the crime fighter who keeps the community safe is not
inaccurate, but it is certainly incomplete. Television crime dramas rarely
deal with issues like prosecutorial misconduct, race or class disparities,
or the arbitrary exercise of prosecutorial discretion. Movies present a
similar image of prosecutors.59 With rare exceptions,60 the dark side of
prosecution is not the subject of movies about crime.
Even on the occasions when television shows depict prosecutors
engaging in misconduct, or bending, if not breaking, the rules, their
conduct is often portrayed as justifiable. For example, an occasional
theme on Law and Order involves a younger, more idealistic prose-
cutor who will attempt to follow the law while a more experienced
prosecutor focuses on getting a conviction. The younger prosecutor
will suggest that they follow the rules, and the older prosecutor
will respond with a speech about how he will do whatever he needs
to do to put the guilty defendant behind bars, regardless of what the
rules say.
An episode entitled ‘‘Misconception’’ demonstrates this theme. In
this episode, a young couple plots to swindle a wealthy man by having
the woman engage in an affair with him and then claim that her
pregnancy is a result of the affair. When the blackmail fails, the couple
hatches a plan in which the young man will attack the woman to make
it appear that the wealthy gentleman tried to forcefully end the
pregnancy. The couple then plans to sue him for civil damages. When
the prosecutors uncover the deception, they are outraged and want to
try the two for the murder of their unborn baby. Under New York
law, however, a fetus cannot be murdered until it reaches twenty-four
weeks. At the time of the attack, the woman was only twenty-two
weeks pregnant, so there is legally no crime.61
Regardless of the fact that no crime was committed, the district at-
torney, Adam Schiff, and his chief assistant district attorney, Ben Stone,
engage in a debate over the propriety of trying the couple for murder:
Schiff: You want the jury to ignore the evidence.

Stone: Chris and Amy want the jury to look at the law. I’ll
get the jury to look at Chris and Amy.
Schiff: The law’s supposed to be a shield, not a sword.
They’re despicable, yes, but by the letter of the law,
they’re not guilty.
Stone: The legislature could never have conceived of any-
thing like this. Wrong should not win by technical-
ities. You know that yourself.
Schiff: Get these bastards off the street.62
This quick exchange epitomizes espousal of the ‘‘persistent privileging

of a private sense of justice over law when the two conflict.’’63 Instead
of highlighting the inappropriateness of the prosecutor’s behavior, the
show glorifies the prosecutor as the public’s hero, even as he proposes
to engage in misconduct.
These shows—especially episodes that acknowledge and implicitly
justify prosecutorial misconduct—may unconsciously reinforce an ac-
ceptance of prosecutorial misconduct in the name of fighting crime.
The combination of these images in fictionalized crime dramas, the
dearth of news reporting and other public information about prose-
cutorial misconduct, and the overreporting of crime stories help to
foster an atmosphere of permissiveness and indifference toward pros-
ecutors who break the rules. These factors may also help to explain
why the public’s perception of the prosecution function is so one-

sided and entrenched.
THE NEED FOR REFORM
For the most part, the media, the electorate, the judiciary, and the
legislature have taken a ‘‘hands-off ’’ approach towards the American
prosecutor, most likely because of the nature of prosecutorial re-
sponsibilities. Prosecutors enforce the law against people accused of
committing crimes—an unpopular group in a country with one of the
most punitive approaches to crime in the world.64 Because law en-
forcement is such a high priority in this country, there may be less
interest in fairness in the prosecutorial process than in apprehending
and punishing criminals at any cost. A more hopeful view of why
prosecutors have not been held accountable is that so much of their
conduct is private and protected from public scrutiny. This view
would suggest that more thorough, accurate, and widespread report-
ing of the prosecution function, including misconduct, would result
in more accountability.
The prosecution function is essential to the administration of jus-
tice. Although there may be disagreement on whether certain be-
haviors should be criminalized and the extent to which we use in-
carceration to punish criminal behaviors, most Americans agree that
the prosecution of people who commit serious crimes is essential to a
free and orderly society. However, it is important not only that those
who perform this critical function do so in a manner that is legal and
fair but also that they perform their duties and responsibilities in ac-
cordance with the highest ethical standards. Prosecutors should not
seek to shield themselves from meaningful public accountability. In-
stead, they should acknowledge the breadth of their power and discre-
tion and promote effective accountability in ways that are consistent
with law enforcement goals.
The founders were right when they established accountability as a
core constitutional value. And the electoral process can provide that
accountability, but only if there is an engaged, fully informed elec-
torate. An ideal system for the prosecution function would permit and
encourage independent decision-making by a prosecutor who is
regularly held accountable by an independent, fully informed elec-
torate. The legislature, the legal profession, and the general public
must implement significant reforms to assure the appropriate balance
of independence and accountability. Chapter 10 will discuss specific
proposals designed to control prosecutorial power and bring mean-
ingful accountability to this important function of the justice system.
TEN
Prospects for Reform
Reform of the prosecution function is an essential component in any

movement to eliminate unwarranted disparities and other injustices in
our criminal justice system. However, prosecutorial reform promises
to be a complicated undertaking for a variety of reasons. First, the need
for reform is born of multiple, complex causes. The many state, local,
and federal prosecutors perform their duties and responsibilities in a
variety of ways. Most prosecutors are motivated by a desire to enforce
the law in ways that will produce justice for the communities they
serve. However, all too often, their well-intentioned prosecutorial
decisions produce unintended, undesirable results, such as dissimilar
treatment of similarly situated victims and defendants. Other prose-
cutors are motivated primarily by the desire to win and advance their
careers. These prosecutors are more likely to do whatever it takes to
secure convictions and thus are more likely to engage in prosecutorial
misconduct, as discussed in chapter 7. Thus, the need for reform and
the type of reform needed will vary from office to office.
Second, reform will be difficult because there is not widespread
belief that it is necessary—either in the prosecution community or the
public at large. Reform is most likely to be successful with the support,
or at least the cooperation, of prosecutors and their constituents. How-
ever, prosecutors traditionally have resisted even modest efforts at
reform.1 The public, inundated by one-sided images of prosecutors in
the news and popular media, and bereft of information about the most
important functions that prosecutors perform, is far from viewing
reform as an important priority. Thus, much education and advocacy is
179
needed to secure the support of prosecutors and their constituents.

Even if this support is secured, legislation may be necessary to ensure
that needed reforms are implemented.
In light of the complexity and scope of the issues, no single strategy
will achieve successful reform. As discussed in chapter 7, the legal rem-
edies for prosecutorial misconduct have not been effective. Chapters
2–6 reveal that arbitrary, unsystematic decision-making without con-
sideration of the possible disparities it may produce, exacerbated by
unconscious race and class predilections, sometimes results in disparate
treatment of similarly situated victims and defendants. There have
been very few efforts to correct these injustices through prosecutorial
reform. Thus, a multifaceted approach initiated from outside and in-
side of the prosecution community will likely produce the most suc-
cessful results. Reform of the prosecution function should, at a min-
imum, seek to achieve two goals: (1) the elimination of the arbitrary
exercise of prosecutorial discretion, and (2) the establishment of ini-
tiatives to strengthen the current mechanisms of prosecutorial ac-
countability. This chapter will explore the possibilities.
EXTERNAL REFORM—THE RESPONSIBILITY

OF THE LEGAL PROFESSION
External reform of the prosecution function must include: (1) strength-

ening ethical rules and bar disciplinary proceedings and otherwise raising
the standard of practice among prosecutors; (2) strengthening the elec-
toral and appointment processes for prosecutors by increasing transpar-
ency in prosecution offices and educating the public about the prose-
cution function; and (3) passing legislation, when necessary, to ensure
that essential components of reform efforts are realized.
Lawyers must take the lead in reforming the prosecution function.
The support and cooperation of the public is necessary, but lawyers must
assume the responsibility for generating that support and cooperation. If
not the legal profession, then who? Only lawyers have the knowledge
of and commitment to appropriate ethical behavior and the highest
standard of performance within the profession. All lawyers, including
prosecutors, are required to conduct themselves according to rules of
professional conduct. Beyond the required ethical rules, the ABA has
published advisory standards for the prosecution function. Few prose-
PROSPECTS FOR REFORM 181
cutors affirmatively consult or attempt to abide by the ABA standards in

their daily practice, and state bar disciplinary proceedings have not been
effective in remedying prosecutorial misconduct.2 Thus, the legal pro-
fession must take the lead in strengthening the disciplinary process and
implementing reforms to assure that prosecutors follow the ABA stan-
dards and otherwise take steps to ensure that their discretionary decisions
do not cause or perpetuate injustices in the system.
Reform efforts should be generated from the legal profession as a
whole, through national, state, and local bar associations. Although crim-
inal defense lawyers must play a vital role in the effort because of their
knowledge of the issues, they are not in the best position to initiate reform
efforts. Criminal defense lawyers would not be seen as credible because
of perceived and actual bias against prosecutors. More important, they
must maintain the delicate and sometimes conflicting balance of serving
as both adversary and negotiator in their dealings with prosecutors as they
continue to represent their clients. Thus, the entire profession must play a
significant role in demanding reform and requiring the highest standards
of practice from the prosecution community.
STRENGTHENING THE DISCIPLINARY PROCESS
National, state, and local bar associations should begin prosecutorial

reform efforts by conducting in-depth investigations and evaluations of
state disciplinary proceedings to determine (1) why they have not been
effective in remedying prosecutorial misconduct, and (2) whether and
what changes might make the process more effective. There are a
number of reasons why this reform should take priority over others.
First, the profession should seek to remedy intentional prosecutorial
misconduct before tackling the unintentional prosecutorial practices
that result in disparities and other injustices in the system. Behav-
ior that is recognized by the courts as misconduct is a much easier tar-
get than the subtle, unconscious behavior that results in race and class
disparities. Although some may believe that unconscious, uninten-
tional practices are too difficult to correct or should not be the subject
of reform because of the absence of bad faith, few would sanction
prosecutors breaking established rules. Second, the harm caused by
intentional prosecutorial misconduct is much more palpable than the
dissimilar treatment of similarly situated people. Everyone understands
the very real harm caused by a prosecutor who withholds exculpatory

evidence that could free an innocent person from death row. Not
everyone cares if one guilty criminal defendant serves more time than
another similarly situated guilty defendant, primarily because of the
unpopularity of people accused of crimes.
The second reason why strengthening the disciplinary process
should be the top priority for reform is because the U.S. Supreme
Court has identified this process as the appropriate remedy for pros-
ecutorial misconduct.3 As discussed in chapter 7, the Supreme Court
provides no remedy for prosecutorial misconduct in cases involving
harmless error, and it provides prosecutors immunity from civil law-
suits. The Court proposed that offending prosecutors be referred to
state disciplinary authorities. However, an investigation by the Center
for Public Integrity revealed only forty-four cases since 1970 in which
prosecutors faced disciplinary proceedings for misconduct.4 In the
majority of the cases in which allegations of misconduct were sus-
tained, prosecutors received punishment no more serious than a
censure or a reprimand. The misconduct in these cases included dis-
covery violations, using false or misleading evidence in the prosecu-
tion of cases, and threatening or harassing witnesses.
Since the remedy proposed by the Supreme Court for serious and
unmistakable cases of intentional misconduct has proven ineffective,
the legal profession must make this reform its highest priority. The
Criminal Justice Section of the ABA should submit a resolution to the
ABA’s House of Delegates proposing that state and local bar associa-
tions evaluate their attorney disciplinary processes to determine whether
they have been effective in remedying prosecutorial misconduct. The
state and local bar associations should form task forces to conduct the
evaluations. These task forces should first determine the number of
complaints of prosecutorial misconduct that have occurred within a
prescribed time frame and how they were resolved. They should then
meet with members of the local trial court to determine the extent to
which there have been claims of prosecutorial misconduct in the
courts and whether members of the judiciary have referred offending
prosecutors. Each jurisdiction may decide the extent to which it
wishes to conduct an empirical study of the issue, but at a minimum,
the task forces should do the type of data collection performed by the
Center for Public Integrity. If it is determined that the disciplin-
ary process has been underutilized for complaints of prosecutorial
misconduct, each task force should determine the reasons for its un-
derutilization and propose reforms to make it a more effective mech-
anism for remedying these claims.
The lack of transparency in prosecution offices is an overriding
concern. If it is determined that there are far fewer complaints to the
state disciplinary authorities than there are to the courts, the task forces
may reasonably conclude that members of the bench and bar are failing
to refer offending prosecutors. However, a low number of complaints
in a particular jurisdiction—in the courts and with the state disciplinary
authorities—may be interpreted in different ways. Low numbers may
indicate that prosecutors in that jurisdiction rarely engage in prose-
cutorial misconduct. A dearth of complaints might also suggest that
prosecutorial misconduct is not being discovered.5 If the lack of trans-
parency is preventing the discovery of prosecutorial misconduct,
legislation may be required, as discussed below.
The ABA should also undertake a comprehensive study and review
of the Model Rules of Professional Conduct with the specific goal of
determining the extent to which these rules fail to address critical as-
pects of the prosecution function. As discussed in chapter 8, the cur-
rent rules are silent on many of the most important prosecutorial duties
and responsibilities. The ABA should determine the extent to which
the rules might be amended or whether it would be more appropriate
to draft a separate code of professional responsibility for prosecutors, as
some scholars have suggested.6
STRENGTHENING THE ELECTORAL

AND APPOINTMENTS PROCESSES
As discussed in chapter 9, the electoral process has not served as an

effective mechanism for holding prosecutors accountable to their
constituents. Low voter turnout is an overarching problem that affects
all elected officials, including prosecutors. Voters need far more in-
formation than they are presently provided in order to elect their
prosecutors and hold them accountable. First, they need a better general
understanding of the prosecution function—what prosecutors do ev-
ery day and how they perform their duties and responsibilities. Second,
they need specific information about the prosecution offices in their
communities—how the district attorney for their city or county
performs his or her responsibilities. Accordingly, reform should in-

clude (1) public information campaigns aimed at educating the public
about the prosecution function; (2) prosecution review boards to in-
form the public about how particular prosecution offices perform their
day to day duties and responsibilities; and (3) racial disparity studies that
reveal whether and the extent to which race-neutral prosecutorial
decision-making produces racially disparate results.
Public Information Campaigns
The organized bar should implement public information campaigns that

would provide information to the public about routine prosecution
duties and responsibilities. These campaigns would not provide infor-
mation about specific cases or any other information that would hinder
law enforcement efforts. Instead, they would educate the public about
how prosecution offices function: their purpose, goals, duties, and re-
sponsibilities. For example, the campaigns would provide general in-
formation on the charging decision, the grand jury, and plea bargaining.
This information could be provided in brochures that would be avail-
able in courthouses and other public buildings. It might also be presented
in programs at town meetings and other public forums, as well as on
television and radio public service announcements and programs.
The implementation of public information campaigns would be
consistent with recent prosecution efforts to promote communication
with the public about prosecution programs. For example, community
prosecution offices have been implemented in many jurisdictions to
involve prosecutors with the communities they serve.7 These offices
seek input from residents about their community goals and how
prosecutors might help to promote them. The public information
campaigns would complement this effort and both empower citizens
to hold prosecutors accountable and help promote confidence in the
criminal justice system.
Prosecution Review Boards
The organized bar should establish prosecution review boards. The

purpose of these boards would be to review complaints and conduct
random reviews of prosecution decisions to deter misconduct and

arbitrary decision-making. These boards would differ in several ways
from the proposed ‘‘Misconduct Review Board’’ included in an early
draft of the CPA of 1998.8 The misconduct review board, originally
proposed but ultimately excluded from the final version of the CPA,
would have reviewed the rulings of the attorney general on public
complaints of misconduct. The proposal defined ten specific acts of
misconduct9 and permitted members of the public to file a complaint
with the attorney general if they believed that any Justice Department
attorney had engaged in the proscribed conduct. If the attorney general
made no determination or imposed no penalty for the alleged mis-
conduct, the person who filed the original complaint could resubmit it
to the misconduct review board. If the board found misconduct, it could
imposeanappropriatepenalty,includingprobation,demotion,dismissal,
referral of ethical charges, loss of pension or other retirement benefits,
suspension, or referral to a grand jury for possible criminal prosecu-
tion.10
The primary distinction of the prosecution review board would be
the addition of a random review process. The board would not only
review specific complaints brought to its attention by the public but
also conduct random reviews of routine prosecution decisions. These
random reviews could be conducted in a variety of ways. One method
might involve the board’s review of a selection of the closed files in a
particular prosecution office and an examination of the file entries for
each decision. The board would closely examine charging and plea
bargaining decisions and look for compliance with the ABA’s prose-
cution standards. These random examinations would encourage pros-
ecutors to implement a practice of giving written reasons for their de-
cisions. Board members would be permitted to interview prosecutors,
victims, and witnesses to determine if the prosecutors met the estab-
lished standards. Unlike state disciplinary proceedings, random review
would not be dependent on the fortuitous discovery of practices or
policies that are currently hidden from public view. It would permit
affirmative investigations to discover bad practices, and its random na-
ture would more likely deter arbitrary prosecution decisions.
The board would file a public report upon completion of the
review. The report would not reveal any information about particular
cases, but would report specific practices and policies that either vi-
olated or complied with the ABA Prosecution Function Standards.
The board might recommend disciplinary action against a particular

prosecutor, refer specific prosecutors to state ethical boards, or simply
recommend improvements. On the other hand, the board might file a
report commending a prosecution office as a model in the promotion
of the fair administration of justice. Public release of all reports would
promote accountability.
Prosecution review boards might be established at the state, county,
or local level. Members of the boards would be appointed by the gov-
ernor, county executive, or mayor, depending on the board’s juris-
diction. Board members should include attorney and nonattorney
members, with an effort to include former prosecutors, who would
assure balance and whose knowledge and expertise would be essential
to the board’s work.
Racial Disparity Studies
Much has been written documenting the racial disparities and race
discrimination at every stage of the criminal process.11 Given the in-
adequacy of current legal remedies to combat race discrimination in
the criminal justice system,12 the Court’s affirmation of broad prose-
cutorial discretion,13 and the high legal barriers erected to discourage
selective prosecution claims,14 other remedies must be constructed and
implemented. As discussed in earlier chapters, prosecutors frequently
make race-neutral charging and plea bargaining decisions that produce
racial disparities. Fortunately, in light of their immense power and
discretion, they are uniquely positioned and empowered to remedy
these injustices most effectively and efficiently.
The elimination of race discrimination is totally consistent with the
responsibility of the prosecutor to seek justice, not simply win con-
victions.15 The duty to seek justice is not limited to the prosecutor’s
responsibilities in individual cases but also applies to the administration
of justice in the criminal justice system as a whole. In fact, the prose-
cutor’s duties include the oversight function of ensuring fairness and
efficiency in the criminal justice system.16 Those duties should include
recognizing injustice in the system and initiating corrective measures.17
Not every disparity is evidence of discrimination. Since many le-
gitimate factors affect prosecutorial decisions, it may be appropriate
to treat victims and defendants differently, even in similar cases. A
prerequisite to eliminating race discrimination in the criminal process

is the determination of whether the dissimilar treatment of similarly
situated people is based on race rather than some legitimate reason.
Whether the treatment is intentional or purposeful should not matter—
the goal should be elimination of harm.
Thus, the organized bar should first implement racial impact
studies designed to reveal racially discriminatory treatment. Second,
the bar should publish and widely disseminate these studies to the
general public. The studies would compel prosecutors to acknowledge
and focus on the important issue of racial disparity. These studies
would assure that the issue is addressed by prosecutors in the electoral
process and would provide additional information to the public about
the extent to which the elimination of racial disparity is a priority in a
particular prosecution office.
Racial impact studies would involve the collection of data on the
race of the defendant and victim for each category of offense and the
status of the case at each step of the prosecutorial process. For example,
in each case involving an arrest for possession of cocaine, the prose-
cutor would document the race of the defendant, the defendant’s
criminal history, the initial charging decision, each plea offer made,
accepted, or rejected, and the sentence advocated by the prosecutor. If
relevant, the prosecutor should also document whether and how a
decision was made to charge in federal versus state court and whether a
departure from the sentencing guidelines was sought. The statistics
would be collected for each type of offense so that an appropriate
statistical analysis comparing the disposition of the cases of white and
African American defendants and victims could be done. These studies
not only would be helpful in determining whether defendants of color
receive harsher treatment for the same criminal behavior but also, in
cases involving victims, would demonstrate whether cases involving
white victims were being prosecuted more vigorously than cases in-
volving African American victims. The data would also indicate whether
similarly situated defendants and victims of different races are treated
the same at each step of the process.18 Are defendants in cases in-
volving white victims initially charged with the same offense as sim-
ilarly situated defendants in cases involving black victims? Do they
receive comparable plea offers? Do prosecutors advocate for the same
dispositions at the sentencing hearings? The collection of this data
would provide answers to these questions.
The data may help to reveal the extent to which whites are being
arrested and presented for prosecution by law enforcement officers. If
the majority of the cases in any particular category of offense involve
African American defendants, the prosecutor should investigate further
to determine whether African Americans comprise a majority of the
population in that jurisdiction. If they do, the data would not neces-
sarily indicate the selective detention and prosecution of African Ameri-
cans. If African Americans do not comprise a majority of the popula-
tion, further investigation would certainly be warranted, particularly if
there is a considerable difference between the arrest rates and the African
American population. The further investigation should attempt to de-
termine whether African Americans commit the crime in question at
greater rates than whites. In the absence of credible evidence that they
do, the prosecutor should presume that no one particular race is in-
herently more likely to commit certain types of crimes.19
Significant conclusions could not be reached from the simple col-
lection of data without the appropriate statistical analysis. The Baldus
study used in McCleskey v. Kemp exemplifies the model statistical
analysis of this type of data.20 Widely acclaimed as one of the most
thorough and statistically sound analyses of sentencing, the Baldus study
examined thousands of murder cases over a seven-year period and
took into account thirty-nine nonracial variables most likely to in-
fluence sentencing patterns in Georgia before reaching the conclusion
that the race of the victim had a statistically significant correlation with
the imposition of the death penalty.
Similar studies in prosecutors’ offices would determine whether ra-
cial disparities exist in the prosecution of all types of cases and whether
the disparities are statistically significant. A Baldus-type study that takes
those factors into account would be essential to the credibility of the
evaluation, because there are so many legitimate, nonracial factors that
may be considered in prosecutorial decisions. This type of evaluation
would indicate whether, and to what extent, disparate treatment of
similarly situated victims and defendants is based on race.
The racial impact studies must be published and widely dissemi-
nated to produce the desired result. These studies would inform the
public about the possible discriminatory effects of prosecution policies
and practices. They would force a public debate about racial disparities
and compel prosecutors to be truly accountable to their constituents.
Prosecutors could do this either by establishing policies and practices
to help eliminate the disparities or by explaining that there are legit-

imate, race-neutral reasons for such disparities. If the public was not
satisfied with the results of the study, the efforts to eliminate the dis-
parities, or the prosecutor’s explanation for disparities, it could then
remove the prosecutor from office through the electoral process. The
public debate would also help the prosecutor to establish workable
remedial policies and practices. Thus, public access to the studies
would motivate prosecutors to correct inequities and help to make the
electoral process a more meaningful check on unacceptable prosecu-
torial practices.
THE PROSECUTORIAL RESPONSE

AND THE NEED FOR LEGISLATION
Both of the proposals for reform made here—strengthening the dis-

ciplinary process and strengthening the electoral process—stand a
much better chance of success with the cooperation and support of
prosecutors. However, it is likely that a substantial number of prose-
cutors will oppose these reforms. Some will believe there is no need for
reform, and that the current mechanisms of accountability are oper-
ating successfully. Others may believe that there is always room for
improvement but disagree with the suggested strategies for reform—
particularly the call for more transparency in prosecution offices. The
extent to which prosecutors will support efforts for reform of the
prosecution function will vary from office to office—depending on
the prosecutor’s views of how she should perform her duties and re-
sponsibilities.
Although all of the reform strategies would be easier to imple-
ment and more effective with the cooperation of prosecutors, two
strategies—prosecution review boards and racial impact studies—
could not be implemented without the full cooperation of prosecutors
in the absence of enforcement legislation. Each of these strategies
requires prosecutors to disclose information they would not otherwise
be required to disclose by law. Prosecutors would undoubtedly resist
these efforts for the same reasons they have resisted the discovery of
their internal decisions in the past.
Criticisms of both strategies would undoubtedly include the Su-
preme Court’s reasons for deferring to prosecutorial discretion in
Wayte v. United States: ‘‘Examining the basis of a prosecution delays the

criminal proceeding, threatens to chill law enforcement by subjecting
the prosecutor’s motives and decision-making to outside inquiry, and
may undermine prosecutorial effectiveness by revealing the Govern-
ment’s enforcement policy.’’21 Prosecutors understandably also would
be concerned about the time and resources necessary to implement
these strategies. The prosecutor’s primary function is law enforcement;
any undertaking that substantially interferes with that responsibility
would be subject to legitimate criticism.
In the case of racial impact studies, for example, if the collection of
data were a tedious process that substantially interfered with the per-
formance of important prosecutorial duties, most prosecutors would
object to the studies. Prosecutors, however, could collect the relevant
information in an efficient, nonintrusive manner. Prosecutorial offices
could create forms with checklists on which the prosecutors could
quickly and easily note the relevant information.22 Most prosecutors
routinely make written entries in case files whenever an action is taken
in a particular case. These forms or checklists could be kept in the same
case file and would involve no more time than the routine case file
entries. The only difference would be the type of information and the
format for its collection. The information also might be collected
electronically in an equally efficient manner.
Time is not the only relevant factor. Few prosecutor offices would
have the expertise or resources to perform the necessary statistical
analysis of the collected data for racial impact studies. For that reason,
the organized bar should help to secure these resources. One possible
solution to the resource problem may be the volunteer efforts of local
colleges and universities. Criminology and criminal justice depart-
ments may be willing to conduct such research and would provide a
wealth of resources through the use of graduate students from various
departments. The studies would provide a great public service as well
as a rich academic experience for professors, scholars, and students. Use
of university resources would also give the project the necessary ob-
jectivity that would be lacking if the prosecutors conducted it them-
selves.
Prosecutors may claim that the publication of review board reports
and racial impact studies might chill law enforcement by subjecting the
prosecutor’s motives to outside inquiry. This argument suggests that
prosecutors might be hesitant to prosecute certain cases if they believe

that members of the public, criminal defendants, or victims will question
their decisions. Thus, according to this argument, some criminal activity
will not be prosecuted. However, the goal of the publication of the
studies is not to chill appropriate and fair law enforcement but to totally
eliminate unfair, discriminatory law enforcement. To the extent that law
enforcement tactics or prosecutorial policies involve misconduct or
discriminate on the basis of race, they should not merely be chilled—
they should be entirely eliminated and replaced with tactics that enforce
the law fairly and impartially. The reports and studies, and the knowl-
edge that they will be published, should cause prosecutors to be more
careful and meticulous in making decisions and should motivate pros-
ecutors to follow ethical rules and assure that similarly situated victims
and defendants are treated equitably.
The Supreme Court’s concern that judicial interference with pros-
ecutorial discretion would undermine prosecutorial effectiveness by
revealing the government’s enforcement policy would not apply to the
publication of these reports or studies. The Supreme Court was con-
cerned that if criminals were aware of how and under what circum-
stances cases are prosecuted, they would adjust their behavior to avoid
prosecution. For example, if it were common knowledge that a pros-
ecution office had a policy of only prosecuting cases involving more
than five grams of cocaine, dealers and users would distribute or possess
quantities less than five grams. The publication of review board reports
and racial impact studies would not generate this concern, because the
studies would not reveal specific law enforcement policies unless they
involved misconduct, in which case they should be exposed and elimi-
nated. The information in these studies and reports would be limited
to general demographic data.
In light of anticipated prosecutorial opposition, the organized bar
might need to propose legislation to enforce these reforms. In addition
to the prosecution review boards and racial impact studies, prosecu-
tors might oppose other reform efforts as well. The state and local bar
associations should meet with national prosecutor organizations such
as the National District Attorneys Association to discuss and address
their concerns and to seek their input and support. However, legis-
lation ultimately may be required to assure that the reforms are im-
plemented.
A MODEL REFORM EFFORT
In 2005, the Vera Institute of Justice23 established its Prosecution and

Racial Justice Project with the goal of helping prosecutors ‘‘manage
the exercise of discretion within their offices in a manner that reduces
the risk of racial disparity in the decision-making process.’’24 The
project’s methodology is similar to that of the aforementioned racial
impact studies, in that it involves the collection of data in prosecution
offices to determine whether similarly situated defendants are treated
differently at the charging and plea bargaining stages of the process in
ways that reflect unconscious racial bias. This groundbreaking project
was made possible in large part by the willingness of three chief
prosecutors to grant Vera Institute staff broad access to their offices in
order to track decision-making at key discretion points with the goal
of identifying patterns of disparity. If such patterns are found, the chief
prosecutors would then attempt to ascertain the cause or causes so that
they may take corrective action where and when necessary.
These prosecutors—Peter Gilchrist of Charlotte, North Carolina,
Paul Morrison of Johnson County, Kansas, and Michael McCann of
Milwaukee, Wisconsin25—all enjoy an excellent reputation in the
prosecution community and in their local jurisdictions. Other factors
that made these prosecutors ideal candidates for the project included
the location of their offices and the demographics of their commu-
nities. However, each of the prosecutors easily could have declined the
offer to participate in the project. It is a time-consuming and invasive
effort, and there are no obvious political benefits. Nonetheless, each
prosecutor decided to accept the offer to participate because of his or
her commitment to fairness and racial justice.
The Vera Institute staff began their work in Peter Gilchrist’s office
in Charlotte, North Carolina. The first challenge was to assure staff
prosecutors and support staff that the purpose of the project was not to
assign blame for racial disparities, but to assist them in their shared goal
of enforcing the law effectively and fairly. A number of key factors
assisted the Vera staff in building a relationship of trust with the
prosecution staff. One of the most important ones was the leadership of
the project director, Wayne McKenzie. McKenzie is an experienced
prosecutor in the Kings County District Attorney’s Office who took
a leave of absence from his office to direct the Prosecution and Ra-
cial Justice Project at Vera. His leadership provided the project with
the credibility and trust necessary to securing the support and buy-in
of the prosecutors involved in the project and also will help to per-
suade other prosecutors to agree to similar projects in their offices.
Another important factor that helped to secure support for the project
was the fact that the data collection and management system that
Vera would implement for the purpose of discovering possible bias also
would be a very useful tool for prosecutors and other staff as they
worked to manage their caseloads and measure general outcomes in
their office.
The most important difference between the previously proposed
racial impact studies and the Vera Institute’s Prosecution and Racial
Justice Project is in how the collected information will be used. A key
component to the success of racial impact studies is the publication of
the studies. The purpose of these studies would be not only to inform
prosecutors of how unconscious bias may affect their decision-making
but to inform the general public as well. However, the Vera Institute
prosecutors agreed to participate in the project with the understanding
that they would voluntarily address any findings of unconscious bias
and make their own decisions about whether, and the extent to which,
the findings of the project would be made public.
The Prosecution and Racial Justice Project will certainly, at a min-
imum, make some progress toward addressing unintended bias in the
exercise of prosecutorial discretion in these three offices. If the project
reveals bias, the prosecutors are committed to taking steps to address it.
Solutions would vary, depending on how and at what stage of the
process the bias occurs. The project’s findings would advance the
development of policies and practices to eliminate or reduce unwar-
ranted disparities based on unconscious bias.
The main limitation of the project is its dependency on the volun-
tary efforts of the prosecutors themselves. Although these prosecutors
are committed to eliminating bias in the decision-making process, they
may or may not choose to reveal the project’s findings to the general
public. Nonetheless, the project has great potential for inspiring similar
data collection projects in prosecution offices throughout the nation,
with the encouragement and leadership of the prosecutors involved in
the project. Their standing in the prosecution community provides
them with the credibility to persuade other prosecutors to take simi-
lar voluntary action. They might also be instrumental in helping
to establish policies and practices that the National District Attorneys
Association and other national prosecution organizations may endorse

and promote to their membership.
The Vera Institute’s Prosecution and Racial Justice Project will be
completed in 2008. Whether or not the data collected in each of-
fice demonstrates evidence of unconscious bias, the project should
inspire similar efforts in other prosecutors’ offices if it proves beneficial
to the offices involved. However, without the leadership of the pro-
ject’s chief prosecutors and/or the publication of the Project’s findings,
the full potential of the Project may not be realized.
CONCLUSION
Prosecutorial reform promises to be a long-term, complicated en-

deavor, in light of the complexity of the prosecution function and the
vast differences in the exercise of discretion in prosecution offices across
the nation. Of the many reform efforts suggested in this chapter, some
may work in some jurisdictions but not in others. None of the pro-
posals may be suitable in some locations, demonstrating the need for
continued efforts to improve and develop the prosecution function.
The most successful reform efforts will involve the cooperation of
prosecutors, the organized bar, and the concerned public. All efforts
should work toward assisting prosecutors in the fulfillment of the goal
of ‘‘doing justice’’ for all.
NOTES
1. Prosecutorial Discretion
1. I was a staff attorney at the PDS for the District of Columbia from 1982
to 1988, deputy director from 1988 to 1991, and executive director from
1991 to 1994.
2. Brady v. Maryland, 373 U.S. 83 (1963).
3. Id. at 87 and n. 2.
4. Id. at 87.
5. See Angela J. Davis, Prosecution and Race: The Power and Privilege of
Discretion, 67 Fordham L. Rev. 13, 19 (1998) (arguing that prosecutorial
discretion, ‘‘which is almost always exercised in private,’’ renders the prose-
cutor the most powerful official in the criminal justice system); Bennett L.
Gershman, The New Prosecutor, 53 U. Pitt. L. Rev. 393, 448 (1992) (de-
scribing the American prosecutor ‘‘as the most pervasive and dominant force
in criminal justice’’); see also James Vorenberg, Decent Restraint of Prosecutorial
Power, 94 Harv. L. Rev. 1521, 1555 (1981) (suggesting that the power held
by the American prosecutor is inconsistent with due process standards); Daniel
J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the
Discretion of Sentencers, 101 Yale L. J. 1681, 1696 (1992) (positing that the
federal sentencing guidelines enhance the power of American prosecutors by
diminishing the power of the judiciary).
6. See Atwater v. City of Lago Vista, 532 U.S. 318, 322 (2001) (holding that
an officer may make a warrantless arrest of an individual, even for very mi-
nor criminal offenses, without violating the Fourth Amendment upon the
showing of probable cause); see I.C.A. x 321.485 (West 1997) (authorizing a
peace officer to immediately arrest an individual for certain traffic offenses);
D.C. Code Ann. x 40-302 (1967) (rendering the operation of a motor vehicle
after the revocation of an operator’s permit an arrestable offense); Tex. Tran.
Code Ann. x 545.413 (1999) (authorizing a peace officer to conduct a
warrant-less arrest of an individual found in violation of state seatbelt laws).
195
196 NOTES TO PAGE 7
7. See Andrew J. Taslitz, Stories of Fourth Amendment Disrespect: From Elian

to the Internment, 70 Fordham L. Rev. 2257, 2270 and n. 81 (2002) (stating
that racial profiling violates the principles of a ‘‘jurisprudence of respect’’);
Tracy Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 342
(1998) (stating that pretextual traffic stops on the basis of race should constitute
a violation of the Fourth Amendment); Jeremiah Wagner, Racial (De)Profiling:
Modeling a Remedy for Racial Profiling After the School Segregation Cases, 22 Law
& Ineq. J. 73, 95 (2004) (arguing that racial profiling is a form of segregation);
William M. Carter, Jr., A Thirteenth Amendment Framework for Combating Racial
Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 26 (2004) (discussing psychologists’
findings that racial profiling can inflict ‘‘serious emotional anguish’’).
8. See, e.g., KRS x 15A.195; C.R.S. x 42-4-115; K.S.A. x 22-4604;
Tenn. Code Ann. x 38-1-402, www.profilesinjustice.com.
9. Although the practice of racial profiling was widely condemned, after
the bombing of the World Trade Center towers on September 11, 2001, the
practice of racially profiling individuals who appeared to be of Middle Eastern
descent was revived. See Charu A. Chandrasekhar, Flying While Brown: Federal
Civil Rights Remedies to Post 9/11 Airline Racial Profiling of South Asians, 10
Asian L. J. 215, 215 (2003) (stating that perpetrators of racial profiling have
increasingly targeted South Asians, Arabs, and those of Middle Eastern descent
after the September 11, 2001, attacks); Marie A. Taylor, Immigration Enforce-
ment Post–September 11: Safeguarding the Civil rights of Middle Eastern–American
and Immigrant Communities, 17 Geo. Immigr. L. J. 63, 90 (2002) (arguing that
the government has ‘‘implicitly condoned’’ the practice of racial profiling by
‘‘creating the impression that all persons of Arab or Middle Eastern descent are
dangerous or potential terrorists’’); see also Sharon L. Davies, Reflections on the
Criminal Justice System After September 11, 2001, 1 Ohio St. J. Crim. L. 45, 45
(2003) (arguing that the amorphous ethnic characteristic of ‘‘Middle Eastern–
ness’’ alone possesses no useful predictive power for separating innocents from
potential terrorists’’); David A. Harris, New Approaches to Ensuring the Legiti-
macy of Police Conduct, 22 St. Louis U. Pub. L. Rev. 73, 74 (2003) (criti-
cizing the practice of racial profiling against individuals of Middle Eastern
descent).
10. See, e.g., General Electric Co. v. Joiner, 522 U.S. 136 (1997); Raymond
T. Elligett, Jr., & John M. Scheb, Appellate Standards of Review —How Im-
portant Are They? 70 Fla. B. J. 33 (1996).
11. See Jennifer Liberto, Judge Won’t Preside over Certain Cases, St.
Petersburg Times, Sept. 27, 2003, www.sptimes.com (reporting on a recent
decision to prevent County Judge Peyton Hyslop from presiding over first-
appearance felony hearings in the wake of Hyslop’s decision to lower the bail
amount of a defendant charged with a violent offense who was subsequently
arrested for another violent crime while free on bail).
NOTES TO PAGES 7–8 197
12. Mandatory minimum sentencing laws and mandatory sentencing

guidelines have been criticized widely for producing unfair results in particular
cases. See John S. Martin, Jr., Why Mandatory Minimums Make No Sense, 18
Notre Dame J. L. Ethics & Pub. Pol’y 311, 313 (2004) (positing that ‘‘the
disparate application of mandatory minimum sentences in cases in which
available data suggest that a mandatory minimum is applicable appears to be
related to the race of the defendant, where whites are more likely than non-
whites to be sentenced below the mandatory minimum standard.’’); Testimony
of Judge William W. Wilkins, Jr., Chairman United States Sentencing Commission,
6 Fed. Sent. R. 67 (1993) (stating that mandatory minimums ‘‘undercut
certainty in sentencing’’); Daniel J. Freed, Federal Sentencing in the Wake of
Guidelines: Unacceptable Limits on the Discretion of Sentencers, 101 Yale L. J.
1681, 1702 (1992) (arguing that federal sentencing guidelines have failed to
ensure uniformity in sentencing because of their complexity and rigidity). See
infra chapter 6 for discussion of the federal sentencing guidelines.
13. See Robert S. Blanco, Mixing Politics and Crime, 59 Fed. Probation
91 (1995) (discussing the case of Willie Horton, a Massachusetts man who
commited a brutal murder while released on parole); see also Doyle v. Elsea,
658 F. 2d 5123 (7th Cir. 1981); Kenner v. Martin, 645 F. 2d 1080 (6th Cir.
1981).
14. See, eg., 1995 N.Y. Laws 3; 1998 N.Y. Laws 1; Miss. Code Ann. x
47-7-3; 61 P.S. x 331.19.
15. See Scott P. Johnson & Christopher E. Smith, White House Scandals
and the Presidential Pardon Power: Persistent Risks and Prospects for Reform, 33
New Eng. L. Rev. 907, 907 (1999) (criticizing President Ford’s pardon of
Richard Nixon because it was motivated by ‘‘partisan interests’’); The Fallout
from Ford’s Rush to Pardon, Time, Sept. 23, 1974, at 11 (discussing the con-
sequences of Ford’s decision to pardon Nixon); Charles Shanor & Marc
Miller, Pardon Us: Systematic Presidential Pardons, 13 Fed. Sent. R. 139, 143
(2000) (arguing that the ‘‘highly controversial pardons issued by President
Clinton at the end of his presidency do a disservice to the pardon power with
its solid constitutional foundations’’).
16. See, e.g., Davis, supra note 5, at 17 (stating that prosecutorial discre-
tion is a major cause of racial inequality in the criminal justice system);
Vorenberg, supra note 5, at 1555 (stating that unchecked prosecutorial dis-
cretion as it exists today in the United States is inconsistent with due process
standards); Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. &
Criminology 717, 722 (1996) (proposing the implementation of restraints on
the power of the prosecutor by tying prosecutorial discretion directly to the
availability of prison resources); Gershman, supra note 5, at 394 (discussing
the need to decrease the power of the prosecutor to restore equilibrium to the
criminal justice system).
198 NOTES TO PAGES 8–10
17. See infra chapter 7 for discussion of series on prosecutorial misconduct

published in the Chicago Tribune and Pittsburgh Post-Gazette.
18. See discussion of United States v. Armstrong in infra chapter 6.
19. See discussion of mandatory minimum sentencing laws and sen-
tencing guidelines in infra chapter 6.
20. See discussion in infra chapter 9.
21. See Sir Frederick Pollock & Frederic William Maitland, The History
of English Law 476 (2d ed. 1923) (‘‘To pursue the outlaw and knock him on
the head as though he were a wild beast is the right and duty of every law
abiding man.’’).
22. Id.
23. Mario M. Cuomo, The Crime Victim in a System of Criminal Justice, 8
St. John’s J. Legal Comment. 1, 4 (1992).
24. Joan E. Jacoby, The American Prosecutor: A Search of Iden-
tity 8 (1980).
25. Id.
26. Id.
27. See id. at 3–39 (discussing the origins and development of American
prosecution); cf. Policing & Prosecution in Britain, 1750–1850 (Douglas
Hay & Francis Snyder eds., 1989) (containing essays debating the extent to
which the system of private prosecutions served the wealthy over the poor).
One justification for private prosecutions was that ‘‘[s]tate prosecutions were
associated with autocratic regimes and abuses of power, while private pros-
ecutions were seen as important safeguards of English freedom.’’ Randall
McGowen, New Directions and Old Debates in the History of English Criminal
Law, 43 Stan. L. Rev. 799, 799 (1991) (reviewing Policing and Prose-
cution in Britain, 1750–1850 (Douglas Hay & Francis Snyder eds., 1989)).
28. Jacoby, supra note 24, at 7.
29. See generally Juan Cardenas, The Crime Victim in the Prosecutorial Process,
9 Harv. J. L. & Pub. Pol’y 357, 359–66 (1986) (tracing the history of the
conviction in the legal process).
31. Id. at 8.
32. Police officers frequently initiate prosecutorial proceedings in simple
criminal cases, often presenting the charges, examining witnesses, and ad-
dressing the magistrates. If the case is particularly complex, the police will hire
a solicitor or barrister. The growing trend in modern England is public
funding of solicitors’ offices within police departments. Cardenas, supra note
29, at 363.
33. Id. at 366.
34. Id. at 367.
35. Id.
36. Id.
37. Cardenas, supra note 29, at 367–68.
38. Id. at 368–69.
40. Cardenas, supra note 29, at 368.
41. Id. at 369.
42. Id. (noting that the attorney general only initiated prosecution in cases
of special importance to the Crown).
43. The Dutch system of using a schout (a combination of a sheriff and a
prosecutor) was adopted in the Dutch settlements of Connecticut, Delaware,
Pennsylvania, New Jersey, and New York, while some southern colonies
borrowed the Scottish practice of using a public prosecutor. Id. at 370–71;
Jacoby, supra note 24, at 11–15; Abraham S. Goldstein, Prosecution: History of
the Public Prosecutor, in Encyclopedia of Crime and Justice 1286–87 (San-
ford H. Kadish ed., 1983).
45. Id.
46. Jacoby, supra note 24, at 22; Goldstein, supra note 43, at 1287.
47. Goldstein, supra note 43, at 1287 (reviewing the emergence of elected
prosecutors in states).
48. See D.C. Code Ann. x 23-101 (1998) (explaining that the District of
Columbia is unique in its status as a city that is not part of any state gov-
ernment and has no local or state prosecutor. Thus, the U.S. attorney for the
District of Columbia prosecutes local and federal crimes).
49. See Goldstein, supra note 43, at 1287 (describing the history and
current state of elected prosecutors).
50. Id. at 1288 (illustrating lessons learned from the electoral process).
51. Judiciary Act of 1789, ch. 20, 1 Stat. 73, 92–93.
52. ‘‘And there shall . . . be appointed . . . a meet person learned in the law
to act as attorney for the United States . . . who shall be sworn or affirmed to
the faithful execution of his office, whose duty it shall be to prosecute [[cases,
except in state supreme courts].’’ Id. at 92. The Act also described the role of
the meet person assigned as attorney general, who shall ‘‘conduct all suits in
the Supreme Court in which the United States shall be concerned, and to give
his advice and opinion upon questions of law when required by the President
of the United States, or when requested by the heads of any departments,
touching any matters that may concern their departments, and shall receive
such compensation for his services as shall by law be provided.’’ Id. at 93.
53. See Lawrence Lessig & Cass R. Sunstein, The President and the Ad-
ministration, 94 Colum. L. Rev. 1, 16 (1994) (discussing the framers’ per-
ception of the executive branch and arguing that they did not support a
unitary, hierarchical executive).
54. Id. at 16–17 (describing the transition in supervisory roles accounting

for prosecutorial oversight).
55. See id. at 17 n. 65 (citing Leonard D. White, The Jeffersonians: A
Study in Administrative History, 1801–1829, 340 (1951)) (describing the
overlapping oversight roles among three federal agencies).
56. See id. at 18–20 (detailing citizen-initiated prosecutions).
57. See Jacoby, supra note 24, at 30 (describing postwar crime and
emergent state investigative roles).
58. Id. at 28 (quoting National Commission on Law Observance and
Enforcement, Report on Prosecution 11 (1931)).
59. Id. at 30.
60. Id. at 31.
62. Id.
63. Id.
64. Id.
65. See generally James Vorenberg, Decent Restraint of Prosecutorial Power, 94
Harv. L. Rev. 1521 (1981) (criticizing the acceptance of broad prosecutorial
discretion and suggesting specific proposals for reform).
66. See Shelby A. Dickerson Moore, Questioning the Autonomy of Prose-
cutorial Charging Decisions: Recognizing the Need to Exercise Discretion—Knowing
There Will Be Consequences for Crossing the Line, 60 La. L. Rev. 371, 377 (2000)
(recognizing that prosecutorial discretion seeks to ‘‘alleviate the pressures of a
criminal code that tends to make a crime of everything that people find
objectionable’’); Leslie C. Griffin, The Prudent Prosecutor, 14 Geo. J. Legal
Ethics 259, 263 (2001) (stating that prosecutorial discretion is necessary to
prevent ‘‘legislative over-criminalization,’’ as there are numerous criminal
statutes that ‘‘should not be enforced at all.’’); Cynthia Kwei Yung Lee,
Prosecutorial Discretion, Substantial Assistance, and the Federal Sentencing Guide-
lines, 42 UCLA L. Rev. 105, 159 (1994) (positing that prosecutorial discretion
responds to the problems of legislative overcriminalization).
67. Moore, supra note 66, at 378; Griffin, supra note 66, at 263; Lee, supra
note 66, at 161, 165.
68. U.S. Const. art. II x 3.
69. Wayte v. United States, 470 U.S. 598, 607 (1985).
70. See, e.g., MD Rules, rule 16-812, Model Rules of Prof’l Con-
duct R. 3.8 (detailing guidelines and responsibilities for prosecutors); W. Va.
Code x 7-4-1 (describing the duties and responsibilities of a prosecuting
attorney).
71. See, e.g., Law and Order (NBC television show); Law and Or-
der: Criminal Intent (NBC television show); NYPD Blue (ABC television
show).
2. The Power to Charge
1. Interview with Michele Roberts, partner, Akin Gump Strauss Hauer

& Feld LLP (Dec. 18, 1997).
2. Interview with Bernie Grimm via e-mail (November 21, 2006).
3. County of Riverside v. McLaughlin, 500 U.S. 44, 56–58 (1991). How-
ever, if the hearing has been unreasonably delayed, even if it occurs less than
forty-eight hours after the defendant’s arrest, there may still be a violation. Id.
4. See infra chapter 4 (discussing the relationship between prosecutors and
crime victims).
5. According to the Supreme Court, the role of grand jury as finder of
probable cause is one of the oldest charges given to the grand jury. Branzburg
v. Hayes, 408 U.S. 665, 686–87 (1972). See generally Charles H. Whitebread
& Christopher Slobogin, Criminal Procedure x 23.05 (3d ed. 1993)
(discussing more thoroughly the powers of the grand jury).
6. Hurtado v. California, 110 U.S. 516, 534–35 (1884).
7. Twenty-three states (Alabama, Alaska, Delaware, Florida, Kentucky,
Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New
Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio,
Rhode Island, South Carolina, Tennessee, Texas, Virginia, and West Vir-
ginia) plus the District of Columbia require that indictments be used to charge
certain crimes. These states tend to follow federal practice, requiring that
indictments be used to charge serious crimes and allowing other charging
instruments to be used to bring charges for minor felonies and misdemeanors.
See generally Susan Brenner et al., Federal Grand Jury: A Guide to Law and
Practice, www.udayton.edu (providing information on both federal and state
grand juries).
8. ‘‘[P]robable cause is a flexible, common-sense standard. It merely re-
quires that the facts available to the officer would ‘warrant a man of reasonable
caution in the belief ’ . . . that certain items may be contraband or stolen
property or useful as evidence of a crime; it does not demand any showing that
such a belief be correct or more likely true than false. A ‘practical, non-
technical’ probability that incriminating evidence is involved is all that is
required.’’ Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted).
9. See United States v. Williams, 504 U.S. 36–37 (1992) (holding that
federal grand juries are not constitutionally required to disclose exculpatory
information to grand juries). State courts are split on the issue of whether a
prosecutor has the duty to present exculpatory evidence in the grand jury.
States fall into one of three categories regarding this issue. Three states de-
termined that prosecutors have a broad duty to disclose exculpatory evidence
at the grand jury. Fourteen states determined that prosecutors have a limited
duty to do so. The remaining thirty-three states impose no such duty. See
Sharon N. Humble, Annotation, Duty of Prosecutor to Present Exculpatory Ev-

idence to State Grand Jury, 49 A. L. R. 5th 639 (1997) (detailing the states’
stance on this issue); Johnson v. Superior Court of San Joaquin County, 124 Cal.
Rptr. 32, 36, 539 P.2d 792, 796 (1979) (supporting the view that prosecutors
have a broad duty to disclose all exculpatory evidence at the grand jury); State
v. Skjonsby, 319 N.W.2d 764 (1982) (supporting the view that prosecutors
have a limited duty to present exculpatory evidence to the grand jury but do
not have a duty to present all evidence that may potentially or conceivably be
exculpatory); State v. Acquisto, 463 A.2d 122, 123 (1983) (supporting the view
that prosecutors do not have a duty to disclose exculpatory evidence at a grand
jury proceeding and denying the appellant’s motion alleging that failure to
produce exculpatory evidence created a false indictment); see also William
Glaberson, New Trend Before Grand Juries: Meet the Accused, N.Y. Times, June
20, 2004, at A1(describing trend toward defendants testifying in the grand jury
pursuant to New York law).
10. William J. Campbell, Eliminate the Grand Jury, 64 J. Crim. L. &
Criminology 174, 174 (1973) (‘‘[T]oday, the grand jury is the total captive of
the prosecutor, who, if he is candid, will concede that he can indict anybody,
at any time, for almost anything, before any grand jury.’’), Frederick P. Hafetz
& John M. Pellettieri, Time to Reform the Grand Jury, Champion, Jan./Feb., at
12, 13 (1999). Furthermore, the courts are typically unwilling to punish
prosecutors even if they abuse or misuse the grand jury procedures. Angela J.
Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny,
86 Iowa L. Rev. 393, 428–29 (2001).
11. See, e.g. Ric Simmons, Re-Examining the Grand Jury: Is There Room for
Democracy in the Criminal Justice System, 82 B.U. L. Rev. 1, 31 n. 136 (2002)
citing U.S. Dep’t of Justice, Compendium of Federal Justice Statistics 1990–
1998 (showing that federal grand juries have an annual dismissal rate of less
than 1%).
12. Most jurisdictions, like Michigan, limit the number of grand jury
terms to return an indictment. Mich. Comp. Laws Ann. x 767.26 (2000).
However, some jurisdiction are more specific, such as Texas that gives 180
days to return an indictment, or New York, which only gives 45 days. Tex.
Crim. Proc. Ann. x 32.01 (2003); N.Y. Crim. Proc. Law x 190.80 (1993).
13. D.C. Sup. Ct. R. of Crim. Proc. 48(c).
14. Unless a court rules that it is otherwise admissible under the rules of
evidence, hearsay (an out of court statement offered as proof) is not allowed at
trial. Fed. R. Evid. 802. However, this preclusion doesn’t apply to grand jury
testimony. In fact, the Supreme Court has upheld grand jury indictments
based entirely on hearsay evidence. Costello v. United States, 350 U.S. 359,
362–64 (1956).
15. Standards for Criminal Justice: Prosecution Function x 3-

3.9(a) (3d ed., 1993), www.abanet.org. This rule also instructs prosecutors not
to bring charges that are not supported by enough admissible evidence to
sustain a conviction, an instruction this prosecutor ignored. Id.
16. If I had referred the prosecutor to bar counsel, I would have become
persona non grata to all of the prosecutors in that office, making it difficult for
me to effectively negotiate with them in my representation of other clients.
See infra chapter 7 (detailing the above issue further).
17. See infra chapter 3 (discussing in detail the plea bargaining process).
18. See Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of
Inconsistent Verdicts, 111 Harv. L. Rev. 771, 796–97 (1998) (noting that
compromised verdicts are one reason for inconsistent verdicts); David F.
Abele, Comment, Jury Deliberations and the Lesser Included Offense Rule: Getting
the Courts Back in Step, 23 U.C. Davis L. Rev. 375, 393–94 (1990) (arguing
that compromised verdicts convict the innocent and fail to adequately punish
the guilty because jurors disregard the presumption of innocence and the
requirement of proving guilt beyond a reasonable doubt).
19. Merger is a complex common law criminal concept in which judges are
prohibited from sentencing a defendant more than once for the same criminal
act. According to the Supreme Court, merger is a corollary to the Fifth
Amendment double jeopardy clause. North Carolina v. Pearce, 395 U.S. 711,
717–19 (1969), rev’d on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).
The states also apply the merger doctrine. See generally Mark E. Nolan, Com-
ment, Diverging Views on the Merger of Criminal Offenses: Colorado Has Veered off
Course, 66 U. Colo. L. Rev. 523, 524–53 (1995) (discussing the merger doc-
trine as applied in Colorado), Jim Walden, Criminal Law —Pennsylvania Purports
to Abolish the Common Law Merger Doctrine, 63 Temp. L. Rev. 385 (1990) (noting
Pennsylvania’s application of the merger doctrine), Joseph P. Bennett, Note,
The ‘‘Same Criminal Conduct’’ Exception of the Washington Sentencing Reform Act:
Making the Punishment Fit the Crimes, 65 Wash. L. Rev. 397 (1990) (providing
an explanation of the use of the merger doctrine in Washington).
20. Nightline (ABC News television show, Jan. 21, 2004).
21. Id.
22. Id. In fact, in an interview with Nightline, Ms. Tibitz claimed there
was a general misperception about the charge in the jury room. The jury
members thought it was a misdemeanor and that Marcus would go home after
the trial. Id.
23. Nightly News (NBC television show, Jan. 21, 2004).
24. Nightline (ABC News television show, Jan. 21, 2004).
25. Dixon v. State, 596 S.E.2d 147, 149–51 (2004) (reversing the con-
viction of Marcus Dixon and holding that the legislature intended the
statutory rape and child molestation statutes to protect children from predators
and that a statutory rape in which the defendant was no more than three years
older than the victim could not be punished as felony aggravated child mo-
lestation).
26. Id. at 148. Georgia law classifies statutory rape as a misdemeanor
when the victim is fourteen or fifteen years of age and the defendant is no
more than three years older than the victim. OCGA x 16-6-3(b).
27. District of Columbia v. Buckley, 128 F.2d 17, 20–21 (1942) (recog-
nizing the longstanding principle that a prosecutor may bring several charges
arising out of the same act as a matter of public policy).
28. Standards for Criminal Justice: Prosecution Function x
3-3.9(b), supra note 14 (illustrating several examples of appropriate factors to
consider during the charging phase).
29. However, even if a prosecutor uses factors that are not legitimate, it
remains almost impossible to challenge a prosecutor’s decisions. For example,
in United States v. Chemical Foundation, the Supreme Court found that ‘‘in the
absence of clear evidence to the contrary, courts presume that [prosecutors]
have properly discharged their official duties.’’ 272 U.S. 1, 14–15 (1926)
(citation omitted).
30. A Minneapolis study found that African Americans were stopped 152
percent more than expected and Latinos were stopped 63 percent more than
expected. Minorities were also subjected to discretionary searches more often,
even though discretionary searches of African Americans only produced
contraband 11 percent of the time. Discretionary searches of Caucasian drivers
produced contraband 24 percent of the time. Council on Crime and Jus-
tice & Institute on Race and Poverty, Racial Profiling Study (2003), www
.crimeandjustice.org. See also Lisa Walter, Comment, Eradicating Racial Ste-
reotyping from Terry Stops: The Case for an Equal Protection Exclusionary Rule, 71
U. Colo. L. Rev. 255, 261 (2000) (referring to a Florida study showing that
70 percent of eleven hundred drivers stopped for traffic violations were either
African American or Hispanic); Sean Hecker, Race and Pretextual Traffic Stops:
An Expanded Role for Civilian Review Boards, 28 Colum Hum. Rts. L. Rev.
551, 562 n. 59 (1997) (citing an American Civil Liberties Union survey that
found that while minorities make up only 21.8 percent of violators, they
constitute 80.3 percent of those stopped and searched on Maryland portions
of route I-95); United States v. Leviner, 31 F. Supp. 2d 23, 33-4 (D. Mass. 1998)
(citing several studies that show African Americans are stopped and prose-
cuted more than other citizens); id. at 33 (reducing the sentence of an Af-
rican American defendant, noting that African American motorists are
stopped and prosecuted for traffic stops much more frequently than other
citizens and suggesting that inflated arrest records lead to inequity in sen-
tencing).
31. In United States v. Armstrong, the defendant presented evidence

showing that, while there were as many Caucasian crack dealers and users as
minority dealers and users, minorities were more likely to be prosecuted at the
federal level and Caucasians prosecuted at the state level. 517 U.S. 456, 458–
61 (1996). The federal level provides much harsher punishment for crack
offenses than do state-level proceedings. The Supreme Court found that, even
though prosecutorial discretion is subject to constitutional restraints, a de-
fendant must provide ‘‘clear evidence’’ that a prosecutor has violated the
Constitution. Id. at 465. Similarly in McCleskey v. Kemp, the defendant
provided evidence showing that the death penalty was disproportionately
sought and imposed against black defendants and those found guilty of killing
whites. 481 U.S. 279, 286–87 (1987). While admitting that prosecutorial
discretion could be used in a discriminatory manner, the Court required a
showing of ‘‘exceptionally clear proof ’’ before abuse of discretion can be
found. Id. at 297, 311–12. See also Ashe v. Swenson, 397 U.S. 436, 452 (1970)
(noting that prosecutorial discretion concerning the initiation and scope of a
criminal prosecution is ‘‘virtually unreviewable’’).
32. An illegal arrest violates the Fourth Amendment of the U.S. Con-
stitution. It’s a well-settled principle that when evidence is obtained in vio-
lation of the Fourth Amendment search and seizure provisions, it will be
suppressed and not available for use at trial. Weeks v. United States, 232 U.S.
383, 391–98 (1914). While Weeks only applied to federal searches, Mapp v.
Ohio expanded the exclusionary rule to the states and state actors. Illegally
obtained confessions are subject to the same analysis. The right to be protected
from unreasonable interrogation is protected by the Fifth Amendment, and a
violation results in the exclusion of that evidence from trial. Although pros-
ecutors are not required to dismiss charges when evidence is suppressed, in
most cases it is difficult to continue prosecution without the weapon, drugs,
confession, or other crucial evidence. Mapp v. Ohio, 367 U.S. 643 (1961).
33. See Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a
Small Texas Town (2005) for a complete discussion of the Tulia cases.
34. Terry McEachern accepted a two-year, fully probated suspension
effective June 15, 2005. The bar association found that McEachern violated
rules 3.03 (a) (1), (a) (2), and (a) (5), 3.04 (b), 3.09 (a) and (d), and 8.04 (a) (3)
and (a) (4) by engaging in various practices involving dishonesty, fraud, deceit,
and misrepresentation. The association concluded that McEachern made a
false statement of a material fact to a tribunal, offered and used evidence that
he knew to be false, counseled witnesses to give false testimony, prosecuted an
offense without a showing of probable cause, and failed to timely disclose
evidence to the defense that negated a showing of guilt. In addition to the
suspension, McEachern was also ordered to pay $6,225 in fees. Disciplinary
Actions, 68 Tex. B. J. 753, 758–79 (Sept. 2005).
35. See infra chapter 7 (noting the paucity of referrals of prosecutors to

state disciplinary authorities).
3. Let’s Make a Deal
1. Defendants plead guilty in approximately 95 percent of all cases. See

Dep’t of Justice, Bureau of Statistics, Felony Defendants in Large
Urban Counties in 2000 28 (Dec. 2003), www.ojp.usdoj.gov/bjs/pub/pdf/
fdluc00.pdf.
2. The defendant is entitled to a jury trial if the offense carries a penalty of
more than six months. See Bloom v. Illinois, 391 U.S. 194 (1968).
3. Although some judges sentence the defendant at the time of the plea in
minor misdemeanor cases, sentence is most often postponed so a presentence
investigation can be conducted. See, e.g., Mich. Comp. Laws Ann. x 769.1(1)
(2000). These presentence reports investigate offense characteristics such as
financial and emotional impact of the offense on the victim and offender
characteristics such as age, marital status, education, propensity for vio-
lence, remorse, and past criminal records. See, e.g., Okla. Stat. tit. 22 x 982
(2003).
4. Some prosecutors’ offices have written guidelines or policies, but in
most offices, the chief prosecutor does not require her staff to follow them in
every case. Most offices do not have such guidelines. Robert L. Misner,
Recasting Prosecutorial Discretion, 86 J. Crim L. & Criminology 717, 772
(1996) (noting that only about 12 percent of prosecutors’ offices have written
rules guiding plea bargaining and discussing the obstacles to reforming the plea
bargain system).
5. The judge has the power to detain the defendant after he pleads guilty
and before he is sentenced. See, e.g., Tenn. Code Ann. x 40-35-116(b)–(c)
(giving the judge authority to revoke bail upon a finding of guilty and if such a
revocation is made, the defendant will be held in a secure facility).
6. For a general discussion of caseloads nationwide, their variations across
geographical locations, and the negative impacts of large caseloads, see Jerold
H. Israel, Excessive Criminal Justice Caseloads: Challenging the Conventional
Wisdom, 48 Fla. L. Rev. 761 (1996); Ronald Wright & Marc Miller, The
Screening/Bargaining Tradeoff, 55 Stan L. R. 29, 41 (2002) (noting that case-
loads in recent history have increased due to institutional and doctrinal
changes in the criminal justice system and noting the concurrent increase in
the pressure to plea).
7. See chapter 4 infra, for a detailed discussion of the prosecutor’s unique
relationship with crime victims.
8. See Angela J. Davis, Prosecution and Race: The Power and Privilege of
Discretion, 67 Fordham L. Rev. 13 (1998); see also infra chapters 2, 5, and 6, for
discussions of the effect of class and race on prosecutorial decisions.
9. See infra chapter 6, for a discussion of Attorney General Ashcroft’s
limitation of the federal prosecutor’s plea bargaining power.
10. Fredrick Kunkle, Maryland Seeks Return of Teen in Sex Case, Wash.
Post, July 1, 2003, at B5.
11. MD Code, Criminal Law, x 3-305; MD Code, Criminal Law, x
3-403; MD Code, Criminal Law, x 1-202.
12. Nineteen-Year-Old Potomac Man Sentenced for Role in Sex Assault on
Escort Service Employee, July 15, 2003, http://wjz.com.
13. In her motion to support the plea bargain, the state’s attorney noted
that she believed an adult record reflecting the seriousness of Andrew Klep-
per’s crimes was sufficient punishment. In addition, she believed she had
struck a fair balance between public justice—physically detaining Kleppar an
additional eighteen months and keeping him out of the state for several
years—and leniency: Klepper had a long history of mental illness and treat-
ment that the prosecutor felt needed special accommodation.
14. Some legislatures have explicitly denounced the rehabilitation
method of punishment. For example, the U.S. Senate cited the 1970s as the
turning point from rehabilitation to incarceration and retribution. See S. Rep.
No. 98-225 at 40, n. 16 (1983), reprinted in 1984 U.S.C.C.A.N. 3182 (re-
jecting rehabilitation as an effective model of punishment and noting several
studies the Senate relied on to reach that conclusion).
15. Frontline: The Plea (PBS television show, June 17, 2004), www.pbs.org.
16. Id.
17. Id.
18. See e.g., N.C.G.S.A. x 14-210; I.C. x 18-5410; Okla. Stat. Ann.
Tit. 21 x 504; 13 V.S.A. x 2902.
19. 165 F.3d 1297 (10th Cir. 1999).
20. A majority of the circuit judges may order that an appeal or pro-
ceeding be heard or reheard by the court of appeals en banc when an en banc
consideration is ‘‘necessary to secure or maintain uniformity of the court’s
decisions’’ or the proceeding involves a ‘‘question of exceptional impor-
tance.’’ Fed. Cir. R. Rule 35, 28 U.S.C.A.
21. 165 F.3d 1297 (10th Cir. 1999).
22. Id. at 1309.
23. Id.
24. See Karen Lutjen, Culpability and Sentencing Under Mandatory Minimums
and the Federal Sentencing Guidelines: The Punishment No Longer Fits the Criminal,
10 Notre Dame J. L. Ethics & Pub. Pol’y 389, 399 (1996) (indicating that,
historically, mandatory minimums were set for drug offenses, violent crimes, and
serious felonies).
25. See United States Sentencing Commission, Mandatory Mini-
mum Penalties in the Federal Criminal Justice System 9 (1991) (showing
that trends in the 1970s caused forty-nine states to implement mandatory
minimum penalties by 1983).
26. Prosecutors are already required to provide exculpatory information
to the defense. See Brady v. Maryland, 373 U.S. 83 (1963). However, they are
not required to provide this information before a guilty plea. In addition,
prosecutors regularly fail to provide this information, despite their obligation
to do so. See infra chapter 7, for a full discussion of Brady violations.
4. Prosecutors and the Victims of Crime
1. ‘‘Society wins not only when the guilty are convicted but when
criminal trials are fair; our system of the administration of justice suffers when
any accused is treated unfairly. An inscription on the walls of the Department
of Justice states the proposition candidly for the federal domain: ‘The United
States wins its point whenever justice is done its citizens in the courts.’ ’’ Brady
v. Maryland, 373 U.S. 83, 87 & n. 2 (1963).
2. Interview with Lenese Herbert, former assistant U.S. attorney, U.S.
Attorney’s Office for the District of Columbia, Silver Spring, Maryland, Mar.
10, 2004.
3. Id.
4. Joan E. Jacoby, The American Prosecutor in Historical Context, Prose-
cutor, Journal of the National District Attorneys Association,
May–June 1997, 33, 38.
5. Peggy M. Tobolowsky, Victim Participation in the Criminal Justice Pro-
cess: Fifteen Years After the President’s Task Force on Victims of Crime, 25 N. Eng.
J. on Crim. & Civ. Confinement 21, 22 (1999).
6. Walker A. Matthews III, Proposed Victims’ Rights Amendment: Ethical
Considerations for the Prudent Prosecutor, 11 Geo. J. Legal. Ethics 735, 735
(1998).
7. Tobolowsky, supra note 5 at n. 168.
8. Susan Gegan & Nicholas Ernesto Rodriguez, Victims’ Roles in the
Criminal Justice System: A Fallacy of Victim Empowerment, 8 St. John’s J. Legal
Comment. 225, n.115 (1992).
9. See id. at 246–48 (positing that constitutional amendments should
be passed to afford the victim a more active role in the plea bargaining
process).
10. Interview with Lenese Herbert, supra note 2.

11. D.C. ST x 22-404 (2001).
12. D.C. ST x 22-4514 (b)(2001).
13. The case was brought in 1984. At that time the domestic violence
laws had not been reformed, and many jurisdictions frequently charged even
serious assaults as misdemeanors for a variety of reasons, including lack of
cooperation from victims.
14. My client was no longer living in their home. The judge had released
him pending his trial and ordered him to stay away from the victim.
15. The purpose of the status hearing is to inform the judge whether
there will be a guilty plea or if the case will go to trial. Guilty pleas are usually
taken at the status hearing, but if there is going to be a trial, the judge
confirms the trial date and addresses any pretrial matters the parties wish to
resolve.
16. See Christine O’Connor, Domestic Violence No-Contact Orders and the
Autonomy Rights of Victims, 40 B. C. L. Rev. 937, 942–46 (1999); Cheryl
Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence
Prosecutions, 109 Harv. L. Rev. 1849, 1863–65 (1996) (discussing the effect of
these policies on the rights of women victims).
17. http://venus.soci.niu.edu/~archives/ABOLISH/rick-halperin/july03/
0243.html.
18. Id.
19. Standards established by the National District Attorneys Association,
the Department of Justice, and the American Bar Association include victims’
interests among the factors that prosecutors should consider in their decision-
making processes. National District Attorneys Association, National Prosecution
Standards, x 43.6 (2nd ed., 1991), www.ndaa.org; Department of Justice,
United States Attorneys’ Manual, x 9-27.230 (1997), www.usdoj.gov/
usao/eousa/foia_reading _room/usam/title9/27mcrm.htm#9-27.230; Ameri-
can Bar Association, Standards for Criminal Justice: Prosecution Function x 3-
3.9(b) (3d ed., 1993), www.abanet.org.
20. A mistrial occurs when a trial is aborted after the jury is sworn. The
judge must declare a mistrial and does so on the motion of either party.
Mistrials may be declared when circumstances exist that ‘‘cast substantial
doubt’’ on the overall fairness of the trial. U.S. v. Matthews, 13 M.J. 501, 515
(1982).
21. District of Columbia Crime Rates 1960 –2000, www.disastercenter.com
(noting the crime statistics for 1992).
22. Much attention was focused on the fact that JonBenet’s mother had
entered her in numerous child pageants, but this fact was discovered later, after
the media began reporting the case.
5. Prosecutors and the Death Penalty
1. Death Penalty Information Center, Innocence and the Death Penalty: The
Increasing Danger of Executing the Innocent, www.deathpenaltyinfo.org.
2. See generally, Michael Radelet et al., In Spite of Innnocence
(1992); Sister Helen Prejean, Death of Innocence (2005).
3. Callins v. Collins, 510 U.S. 1141, 1145 (1994), (Blackmun, J., dis-
senting).
4. In Furman v. Georgia, 408 U.S. 238 (1972), the Court held that the
death penalty was unconstitutional as applied. Just four years later, in Gregg v.
Georgia, 428 U.S. 153 (1976), the Court upheld the constitutionality of death
penalty statutes that involve a bifurcated trial with the consideration of ag-
gravating and mitigating factors. Similarly, the Supreme Court reversed itself
in Atkins v. Virginia, 536 U.S. 304 (2002), and held that the execution of
mentally retarded defendants violates the Eighth Amendment. This decision
explicitly overruled the earlier decision of Penry v. Lynaugh, 492 U.S. 302
(1989). Finally, in Roper v. Simmons, 125 S. Ct. 1183 (2005), the Court held
that the execution of defendants who were under the age of eighteen at the
time of their crimes was unconstitutional, reversing their holding in Stanford v.
Kentucky, 492 U.S. 361 (1989).
5. See Death Penalty Information Center, State by State Information,
www.deathpenaltyinfo.org. New York and Kansas are included in the thirty-
eight states with death penalty statutes, but in both of these states, the statutes
were held unconstitutional. See New York v. LeValle, 817 N.E.2d 341 (2004)
(holding that the New York statute’s requirement that the court instruct the
jury that if it failed to unanimously agree on either a death sentence or a
sentence of life without parole, the court would sentence the defendant to life
imprisonment with parole eligibility after serving minimum of twenty to
twenty-five years created an impermissible risk of a coercive and thus arbitrary
and unreliable sentence, in violation of the state constitution’s due process
clause). In April 2005, the New York legislature refused to reinstate a new
death penalty law. See also Kansas v. Marsh, 102 P.3d 445 (2004) (holding
Kansas death penalty statute unconstitutional because it required a finding of
death when the jurors found the aggravating and mitigating factors to be
equal). The U.S. Supreme Court reversed the Kansas Supreme Court, holding
that the statute was constitutional. Kansas v. Marsh 126 S.Ct. 2516 (2006). At
least two former governors—George Ryan of Illinois and Parris Glendenning
of Maryland—declared moratoria on the death penalty during their admin-
istrations. See, e.g., Maryland Death Penalty Moratorium, CBS News, May 9,
2002, www.cbsnews.com. The Illinois legislature subsequently enacted a law
to reform the application of the death penalty, and Ryan’s successor, Gov-
ernor Rob Blagoveich, announced that he would continue to support the
moratorium until the legislative reforms prove effective. In January 2003,

Governor Glendenning’s successor, Governor Robert Ehlrich, lifted Mary-
land’s moratorium on the death penalty and authorized Maryland judges to sign
death warrants.
6. The federal death penalty statute permits the death penalty for treason,
espionage, and certain narcotics offenses. Pub. L. 103-322, title VI, x 60001–
26, Sept. 13, 1994, 108 Stat. 1959 (codified at 18 U.S.C. 3591–98). The
military also permits the death penalty for murder, rape, espionage, and de-
sertion during a time of war. See e.g., 10 U.S.C. x 906(a), 918, 885(c), and
920.
7. In 2003, China, Iran, the United States, and Vietnam were responsi-
ble for 84 percent of the known executions. Death Penalty Information
Center, The Death Penalty: An International Perspective, www.deathpenalty
info.org.
8. See Linda E. Carter & Ellen Kreitzberg, Understanding Capital Punish-
ment Law 86 (2004) (explaining that the federal government and thirteen states
have laws that permit the death penalty for offenses other than homicide,
including treason, kidnapping, and the rape of a child).
9. Woodson v. North Carolina, 428 U.S. 280 (1976).
10. But see Tex. Crim. Proc. Code x 37.071 (Supp. 1976). The Texas
statute does not include aggravating factors but instead limits capital murder to
five specific types of killings.
11. Md. Code Ann., Criminal Law x 2-303 (2003).
12. See, e.g., James S. Liebman, The Overproduction of Death, 100 Colum.
L. Rev. 2030, 2052 (2001) (‘‘Since Furman, an average of about 300 of the
approximately 21,000 homicides committed in the United States each year
have resulted in a death sentence.’’) (footnote omitted); see also Leigh B.
Bienen, Criminal Law: The Proportionality Review of Capital Cases by State High
Courts After Gregg: Only ‘‘The Appearance of Justice’’? 87 J. Crim. L. &
Criminology 130, n. 255 (1996) (noting statistics that show prosecutors in
Maryland rarely seek the death penalty); Richard Perez-Pena, The Death
Penalty: When There’s No Room for Error, N.Y. Times, Feb. 13, 2000, sec. 4, at
3. (stating that prosecutors rarely seek the death penalty in Colorado).
13. See Department of Justice, U.S. Attorneys’ Manual, x 9–10.00,
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/10mcrm.htm.
14. Id.; see infra chapter 6 for discussion of the attorney general’s control
over this process.
15. Death Penalty Information Center, Race of Death Row Immates Exe-
cuted Since 1976, www.deathpenaltyinfo.org.
16. Id.
17. Death Penalty Information Center, Studies and Additional Sources,
www.deathpenaltyinfo.org (citing John Blume, Theodore Eisenburg, &
Marton T. Wells, Explaining Death Row’s Population and Racial Composition,

Journal of Empirical Legal Studies (2004)).
18. United States General Accounting Office, Death Penalty
Sentencing (1990).
19. Gennaro F. Vito & Thomas J. Keil, Capital Sentencing in Kentucky: An
Analysis of the Factors Influencing Decision Making in the Post-Gregg Period, 79 J.
Crim. L. & Criminology 483, 502 (1988).
20. See Leigh B. Bienen et al., The Reimposition of Capital Punishment in
New Jersey: The Role of Prosecutorial Discretion, 41 Rutgers L. Rev. 27 (1988);
see also The Futile Quest for Racial Neutrality in Capital Selection and the Eight
Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45
Wm. & Mary L. Rev. 2083 (2004), for a detailed discussion of studies that
examine the influence of race in the implementation of the death penalty.
21. McCleskey v. Kemp, 481 U.S. 279, 286 (1987).
22. Id. at 286–87.
23. 481 U.S. 279 (1987).
24. Id. at 313, n. 37 (citing ABA Standards for Criminal Justice 3-3.8,
3-3.9 (2d ed. 1982)).
25. Id. at 333–34.
26. Id. at 357–58.
27. See Richard C. Dieter, The Death Penalty in Black and White: Who Lives,
Who Dies, Who Decides, June 1998, www.deathpenaltyinfo.org (summarizing
the findings of Professor Jeffrey Pokorak of St. Mary’s University School of Law).
28. Jeffery J. Pokorak, Probing the Capital Prosecutor’s Prospective: Race of the
Discretionary Actors, 83 Cornell L. Rev. 1811, 1817 (1998) (suggesting the
existence of unconscious bias in death penalty prosecutions).
29. Stephen Bright, Discrimination, Death and Denial: The Tolerance of
Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev.
433, 453–54 (1995).
30. The law was passed by the legislature with the strong backing of
Governor Pataki. The death penalty law was declared unconstitutional in
2004 by the highest New York state court. (See supra note 5.) In April 2005,
the legislature refused to reinstate a new death penalty law. Marc Humbert,
N.Y. Legislators Kill Death Penalty Bill, Associated Press, April 12, 2005,
http://news.yahoo.com.
31. McKinney’s Consolidated Laws of New York, Correction Law
Ch. 43, Art. 22-B, Refs & Annos (2003) (providing that the prosecutor has
120 days to notify a defendant if he intends to seek the death penalty).
32. In the Matter of Rafael Martinez et al., Appellants, v. George E.
Pataki, et. al., Respondents I, 91 N.Y.2d 214, 691 N.E.2d 1002, 668
N.Y.S.2d 978 (1997), www.law.cornell.edu.
33. Harris’s father is Jamaican, and her mother is Indian.

34. Press release, Kamala Harris, Justice for Officer Espinoza, Apr. 24, 2004,
http://sf.indymedia.org.
35. Presidents of the San Francisco Bar Association, the Charles Houston
Bar Association, La Raza Lawyers Association, and the Asian American Bar
Association of the Greater Bay Area participated in a press conference at City
Hall on April 28, 2004, to express the support of their organizations. See
Adriel Hampton, Lawyers’ Associations Back Harris’ Decision, S.F. Examiner,
Apr. 20, 2004, www.sfexaminer.com.
36. Jo Stanley, Harris’ No-Death-Penalty Stance Prompts Legislation, Sa-
cramento Observer, Apr. 27, 2004, www.sacobserver.com.
37. Dean E. Murphy, Killing of Officer Stirs Death Penalty Debate, N.Y.
Times, June 12, 2003, at A7.
38. James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev.
2030, 2078–81 (2000) (ultimately noting that ‘‘the more death sentences a
local prosecutor can obtain, the more votes he will get’’).
39. U.S. General Accounting Office, supra note 19; Richard Dieter,
The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides,
Death Penalty Information Center, www.deathpenaltyinfo.org; Pennsylvania
State Study, Racial and Ethnic Disparities in the Imposition of the Death Pen-
alty, www.courts.state.pa.us/Index/supreme/BiasCmte/FinalReport.ch6.pdf;
Maryland State Commission on Criminal Sentencing Policy, Research on Death
Penalty and Related Topics, www.msccsp.org.
40. Raymond Paternoster and Robert Brame, An Empirical Analysis of
Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal
Jurisdiction, 36–37, http://www.newsdesk.umd.edu/pdf/exec.pdf.
41. Id. at 29.
42. Sarah Koenig, Racial Factor Found in Md. Capital Cases; Those Who Kill
Whites Are More Likely to Face Death Penalty, Study Says; ‘‘Systemic Disparities’’;
Jurisdiction Also Plays Big Role, Examination of State Statute Finds, Balt. Sun,
January 8, 2003, at B1.
43. Id.
6. Federal Prosecutors and the Power of the Attorney General
1. See Edwin Meese III, The Dangerous Federalization of Crime, Hoover

Digest (1999), www.hooverdigest.org (stating that state and local prosecu-
tions constitute 95 percent of all prosecutions in the U.S.).
2. Of the federal criminal laws passed since the Civil War, approxi-
mately 40 percent have been passed since 1970. See James A. Strazzella, The
Federalization of Criminal Law, Task Force on Fed. of Crim. Law Rep.

A.B.A. Crim Just. Sec. at 9–10, app. C (1998).
3. See e.g., False Statement Offense Statute, 18 U.S.C. x 1001 (2004),
amended by PL 109-248,120 Stat 587 ( July 27, 2006) (mandating that any person
who lies to a federal agent may be subject to prosecution, even if the lie is harmless
and does not interfere with an investigation). Congress broadened this statute to
include all false statements to federal officials, in order to protect the government
from ‘‘deceptive tactics.’’ Theo I. Ogune, Judges and Statutory Construction: Ju-
dicial Zombism of Contextual Activism, 30 U. Balt. L. F. 4, n. 154 (2000). The
Federal Conspiracy Statute, 18 U.S.C. x 371, as interpreted by the federal courts,
is also broad. See Lance Cole & Ross Nabatoff, Prosecutorial Misuse of the Federal
Conspiracy Statute in Election Law Cases, 18 Yale L. & Pol’y Rev. 225, 230
(2000) (positing that the statute is broad enough to encompass any conspiracy
designed to impair or obstruct the lawful function of any branch of government).
4. Department of Justice, Organizational Chart (2004), www.usdoj.gov/
dojorg.
5. Although U.S. attorneys handle all litigation in which the United
States is a party, including civil matters, this chapter will only discuss the
federal prosecution of criminal cases.
6. 28 U.S.C. x 542 (2006).
7. Judicial Conference of the U.S., Report of the Federal Courts
Study Committee 106 ( July 1, 1990).
8. Department of Justice, U.S. Attorneys’ Manual x 9-2.031 (2005),
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm#
9-2.031.
9. Id. x 9-27.220 (2005), www.usdoj.gov/usao/eousa/foia_reading_
room/usam/title9/27mcrm.htm#9-27.220.
10. Id. x 9-27.220 cmt. (2005), www.usdoj.gov/usao/eousa/foia_
reading_room/usam/title9/27mcrm.htm#9-27.220.
11. Id. x 1.1 (1997), www.usdoj.gov/usao/eousa/foia_reading_room/
usam/title1/1mdoj.htm.
12. Vicki Haddock, The Jury Never Rests, San Fran. Chron., June 1,
2003, www.sfgate.com.
13. Bob Egelko, Five Years Sought for Pot Grower, San Fran. Chron.,
May 29, 2003, www.sfgate.com.
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-
11.151.
15. United States v. Washington, 431 U.S. 181, 186, 190–191 (1977).
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/11mcrm.htm#9-
11.151.
17. See Ellen S. Podgor, Department of Justice Guidelines: Balancing ‘‘Dis-

cretionary Justice,’’ 13 Cornell J. L. & Pub. Pol’y 167, 170 (2004) (argu-
ing for a heightened review by the judiciary, legislature, and executive
when Department of Justice guidelines in the U.S. attorneys’ manual are
ignored).
18. Some suggest that President Ronald Reagan launched the modern
War on Drugs during a speech he delivered at the Justice Department on
October 14, 1982. See Leslie Maitland, President Gives Plan to Combat Drug
Network, N.Y. Times, Oct. 15, 1982, at A1.
19. See written statement of Gerald B. Lefcourt, President, National
Association of Criminal Defense Lawyers Before the House Appropriations
Comm., Subcomm. Commerce, Justice and State, and the Judiciary, 104th
Cong. (April 1, 1998), www.nacdl.org.
20. Patrick Walker, The Disparity Between the Number of Grand Jury Ses-
sions Convened and the Number of Defendants Indicted, 87 Judicature 178, 182
(2004).
21. See generally Eric E. Sterling, The Sentencing Boomerang: Drug Prohi-
bition Politics and Reform, 40 Villa. L. Rev. 383, 408–12 (1995).
22. 21 U.S.C. x 844 (a) (West 2006) (‘‘a person convicted under this
subsection for the possession of a mixture or substance which contains cocaine
base shall be imprisoned not less than 5 years and not more than 20 years’’).
23. Sterling, supra note 21, at 409.
24. See Harry Litman & Mark D. Greenberg, Reporters’ Draft for the
Working Group on Federal-State Cooperation, 46 Hastings L. J. 1319 (1995)
(discussing criminal prosecution in the context of federalism); Geraldine Szott
Moohr, The Federal Interest in Criminal Law, 47 Syracuse L. Rev. 1127, 1134–
1135 (1997).
www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#
9-27.110.
26. 517 U.S. 456, 459 (1996).
27. See Dan Weikel, U.S. Defends Handling of Crack Cases Drugs: Prose-
cutors Deny Targeting Minorities. But Activists Demand to Know Why Whites Have
Not Been Convicted, L.A. Times, May 26, 1995, at 3; Gary Webb, War on
Drugs’ Unequal Impact on U.S. Blacks, San Jose Mercury News, Aug. 20,
1996, at A1; Gary Webb, Flawed Sentencing Blamed for Disparity, San Jose
Mercury News, Aug. 20, 1996, at A11.
28. See 21 U.S.C. x 841(b)(1)(A)(iii) (West 2006) (requiring a sentence of
ten years under federal law); Cal. Health & Safety Code x 11351–11351.5
(West 1991) (establishing two to five years penalty for distribution of cocaine
under state law).
29. United States v. Armstrong, 517 U.S. at 459.
30. See United States v. Armstrong, 48 F.3d 1508, 1513–14 (9th Cir. 1995)
(en banc), rev’d, 517 U.S. 456 (1996).
31. United States v. Armstrong, 517 U.S. at 469–470.
32. Id. at 465.
33. Id. at 464.
34. See infra chapter 5 (discussing in detail McCleskey).
35. Codified at 18 U.S.C. xx 3141–3150 (1988).
36. 543 U.S. 220 (2005).
37. Mary Pat Flaherty & Joan Biskupic, Justice by the Numbers: De-
spite Overhaul, Federal Sentencing Still Misfires, Wash. Post, Oct. 6, 1996,
at A1.
38. Stephen A. Saltzburg & Daniel J. Capra, American Criminal
Procedure, Cases and Commentaries 1476 (7th ed. 2004).
39. Id.
40. Williams v. United States, 503 U.S. 193 (1992).
41. See Charles J. Ogletree, Jr., The Death of Discretion? Reflections on the
Federal Sentencing Guidelines, 101 Harv. L. Rev. 1938 (1988) (criticizing the
guidelines and considering ways to improve them); Steve Y. Koh, Note,
Reestablishing the Federal Judge’s Role in Sentencing, 101 Yale L. J. 1109, 1111
(1992) (suggesting that ‘‘the mathematical matrix improperly fosters judicial
abdication of the duty of responsible and conscientious sentencing’’); Orrin G.
Hatch, The Role of Congress in Sentencing: The United States Sentencing Com-
mission, Mandatory Minimum Sentences, and the Search for a Certain and Effective
Sentencing System, 28 Wake Forest L. Rev. 185 (1993) (examining whether
the Guidelines meet Congress’s goals); Jack B. Weinstein, A Trial Judge’s
Second Impression of the Federal Sentencing Guidelines, 66 S. Cal. L. Rev. 357
(1993) (discussing his experience with the Guidelines); Kevin R. Reitz,
Sentencing Guideline Systems and Sentence Appeals: A Comparison of Federal and
State Experiences, 91 Nw. U. L. Rev. 1441 (1997) (discussing the appellate
jurisdiction function with the new sentencing system); Kate Stith & Jose
Cabranes, Fear of Judging: Sentencing Guidelines in the Federal
Courts (1998) (showing that the present system has burdened the courts,
dehumanized the sentencing process, and, by repressing judicial discretion,
eroded the constitutional balance of powers); Debate: Mandatory Minimums in
Drug Sentencing, 36 Am. Crim. L. Rev. 1279 (1999) (including a debate
between Judge Stanley Sporkin and Congressman Asa Hutchinson).
42. See Judge Paul D. Borman, Sentencing Law Symposium: The Federal
Sentencing Guidelines, 16 T.M. Cooley L. Rev. 1 (1999) (providing an ex-
planation of the background and intricacies of the Sentencing Guidelines and
stressing the need for a defense attorney at the sentencing hearing with the
complicated procedures and application of the Guidelines).
43. Mary Pat Flaherty & Joan Biskupic, Justice by the Numbers: Prosecutors
Can Stack the Deck; Sentencing Powers Shift from Judges, Wash. Post, Oct. 7,
1996, at A1.
44. United States Sentencing Commission, Guidelines Manual x
5K1.1 (2005).
45. Mary Pat Flaherty & Joan Biskupic, Justice by the Numbers: Prosecutors
and 5K: A Case of ‘‘Bad Faith’’; How Florida Pilot’s Plea Bargain Backfired,
Wash. Post, Oct. 7, 1996, at A12.
46. Ross Galin, Above the Law: The Prosecutor’s Duty to Seek Justice and the
Performance of Substantial Assistance Agreements, 68 Fordham L. Rev. 1245,
1248 (2000).
47. Flaherty & Biskupic, supra note 45.
48. Id.
49. Mary Pat Flaherty & Joan Biskupic, Rules Often Impose Toughest
Penalties on Poor, Minorities; Justice Dept. Says the System Is Free of Bias, Wash.
Post, Oct. 9, 1996, at A1.
50. Named after its sponsor, Congressman Tom Feeney.
51. Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified as amended in
scattered sections of 18, 28, 42 and 47 U.S.C.). The PROTECT Act was
widely known and supported for its child protection measures, such as the
AMBER Alert System and anti–child pornography sections. As a result of the
original bill’s popularity, few in Congress could afford to speak out against
the Feeney Amendment, and fewer still could afford to vote it down. As a
result, the Feeney Amendment passed with little opposition. See Alan Vine-
grad, The New Federal Sentencing Law, Fed. Sentencing Rep. ( June 2003),
2003 WL 22208841, at 5, 7 (noting the amendment received only fifteen
minutes of debate in the House and none in the Senate, and the Protect Act
was passed, over objections from legislators in both houses, 400 to 25 in the
House and 98 to 0 in the Senate).
52. Protect Act, Pub. L. No. 108-21 x 401(k)(2)(B).
53. Edward Walsh & Dan Eggen, Ashcroft Orders Tally of Lighter Sentences;
Critics Say He Wants ‘‘Blacklist’’ of Judges, Wash. Post, Aug. 7, 2003, at A1.
54. Laurie P. Cohen & Gary Fields, Ashcroft Intensifies Campaign Against
Soft Sentences by Judges, Wall St. J., Aug. 6, 2003, at A1 (showing that
judicial intimidation through individualized reporting was a strong possibility
because the Senate Judiciary Committee had already threatened to subpoena
the sentencing records of district court judge James Rosenbaum of Minne-
sota).
55. See Chief Justice William H. Rehnquist, Remarks of the Chief
Justice to the Federal Judges Association Board of Directors Meeting 2 (May
5, 2003), www.supremecourtus.gov/publicinfo/speeches/sp_05-05-03.html
(noting collection of individualized sentencing practices could lead to in-

timidation of judges in performing their judicial duties).
56. See Bruce Moyer, New Sentencing Law Narrows Judicial Discretion, Fed.
Law., May 2003, at 12 (predicting fewer downward departures due to judicial
chilling).
57. Ian Urbina, In Angry Outbursts, New York’s U.S. Judges Protest New
Sentencing Procedures, N.Y. Times, Dec. 8, 2003, at A25.
58. Id.
59. Id.
60. Id.
61. Id.
62. United States v. Mendoza, No. 03-CR-730, 2004 WL 1191118, slip
op. at *6 (C.D. Cal. Jan. 12, 2004).
63. Id.
64. The United States Sentencing Commission has prepared a compre-
hensive summary of the major Supreme Court and circuit court cases con-
cerning sentencing and the Guidelines. Also included are the existing conflicts
among the circuits. See www.ussc.gov/training/court.htm.
65. See, e.g., United States v. Koon, 518 U.S. 81 (1996) (upholding de-
fendants’ downward departures and setting the standard of review as abuse of
discretion).
66. See, e.g., Mistretta v. United States, 488 U.S. 361 (1989) (recognizing
the authority and upholding the constitutionality of the Sentencing Com-
mission and the Guidelines); Stinson v. United States, 508 U.S. 36 (1993)
(holding that the commentary that explains the Guidelines is authoritative).
67. 543 U.S. 220 (2005).
68. See e.g., U.S. v. Wilson, 350 F.Supp.2d 910, 928 (D. Utah 2005)
(stressing that heavy weight needs to be given to the guidelines even though
they became advisory); U.S. v. Barkley, 369 F.Supp.2d 1309, 1311 (N.D.
Okla. 2005) (finding that the sentencing should be consistent with Booker); but
see U.S. v. Myers, 353 F.Supp.2d 1026, 1029 (2005) (‘‘This Court views
Booker as an invitation, not to unmoored decision making, but to the type of
careful analysis of the evidence that should be considered when depriving a
person of his or her liberty.’’). Scholars have argued that the Booker decision
has not resulted in a drastic change in federal sentencing. See James Carr, Some
Thoughts on Sentencing Post-Booker, 17 Fed. Sent. R. 295, 2005 WL 2922210
at 4 (2005) (stating that since Booker, the rate of judicial departures from the
guidelines has been quite low).
69. See Paul McNulty, U.S. Attorney for the Dist. of Va., Speech at
University of Virginia Law School, summarized at www.law.virginia.edu (‘‘If
the bad guys believe that they’re better off going to a judge to get sentenced
rather than agreeing with the government to cooperate—getting certain
benefits for that under the sentencing guidelines as they have in the past—then
our ability to get cooperation is going to go down substantially.’’).
70. See infra chapter 8 (discussing the Thornburgh Memo and prosecu-
torial ethics).
71. See, e.g., United States v. Ferrara, 847 F. Supp. 964, 969 (D.D.C.
1993), aff’d, 54 F.3d 825 (D.C. Cir. 1995) (stating that the memorandum does
not constitute federal law); United States v. Lopez, 765 F. Supp 1433, 1446
(N.D. Cal. 1991), vacated and remanded, 989 F.2d 1032 (9th Cir. 1993), su-
perseded, 4 F.3d 1455 (9th Cir. 1993) (stating that there are ‘‘profound flaws’’
in the policy that are not supported by case law); United States v. Hammad, 846
F.2d 854, 857–58 (2nd Cir. 1988) aff’d on reh’g, 902 F.2d 1062 (2nd Cir. 1990)
(noting that ethical obligations apply to prosecutors).
72. See 28 C.F.R. x 77 (year).
73. 28 U.S.C. x 530B(a) (2004).
74. See infra chapters 7 and 8 (discussing these issues in depth).
75. ‘‘Operation Enduring Freedom’’ was launched against Afghanistan
and its Taliban leaders in October of 2001. The Taliban officially fell on
December 6, 2001, but American forces still remain. The United States of-
ficially began its war against Iraq on March 20, 2003, citing Iraqi links to Al
Qaeda as one of the reasons for attack. These claims of links to Al Qaeda were
later proven to be false. See Philippa Winkler, The War Against Iraq: Whose
Ends, Whose Means? 9 Nexus 163, 163 (2004) (stating that the war in Iraq was
justified by ‘‘non-existent evidence’’ of links between Al Quaeda and the
Ba’ath party in Iraq).
76. Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot
Act), Pub. L. No. 107-56, 115 Stat. 272 (2001).
77. The ACLU has compiled the opinions of several conservative poli-
ticians, groups, and individuals on the Patriot Act, www.aclu.org.
78. Newt Gingrich, The Policies of War: Refocus the Mission, SFGate.com,
Nov 11, 2003, www.sfgate.com.
79. Mimi Hall, Armey: Justice ‘‘Out of Control,’’ USAToday.com, Oct.
16, 2002, www.usatoday.com.
80. U.S. General Accounting Office, Justice Department: Better Manage-
ment Oversight and Internal Controls Needed to Ensure Accuracy of Terrorism-
Related Statistics 1, 13, 17–19 (2003), www.gao.gov/new.items/d03266.pdf.
81. Eric Lichtblau, U.S. Uses Terror Law to Pursue Crimes from Drugs to
Swindling, N.Y. Times, Sept. 28, 2003, at A1.
82. William Walker, 603 Unidentified Detainees Still Held, U.S. Reveals,
Toronto Star, Nov. 28, 2001, at A16 (reporting that some of the detain-
ees were believed to be ‘‘material witnesses’’ to the September 11 terrorist
attacks).
83. Dan Eggen, Deportee Sweep Will Start with Mideast Focus, Wash. Post,
Feb. 8, 2002, at A1 (citing Department of Justice intentions to compile ab-
sconder information into an antiterrorism database).
84. Id.
85. Id.
86. Id.
87. See David Cole, Are Foreign Nationals Entitled to the Same Constitutional
Rights as Citizens? 25 T. Jefferson L. Rev. 367, 386–87 (Spring 2003) (ar-
guing that the right-privilege distinction does not justify denial of immigrants’
rights); David Cole, The New McCarthyism: Repeating History in the War on
Terrorism, 38 Harv. C.R.-C.L. L. Rev. 1, 15 (Winter 2003) (critiquing the
use of administrative processes as substitutes for criminal proceedings); David
Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 974 (May 2002) (critiquing ethnic
profiling for its overbreadth and ineffectiveness).
88. Attorney General John Ashcroft, Memorandum to All United States
Attorneys, Department Policy Concerning Charging Criminal Offenses,
Disposition of Charges, and Sentences (Sept. 22, 2003), www.crimelynx
.com.
89. Id. (contending that sentence should not be dependent on the judge
or prosecutor in a certain case).
90. Ashcroft Plea-Bargain Order Is Potentially Disastrous, Newsday, Sept.
26, 2003, at A40 (noting that if even a fraction of previously plea bargained
cases go to trial, the time demands, cost, and personnel needs for all facets of
the criminal justice system will explode); cf. Gary Fields, Order to Cut Plea
Bargains Draws Ire, Wall St. J., Sept. 23, 2003, at A8 (showing that under a
similar directive, issued by then–attorney general Richard Thornburgh, the
percentage of defendants seeking trial increased).
91. It appears that Ashcroft’s memorandum did not significantly curtail
plea bargaining practices. According to one observer who supported the
memorandum, ‘‘Attorney General John Ashcroft had the right idea when he
attempted to curtail the all-too-common practice of filing more-serious
charges against defendants simply to exert leverage to induce a plea to reduced
charges. Unfortunately, prosecutors in the field either ‘didn’t get that memo’
or simply disregarded it, because the practice continues unabated.’’ Timothy
Lynch, Toward a Better Sentencing System, The Recorder, 5 ( January 28,
2005).
92. Stephanie Francis Cahill, Snipers and Commerce: Dissenting Appeals
Judges Cast Doubt on Prosecutions Using the Hobbs Act, 89 A.B.A. J. 16 (2003).
93. Death Penalty Information Center, www.deathpenaltyinfo.org.
Maryland’s death penalty moratorium, implemented May 9, 2002 by then-
governor Parris Glendening, ended when Robert Ehrilich took office in early
2003. Stephanie Hanes & Sarah Koenig, Balt. Co. Judge Agrees to Execution of
Oken, Balt. Sun, Jan. 22, 2003, at 1A, www.baltimoresun.com. In addition,

Maryland did not have a record of implementing the death penalty on a
regular basis. At the time of these arrests, there had not been an execution in
Maryland since November 16, 1998.
94. Eunice Moscoso & Rebecca Carr, Sniper Suspects to Be Tried in Vir-
ginia, Austin American-Statesman, Nov. 8, 2002, at A16.
95. Id.
96. Id.
97. See Craig Haney & Richard Wiener, Death Is Different, 10 Psychol.
Pub. Pol’y & L. 373 (December 2004) (berating the attorney general for
engaging in a ‘‘macabre version of forum shopping’’). See Joan E. Schaffner,
Federal Circuit Choice of Law: Eerie Through the Looking Glass, 81 Iowa L. Rev.
1173, 1192 (1996) (noting that forum shopping is generally considered to be
unethical). See also George D. Brown, The Ideologies of Forum Shopping —Why
Doesn’t a Conservative Court Protect Defendants? 71 N.C.L. Rev. 649, 667
(1993) (indicating that one of the major dangers of forum shopping is un-
fairness to the defendant).
98. See, e.g., ‘‘Shopping for Justice,’’ Intelligencer J., Nov. 8, 2002, at
A8; Leslie T. Thornton, ‘‘The Day Team Spirit Died,’’ Legal Times, Nov. 18,
2002, at 70.
99. A Am. Jur. 2d Constitutional Law x 236 (West 2006).
7. Prosecutorial Misconduct
1. In the District of Columbia, adult criminal defendants (in both the

federal and local District of Columbia courts) are prosecuted by the U.S.
Attorney’s Office.
2. See http://oag.dc.gov/occ/ (describing the attorney general’s duties,
which include prosecuting juvenile criminal cases). The corporation counsel’s
office is now known as the Office of the Attorney General.
3. See e.g., Joseph F. Lawless, Prosecutorial Misconduct (2003);
Scott Christianson, Innocent: Inside Wrongful Conviction Cases
(2004); Bennett L. Gershman, Prosecutorial Misconduct (1999); Casey
P. McFaden, Prosecutorial Misconduct, 14 Geo. J. Legal Ethics 1211 (2001)
(addressing the ethical obligations of the prosecutor); Peter J. Henning,
Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U. L. Q. 713
(1999) (discussing whether a prosecutor’s misconduct violated defendants’
rights and the existence of potential constitutional remedies); Rick A.
Bierschbach, One Bite at the Apple: Reversals of Convictions Tainted by Prosecu-
torial Misconduct and the Ban on Double Jeapordy, 94 Mich. L. Rev. 1346 (1996)
(arguing that the double jeopardy clause bars retrials under particular condi-
tions when prosecutorial misconduct requires reversal of a conviction).
4. Steve Weinberg & Center for Public Integrity, Breaking The Rules: Who
Suffers When a Prosecutor Is Cited for Misconduct? (2003), www.publicintegrity
.org.
5. Editorial, Policing Prosecutors, St. Petersburg Times, July 12, 2003, at
16A.
6. See Weinberg, supra note 4 (noting that there are countless other cases
in which prosecutorial misconduct occurred but constituted harmless error).
7. See generally, Chapman v. California, 386 U.S. 18, 22 (1967) (adopting
the harmless error rule and deciding that some constitutional errors are not
significant or harmful and therefore do not require an automatic reversal of the
conviction). The Court went on to state that, when determining whether the
error was harmless, the question is whether the evidence might have con-
tributed to the conviction. Id. at 23.
8. See Angela J. Davis, The American Prosecutor: Independence, Power, and the
Threat of Tyranny, 86 Iowa L. Rev. 393, 414–15 (2001).
9. See, e.g., United States v. Armstrong, 517 U.S. 456 (1996).
10. See Rose v. Clark, 478 U.S. 570, 580 (1986) (holding that the harmless
error standard dictates that courts should not set aside convictions if the error
was harmless beyond a reasonable doubt).
11. 318 U.S. 332, 340 (1943).
12. Id. at 341.
13. 411 U.S. 423, 435 (1973).
14. Id.
15. 461 U.S. 499, 506 (1983).
16. 424 U.S. 409, 424–25 (1976).
17. Id. at 430.
18. See Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for
Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693 (1987) (discussing how
infrequently prosecutors are sanctioned for Brady violations).
19. Neil Gordon & Center for Public Integrity, Misconduct and Punish-
ment: State Disciplinary Authorities Investigate Prosecutors Accused of Misconduct
(2003), www.publicintegrity.org.
20. Id.
21. See In re Doe, 801 F. Supp. 478, 489 (D.N.M. 1992) (including the
memorandum from Richard Thornburgh ( June 8, 1989)).
22. See infra chapter 8 (discussing in more detail the Thornburgh Memo
and the CPA).
23. See Department of Justice, Bureau of Statistics, Felony Defendants in
Large Urban Counties, 2000 28 (Dec. 2003), www.ojp.usdoj.gov/bjs/pub/
pdf/fdluc00.pdf.
24. See supra note 20.

25. See infra chapter 8 (discussing prosecutorial ethics and the limitations
of state disciplinary rules).
26. 373 U.S. 83 (1963).
27. 427 U.S. 97 (1976).
28. Id. at 107.
29. Ken Armstrong & Maurice Possley, Verdict: Dishonor, Chi. Trib.,
January 10, 1999, www.chicagotribune.com.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. Id.
37. See Bill Moushey, Win at All Costs, Pitt. Post-Gazette, www.post-
gazette.com.
38. Id.
39. Id.
40. Stephen Garvey, Is It Wrong to Commute Death Row? Retribution,
Atonement, and Mercy, 82 N.C. L. Rev. 1319, 1326 n. 27 (2004) (noting that
19 percent of the reversals of capital convictions or sentences in state court and
18 percent of those in federal court were due to prosecutorial failure to
disclose exculpatory evidence or other forms of prosecutorial misconduct).
41. James S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases,
78 Tex. L. Rev. 1839, 1850 (2000) (citation omitted).
42. See Banks v. Dretke, 540 U.S. 668 (2004).
43. Id. at 704–6.
44. Id. at 674–75.
45. Id. at 677.
46. Id.
47. Id.
48. Id. at 678.
49. Id.
50. Id. at 682.
51. Id.
52. Id.
53. Id. at 683.
54. Id. at 685.
55. Id. at 685–86.
56. Id. at 685.
57. Id.
58. Id. at 684.

59. Id. at 685.
60. Id. at 686.
61. Id.
62. Id. at 686–87.
63. Id. at 689.
64. Id. at 691(citing Strickler v. Greene, 527 U.S. 263, 281–282 (1999)).
65. Id. at 696.
66. See Carissa Hessick, Prosecutorial Subornation of Perjury: Is the Fair Justice
Agency the Solution We Have Been Looking For? 47 S.D. L. Rev. 255, 256 (2002)
(noting that public exposure of Brady violations has increased).
67. See Shih Wei Su v. Filion, 335 F.3d 119, 121, 130 (2d Cir. 2003)
(affirming the conviction of Shih Wei Su, even though Judge Calabresi ac-
knowledged that ‘‘the prosecution knowingly elicited false testimony from a
crucial witness’’). Judge Calabresi reasoned that the prejudice suffered by Shih
Wei Su did not meet the legal standard that would require a dismissal. Id. at
129–30. See Editorial, The Dedge Debacle, Florida Today, 2004 WLNR
16357164 (asserting that Wilton Dedge was wrongfully imprisoned for
twenty-two years before he was finally exonerated by DNA evidence).
Prosecutors allegedly suborned perjury when they knowingly encouraged the
false testimony of a jailhouse snitch in order to win a conviction, and despite
numerous appeals and retrials, no court ever reversed Mr. Dedge’s conviction.
Id. See Andrea Elliot, City Gives $5 Million to Man Wrongly Imprisoned in Child’s
Rape, N.Y. Times, December 16, 2003, www.talkleft.com (stating that Al-
berto Ramos spent seven years in prison for rape he did not commit, because
the Bronx district attorney’s office in New York withheld documents, in-
cluding medical evidence, proving his innocence).
68. See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (recognizing that the
‘‘penalty of death is different in kind from any other punishment imposed under
our system of criminal justice’’); Ford v. Wainwright, 477 U.S. 399, 411 (1986)
(paying careful attention to the adequacy of capital proceedings generally as ‘‘a
natural consequence of the knowledge that execution is the most irremediable
and unfathomable of penalties; that death is different’’); Schiro v. Farley, 510 U.S.
222, 238 (1994) (noting that the unique nature of capital sentencing procedures
‘‘derives from the fundamental principle that death is ‘different’ ’’).
69. See Ring v. Arizona, 536 U.S. 584, 606 (2002) (recognizing that states
have developed complicated sentencing procedures in death cases because of
constraints the Court has held the Eighth Amendment imposes); see also
Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (‘‘Since Furman, our cases
have insisted that the channeling and limiting of the sentencer’s discretion in
imposing the death penalty is a fundamental constitutional requirement for
sufficiently minimizing the risk of wholly arbitrary and capricious action.’’);
Apprendi v. New Jersey, 530 U.S. 466, 522–523 (2000) (Thomas, J., concur-
ring) (stating ‘‘In the area of capital punishment, unlike any other area, we
have imposed special constraints on a legislature’s ability to determine what
facts shall lead to what punishment—we have restricted the legislature’s ability
to define crimes.’’).
70. In 1999, Steve Mills and Ken Armstrong, of the Chicago Tribune,
conducted a multipart investigative series on the status of Illinois’s death
penalty. They examined over 285 capital cases since 1977. After conducting
the study, Mills and Armstrong concluded: ‘‘Capital punishment in Illinois is a
system so riddled with faulty evidence, unscrupulous trial tactics and legal
incompetence that justice has been forsaken.’’ Steve Mills & Ken Armstrong,
Death Row Justice Derailed, Chic. Trib., Nov. 14, 1999, www.chicagotribune
.com.
71. See generally, Ring v. Arizona, 536 U.S. 584, 585 (2002) (holding that
the Sixth Amendment requires a jury, not a judge, to determine the presence
or absence of aggravating factors in a capital sentencing proceeding); Atkins v.
Virginia, 536 U.S. 304, 304 (2002) (determining that executing mentally re-
tarded individuals violates the Eighth Amendment’s ban on cruel and unusual
punishment); Roper v. Simmons, 543 U.S. 551, 551 (2005) (holding that it is
unconstitutional to execute persons who were under the age of eighteen at the
time of their capital crimes).
72. See Adam Liptak & Ralph Blumenthal, Death Sentences in Texas Cases
Try Supreme Court’s Patience, N.Y. Times, Dec. 5, 2004, 2004 WLNR
13102712 (suggesting that the Supreme Court’s Texas death penalty juris-
prudence has been driven, in part, by its growing impatience with the U.S.
Court of Appeals for the Fifth Circuit).
73. Banks v. Dretke, 540 U.S. 668, 692 n. 12 (2004).
74. Weinberg, supra note 4.
75. Id.
76. Ken Armstrong & Maurice Possley, Verdict: Dishonor, Chic. Trib.,
Jan. 10, 1999, at C1.
77. Id.
78. Id.
79. Id.
80. Id.
81. E.g., Cal. Penal Code x127 (West 2006) (stating: ‘‘[E]very person
who willfully procures another person to commit perjury is guilty of subor-
nation of perjury, and is punishable in the same manner as he would be if
personally guilty of the perjury so procured.’’); Cal. Penal Code x 126 (West
2006) (stating perjury is punishable by two, three, or four years in state prison,
and thus, subornation of perjury is also punishable by two, three, or four years
in state prison); Mich. Comp. Laws. Ann. x 750.425 (West 2006) (stating
‘‘[a]ny person who shall endeavor to incite or procure any person to commit
the crime of perjury, though no perjury be committed, shall be guilty of a
felony, punishable by imprisonment in the state prison not more than five
years.’’); Va. Code Ann. x 18.2-436 (West 2006) (explaining that suborna-
tion of perjury occurs ‘‘if any person procure or induce another to commit
perjury or to give false testimony under oath’’); Va. Code. Ann. x 18.2-434
(West 2006) (defining subornation of perjury as a class 5 felony).
82. Ken Armstrong & Maurice Possley, Prosecution on Trial in DuPage,
Chic. Trib., January 12, 1999, at N1.
83. Id.
84. Id.
85. Id.
86. Id.
87. Id.
88. Alden Long, Illinois Prosecutors and Police Acquitted Despite Evidence
They Framed Defendant, June 16, 1999, www.wsws.org.
89. See Law Enforcers Put on Trial, www.angelfire.com.
90. Id.
91. The judge dismissed the claims against Armstrong, finding that he did
not participate in the portion of the article that Thomas claimed to be libelous.
92. See Jury Rules for Chicago Tribune in Prosecutor’s Llibel Case, May 21,
2005, http://abclocal.go.com.
93. Telephone interview with staff attorney Sandra Levick of the PDS for
the District of Columbia, July 17, 2006.
94. See Henri E. Cauvin, Misconduct Probe Cuts Sentences in D.C. Case,
Wash. Post, December 24, 2004, at B1.
95. See Armstrong & Possley, supra note 76.
96. See, e.g., Punish Prosecutors Who Cross the Line, N.Y. L. J. 2 ( January
27, 2004) (describing two citizens’ frustration at the misconduct of prosecu-
tors who contributed to the conviction of an innocent man).
97. See Trial and Error, Chi. Trib., wellengaged.com (listing Tribune
reader responses to the Chicago Tribune’s five-part series on prosecutorial
misconduct on a bulletin board at the newspaper’s website); see Davis, supra
note 8 at 465 (citations omitted).
98. See infra chapter 10 (discussing how the legal profession might in-
stitute reform of the prosecution function).
8. Prosecutorial Ethics
1. See discussion infra chapter 7.

2. Id.
3. Monroe Freedman & Abbe Smith, Understanding Lawyers’

Ethics, 3rd Ed. 5 (2004).
4. Model Rules of Prof’l Conduct, Comm’n on Evaluation of the
Rules of Professional Conduct (‘‘Ethics 2000’’) Chair’s Intro., www.abanet
.org.
5. Id.
6. www.abanet.org. http://www.abanet.org/cpr/mrpc/alpha_states.html.
7. See, e.g., Model Rules of Prof’l Conduct R. 1.5, 1.7, 1.8, 1.17, and
7.2, www.abanet.org.
8. See, e.g., Model Rules of Prof’l Conduct R. 3.3, 3.6, and 4.1,
www.abanet.org.
9. Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the
Joint Conference, 44 A.B.A.J. 1159, 1218 (1958).
10. Model Rules of Prof’l Conduct R. 3.8, www.abanet.org. The
current rule is essentially the same as the original version. The Ethics 2000
Commission only recommended consolidating two of the sections of the
original rule. The current section f is a consolidation of sections e and g of the
previous rule.
12. See Freedman & Smith, supra n. 3 at 314.
13. For example, former AUSA Julie Grahofsky stated that in close cases,
she asked grand jurors not only whether they found probable cause but also
whether they believed the case should go forward. Interview with Julie
Grahofsky, former AUSA, at American University Washington College of
Law, Washington, D.C., May 31, 2005.
14. National District Attorneys Association, National Prosecution Stan-
dards, Std. 43.3, 130 (2d. ed., 1991) www.ndaa-apri.org.
15. Id. at 131 cmt.
16. Irving Younger, Memoir of a Prosecutor, 62 Commentary, 66 (Oct.
1976).
17. 373 U.S. 83 (1963).
18. Id. at 87.
20. See discussion infra chapter 3 (discussing plea bargaining).
21. See Kyles v. Whitley, 514 U.S. 419, 437–38 (1995) (noting that the
Brady rule encompasses evidence known only to police investigators, so the
individual prosecutor has a duty to learn of any favorable evidence known to
others acting on the government’s behalf, including police). But see U.S. v.
Bagley, 473 U.S. 667, 675 (1985) (holding that the prosecutor is not required
to deliver his entire file to defense counsel but only to disclose evidence
favorable to the accused that, if suppressed, would deprive the defendant of a
fair trial).
22. ‘‘When the ‘reliability of a given witness may well be determinative

of guilt or innocence,’ nondisclosure of evidence affecting credibility falls
within this general rule.’’ Giglio v. United States, 405 U.S. 150, 154 (1972)
(citations omitted).
23. Model Rules of Prof’l Conduct R. 3.8 cmt., www.abanet.org.
24. The current section f is a consolidation of sections e and g of the
previous rule.
25. The original comment noted that rule 3.3(d) applied to grand jury
proceedings. According to 3.3(d): ‘‘In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to the lawyer that will enable
the tribunal to make an informed decision, whether or not the facts are
adverse.’’ Model Rules of Prof’l Conduct R. 3.3(d), www.abanet.org.
26. See United States v. Williams, 504 U.S. 36 (1992) (holding that the
government is not constitutionally required to disclose exculpatory infor-
mation to grand juries).
27. See American Bar Association, Prosecution Function, Standard 3-3.6(b),
www.abanet.org.
28. Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. Ill. L. Rev.
1573, 1582 (2003).
29. Id.
30. Id. at n. 49.
31. Id.
32. Id. at 1583.
33. Id. at 1584.
34. Id. at n. 54.
35. Id. at 1585.
36. See discussion in infra chapter 9.
37. 28 C.F.R. x 77.
38. See Rory K. Little, Who Should Regulate the Ethics of Federal Prosecutors?
65 Fordham L. Rev. 355 (1996) for a discussion of the cases that led to the
promulgation of the Thornburgh Memo and the subsequent federal regula-
tions exempting prosecutors from the ‘‘no-contact’’ rule.
39. Richard L. Thornburgh, Memorandum to All Justice Department
Litigators ( June 8, 1989), reprinted in In re Doe, 801 F. Supp. 478, 489 (D.N.M.
1992).
40. See e.g., In re Doe, 801 F. Supp. 478, 480 (D.N.M. 1992).
41. See e.g., Kolibash v. Committee on Legal Ethics, 872 F.2d 571, 575 (4th
Cir. 1989).
42. 28 U.S.C. x 530B(a)–(b) (2004).
43. 28 U.S.C. x 530B(a) (2004).
44. Under U.S. Const. art. VI, cl. 2 (the supremacy clause), federal laws
prevail when state and federal laws conflict. See Edgar v. Mite Corp. 457 U.S.
624, 631 (1982) (holding that ‘‘a state statute is void to the extent that it
actually conflicts with a valid federal statute’’ and that ‘‘a conflict will be found
where compliance with both federal and state regulations is a physical
impossibility’’).
45. See Fred C. Zacharias & Bruce A. Green, The Uniqueness of Federal
Prosecutors, 88 Geo. L. J. 207 (2000) for a thorough discussion of the CPA and
its potential effects.
46. www.usdoj.gov/opr/
47. See Zacharias & Green, supra note 45, for a discussion of these dif-
ferences.
48. State attorneys general do not typically supervise the county and local
prosecutors of their states. In the majority of states, local prosecutors prosecute
cases within the jurisdiction of the county, independent of the state attorney
general. See, e.g., Iowa Code Ann. x 331.751 (West 1994); Minn. Stat.
Ann. x 388.01 (West Supp.1995). In other states, local prosecutors prosecute
crimes within the jurisdiction of a city. See e.g., Md. Ann. Code art. 10 x 34
(1957).
49. See Zacharias & Green, supra note 45 at 238 (suggesting that federal
prosecutors may take their duty to ‘‘do justice’’ more seriously than state
prosecutors, but recognizing that this generalization doesn’t apply in all cases).
50. See infra chapter 7 (discussing case in which I filed a motion to dismiss
an indictment for prosecutorial vindictiveness).
51. Fiscal Year 2003 Annual Report, U.S. Department of Justice, Office
of Professional Responsibility www.usdoj.gov/opr/annualreport2003.htm.
The OPR also opens an investigation in all cases in which judges ‘‘seriously
criticize’’ a federal prosecutor, even if there is not a judicial finding of
misconduct. Telephone interview with H. Marshall Jarrett, chief counsel and
director of the OPR, July 14, 2006.
52. Interview with H. Marshall Jarrett, supra note 51.
53. Fiscal Year 2203 Annual Report, supra note 51, www.usdoj.gov/
opr/annualreport2003.htm.
54. Id.
55. The OPR may continue an investigation after an attorney resigns.
The deputy attorney general makes this decision on the basis of factors such as
the seriousness of the allegation and how long the investigation has been
pending. Telephone Interview with H. Marshall Jarrett, July 17, 2006.
56. The OPR will release some private information if the local bar of-
fice signs a confidentiality agreement. Offices that are required to report cer-
tain types of information to the public may not be permitted to sign these
agreements.
57. In a case involving former AUSA Paul Howes (see infra chapter 7 for
discussion of Howes’s misconduct), Judge Collen Kollar-Kotelly of the U.S.
District Court for the District of Columbia ordered OPR to provide infor-
mation it had redacted from its report. Telephone interview with Sandra
Levick, PDS Appellate Training Director, July 17, 2006.
58. Id.
59. Green, supra note 28, at 1604.
60. Id.
9. Prosecutorial Accountability
1. ‘‘[T]he colonists transmuted the British system of mixed government

based on social classes to a government in which three branches, the legisla-
tive, executive, and judicial, would check each other, regardless of the social
class from which the officials were drawn.’’ Abner S. Greene, Checks and
Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123, 139–40
(1994) (discussing the framers’ overwhelming concern with either branch of
government attaining power without sufficient checks).
2. The separation of powers is a means for ‘‘[a]mbition . . . to counteract
ambition.’’ The Federalist No. 51, at 356 (James Madison) (Howard M.
Jones ed., 1961).
3. See generally William B. Gwyn, The Indeterminacy of the Separation of
Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474, 484–94 (1989)
(discussing federal courts’ acceptance of criminal prosecution as part of the
executive branch, but arguing that the framers did not intend prosecution to
be an executive power); Rory K. Little, Who Should Regulate the Ethics of
Federal Prosecutors? 65 Fordham L. Rev. 355, 379 (1996) (‘‘Thus Congress has
explicitly authorized the President to appoint, by and with the Senate’s advice
and consent, ‘an Attorney General of the United States . . . [as] the head of the
Department of Justice.’ The department of Justice was established by Con-
gress in 1870 as ‘an executive department of the United States.’’) (citing 28
U.S.C. xx 501, 503 (1994)).
4. ‘‘Prosecution is not among the list of enumerated executive powers.’’
Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94
Colum. L. Rev. 1, 70 (1994) (discussing the framers’ perception of the ex-
ecutive branch and arguing that they did not support a unitary, hierarchical
executive).
5. Id. at 94.
6. The Federalist No. 74 (Alexander Hamilton). But see Steven G.
Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive,
Plural Judiciary, 105 Harv. L. Rev. 1153, 1166 (1992) (describing a theory of
the unitary executive that allows the chief executive to maintain control
through the power to veto the discretionary decisions of his subordinates).
The framers’ support for a strong unitary executive must be viewed in light of
the limited powers they gave to the executive. Greene, supra note 1, at 125
(discussing the framers’ overwhelming concern with either branch of gov-
ernment attaining power without sufficient checks). Those limited powers are
worlds apart from the modern prosecutor’s broad powers and exercise of vast
prosecutorial discretion unchecked by either the courts or the legislature.
7. See Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 Harv.
J. L. & Pub. Pol’y 357 (1986) (describing police procedure in England);
Harold J. Krent, Executive Control over Criminal Law Enforcement: Some Lessons
from History, 38 Am. U. L. Rev. 275, 280–81, 310 (1989) (also describing
police procedure in England).
8. See John S. Baker, State Police Powers and the Federalization of Local
Crime, 72 Temp. L. Rev. 673 (1999) (discussing how the founders would have
been surprised to learn of the extensive and complex role the federal gov-
ernment has undertaken in the area of criminal law).
9. But see Krent, supra note 7 at 3117 (citing L. B. Schwarz, Federal
Criminal Jurisdiction and Prosecutorial Discretion, 13 Law & Contemp. Probs.
64, 64–66 (1948), and arguing that the expansion of federal criminal laws calls
for greater exercise of prosecutorial discretion).
10. See infra chapter 1 for a detailed discussion of the history of the
American prosecutor. The framers clearly opposed unrestrained executive
power, associating it with the tyrannical power of the king. See Lessig &
Sunstein, supra note 4, at 13 (citing Gordon S. Wood, The Creation of the
American Republic, 1776–87, at 521 (1969) (discussing the hierarchy of the
federal government)).
11. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat.
2017–2034 (codified at 28 U.S.C. x 991 (1994)), established the federal
sentencing guidelines. These guidelines eliminated judicial discretion at the
sentencing stage, effectively causing the prosecutor’s charging and plea bar-
gaining decisions to be the determinants of the outcome in many criminal
cases. Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion,
67 Fordham L. Rev. 13, 23–24 (1998) (discussing prosecutors’ vast discretion
and power); see also Cynthia Kwei Yung Lee, Prosecutorial Discretion, Substantial
Assistance, and the Federal Sentencing Guidelines, 42 UCLA L. Rev. 105, 149
(1994) (discussing the immense discretion of prosecutors in determining
whether a defendant will be sentenced to a mandatory minimum sentence
under the guidelines). But see the discussion of United States v. Booker, 543 U.S.
220 (2005), infra chapter 6.
12. But see discussion of the Vera Institute’s Prosecution and Racial
Justice Project, infra chapter 10.
13. In Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming, the
governor appoints the attorney general. The legislature selects the attorney
general in Maine, and the state supreme court selects the attorney general in
Tennessee. See Bill Isaeff, Qualifications, Selection, and Term, in State At-
torneys General: Powers and Responsibilities 15 (Lynne M. Ross ed.,
1990). The role of state attorneys general is determined by state constitutions,
statutes, and case law. The state attorney general represents the state in civil
and criminal matters and most focus on consumer protection, antitrust, child
support enforcement, and related matters. State attorneys general also provide
legal advice to governors and state agencies and some supervise local prose-
cutors. See Scott M. Matheson, Jr., Constitutional Status and Role of the State
Attorney General, 6 U. Fla. J. L. & Pub. Pol’y 1, 3 (1993).
14. Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. Crim. L. &
Criminology 717, 734 (1996).
15. Recent examples of district attorney and attorney general races fea-
turing ‘‘tough on crime’’ campaign themes with little detail on office policies
include Suffolk County, New York. See Rick Brand, Democrats Bank on Anti-
Catterson Theme, Newsday (Suffolk ed.), June 5, 1997, at A34; Jefferson
Parish, La.: Drew Broach, Jeff DA Candidates Spent Big, Owe Big, Times-
Picayune, Jan. 16, 1997, at B1; Buffalo, N.Y.: Robert J. McCarthy, In
Presidential Year, Two House Races Hold Local Interest, Buffalo News, Oct. 30,
1996, at 1F; Pennsylvania: Peter J. Shelly, Fisher Exaggerates His Experience,
Kohn Claims, Pitt. Post-Gazette, Oct. 26, 1996, at C1; Albuquerque,
N.M.: Arley Sanchez, DA Faces Ex-cop in Election, Albuquerque J., Sept. 26,
1996, at 1; and Baton Rouge, La.: Angela Simoneaux, DA Candidates for
Crime Prevention, Baton Rouge Advocate, Aug. 30, 1996, at 1B. Daniel C.
Richman writes: ‘‘Many elections for chief prosecutor are not even contested.
Those that are may be fought on whether a specific type of crime should be
prosecuted, whether a murderer deserves execution, or on the loss of a high-
profile case, as well as on an office’s overall win-loss record. Individual ref-
erenda on the broad range of discretionary choices that every prosecutor
makes are unlikely, indeed utterly impossible’’; Old Chief v. United States:
Stipulating Away Prosecutorial Accountability?, 83 Va. L. Rev. 939, 963–64
(1997); see also Misner, id. at 772–73 (noting that barely 12 percent of pros-
ecutors’ offices have written guidelines, leaving the public with little basis for
judging prosecutors’ effectiveness).
16. See infra chapter 1 for a discussion of this model.
17. For example, one commentator noted: ‘‘The reality is that nearly
all . . . decisions to prosecute or not to prosecute . . . and nearly all his reasons
for decisions are carefully kept secret, so that review by the electorate is
nonexistent except for the occasional case that happens to be publicized. The
plain fact is that more than nine-tenths of local prosecutors’ decisions are
supervised or reviewed by no one.’’ See Kenneth Culp Davis, Discre-
tionary Justice: A Preliminary Inquiry 190, 207–8 (1969); see also Donald
G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial

Discretion, 1983 U. Ill. L. Rev. 37, 54 (discussing the public’s lack of access to
information about plea bargaining); Richman, supra note 15 at 963 (1997)
(‘‘[E]ven direct elections are not likely to prove an effective means of giving
prosecutors guidance as to a community’s enforcement priorities or of holding
them accountable for the discretionary decisions that they have already
made.’’).
18. See Joan E. Jacoby, The American Prosecutor: A Search of
Identity 22 (1980); Abraham S. Goldstein, Prosecution: History of the Public
Prosecutor, in 3 Encyclopedia of Crime and Justice 1287 (Sanford H. Kadish
ed., 1983).
19. 28 U.S.C. x 503 (1994).
20. Id. at x 541(a).
21. Id. at x 542(a).
22. See Bruce A. Green, Policing Federal Prosecutors: Do Too Many Regu-
lators Produce Too Little Enforcement?, 8 St. Thomas L. Rev. 69, 70 (1995)
(noting that ‘‘evidence of prosecutorial misconduct, particularly in federal
cases, may be difficult to obtain’’) (citing Joseph F. Lawless & Kenneth E.
North, Prosecutorial Misconduct, Trial, Oct. 1984, at 28). But see Bill Moushey,
Out of Control Legal Rules Have Changed Allowing Federal Agents, Prosecutors to
Bypass Basic Rights, Pitt. Post-Gazette, Nov. 22, 1998, at A1 (investigating
federal agents and prosecutors who fabricated evidence).
23. Morrison v. Olsen, 487 U.S. 654, 732 (1988).
24. U.S. presidents may not serve more than two terms. U.S. Const.
amend. XXII, x 1.
25. Because the District of Columbia is not a state, local and federal
crimes are prosecuted by the U.S. Attorney for the District of Columbia. D.C.
Code Ann. x 23-101 (1998).
26. Christopher Drew & Steve Daley, Washington Mayor Arrested in
Videotaped Cocaine Sting, L.A. Daily News, Jan. 19, 1990, at N1, 1990 WL
5589890.
27. Barry was charged with fourteen counts of drug possession, con-
spiracy, and lying about drug activity to a grand jury. After a two-month trial,
a federal jury convicted Barry of one count of cocaine possession, acquitted
him of another count of possession, and deadlocked on the remaining twelve
drug and perjury counts. Mike Folks & Matt Neufeld, Mistrial: Jurors Falter on
Twelve of Fourteen Counts, Wash. Times, Aug. 11, 1990, at A1, LEXIS News
Library.
28. See, e.g., Barton Gellman, For the U.S. Attorney, Life Goes On; Ste-
phens Finds Himself Locally Loathed, Federally Respected, Wash. Post, Aug. 14,
1990, at A7; Jill Nelson, Backlash over Barry Case; Many Blacks Wrestling with
Ambivalence, Wash. Post, June 9, 1990, at A1; Tracy Thompson & Saundra
Torry, Barry Arrest Tosses Stephens into the Perils of Politics; Public Interest, Need to
Protect Case Clash, Wash. Post, Jan. 26, 1990, at A1.
29. After he completed his prison term, Barry was elected to the city
council in Washington, D.C., in 1992, elected mayor for a second term in
1994, and reelected to the city council in 2004. See www.dccouncil
.washington.dc.us/BARRY/about/default.htm.
30. D.C. Code Ann. x 23-101 (1998). The District of Columbia is
unique in its status as a city that is not part of any state government and has no
local or state prosecutor. Thus, the U.S. attorney for the District of Columbia
prosecutes local and federal crimes. Had the case been prosecuted by a locally
elected prosecutor, there might have been more responsiveness to the public
disapproval.
31. Morrison v. Olsen, 487 U.S. 654, 729 (1988) (Scalia, J., dissenting).
32. See Tom Raum, Bush, ‘‘Bill, You’re Not Going to Win This,’’ He
Declares, Ariz. Republic, Nov. 3, 1992, at A1 (describing Bush’s major
campaign themes); David Shribman & Jill Abramson, Winds of Change: Clinton
Wins Handily as Democrats Reclaim Broad-Based Coalition, Wall St. J., Nov. 4,
1992, at A1 (noting former president George H. W. Bush’s campaign themes
of experience and honesty).
33. One can only speculate about whether the outcome would have been
different with an unpopular prosecution in a jurisdiction other than the
District of Columbia—where the residents always vote for the Democratic
presidential candidate and have no voting representation in the U.S. Con-
gress. See generally Jamin Raskin, Is This America? The District of Columbia and
the Right to Vote, 34 Harv. C.R.-C.L. L. Rev. 39 (1999) (arguing that District
of Columbia residents have a constitutional right to voting representation in
Congress).
34. See United States Elections Project, ‘‘Voter Turnout,’’ http://elections
.gmu.edu, for 2004 election turnout information. See also Fair Vote, Voting
and Democracy Research Center, ‘‘Voter Turnout, www.fairvote.org, for
election turnout information generally. In the 2004 general presidential elec-
tion, the national average election turnout rate for the voting age population
was 60.7 percent (projected). In the 2002 general presidential election, the
national average turnout rate was 40 percent. In 2002, the voter turnout in
West Virginia was 32 percent, whereas the turnout in South Dakota was 62
percent. The rate varied by state.
35. See Roscoe C. Howard, Jr., Wearing a Bull’s Eye: Observations on the
Differences Between Prosecuting for a United States Attorney’s Office and an Office of
Independent Counsel, 29 Stetson L. Rev. 95, 141 (1999) (asserting that
U.S. attorneys have significant discretion and often spend a disproportionate
amount of time and money on cases involving celebrities or notorious con-
duct); Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo.
NOTES TO PAGE 170 235
L.J. 2133, 2142 n. 27 (1998) (describing high-profile public corruption cases

to which the Justice Department has devoted extraordinary resources).
36. Not everyone thought the charges were trivial. Tracy Thompson &
Michael York, U.S. Won’t Seek Second Barry Trial, Stephens Says He’ll Push for
Tougher Sentence, Wash. Post, Sept. 18, 1990, at A1. United States attorney
Stephens noted that the jury ‘‘in rendering a guilty verdict on one count, has
held Mr. Barry responsible for his criminal conduct. He must now accept
responsibility for that criminal conduct.’’ Gellman, supra note 28, at A7. Ste-
phens went on to say that ‘‘Mr. Barry was held accountable for abusing the
public trust as a public official.’’ Id. See also Linda P. Campbell, Marion Barry Gets
Six Months on Drug Conviction, Chi. Trib., Oct. 27, 1990, at 1. Judge Penfield
Jackson, in handing down Barry’s sentence, noted that ‘‘his breach of public trust
alone warrants an enhanced sentence’’ and that Barry’s mayoral position was ‘‘of
greatest significance’’ when he determined the severity of his sentence. Id.
37. Then–attorney general Richard Thornburgh refused to provide an
estimated cost of the investigation. ‘‘I don’t think we put a pricetag on jus-
tice,’’ he said. Michael Isikoff, Thornburgh Denies Justice Department Singles Out
Black Officials for Prosecution, Wash. Post, July 12, 1990, at A16. Other law
enforcement officials estimate the cost at between $2 million and $3 million.
Id. Barry claimed the cost was $50 million. Steve Twomey, Barry’s $50 Million
Question; Mayor’s Claim Would Make His Case the Costliest in Recent History,
Wash. Post, Aug. 7, 1990, at B1.
38. Barry was convicted of one misdemeanor charge of cocaine posses-
sion, found not guilty of a second charge of cocaine possession, and acquitted
of all other charges, including the cocaine offense that was recorded on
videotape. Mike Folks & Matt Neufeld, Mistrial: Jurors Falter on Twelve of
Fourteen Counts, Wash. Times, Aug. 11, 1990, at A1.
39. The budgets for each U.S. attorney’s office are allocated by the
Department of Justice, whose budget is approved by the U.S. Congress. 28
U.S.C. x 548 (1994). Citizens of a particular U.S. attorney’s district would
ordinarily express disapproval of budgetary expenditures to their senators or
other congressional representatives. Since citizens of the District of Columbia
have no voting representation in Congress, one might speculate that the result
may have been different in another jurisdiction. However, one is hard pressed
to discover examples of citizens expressing disapproval of the budgetary al-
locations in a particular U.S. attorney’s office.
40. See Kavanaugh, supra note 35, at 2142 n. 27 (noting examples of
costly cases involving well-known figures).
41. See David L. Cook et al., Criminal Caseload in U.S. District Courts:
More Than Meets the Eye, 44 Am. U. L. Rev. 1579, 1594–95 (1995) (asserting
that increasing federal budgets allow agencies to conduct more investigations
and initiate an increasing number of prosecutions).
42. The public may or may not approve of such expenditures. The O. J.
Simpson prosecution is one example of a local prosecutor devoting immense
resources to one case. See Pricey Proceedings: Tallying the Trial Tab, 81 A.B.A. J.
34 (1995) (providing a breakdown of the costs in prosecuting the O. J.
Simpson criminal trial, according to the Associated Press Human Resources
Group, as the following: prosecutorial and investigative expense, $3.6 million;
cost of food, security, and shelter for jury, $3 million; sheriff ’s department
expenses, $2.7 million; superior and municipal court costs, $1.9 million; au-
topsies, $100,000). The public was undoubtedly aware of this fact due to the
extraordinary national and international media coverage. It would be difficult
to measure the public reaction to the prosecutor’s allocation of resources to
this case in light of the wide divergence of views about the case. See generally
Katheryn K. Russell, The Color of Crime 47–68 (1998).
43. With the approval of President Clinton, Janet Reno removed all
ninety-three U.S. attorneys at the beginning of her tenure as attorney general.
See Jerry Seper, Reno Demands Resignations of U.S. Attorneys, Wash. Times,
Mar. 24, 1993, at A8 (noting that most of the nation’s U.S. attorneys had been
appointed by Presidents Reagan and Bush and that the call for their resig-
nations was standard partisan politics); Michael York & Donald P. Baker,
Washington Area to Lose Two High Profile Prosecutors; All U.S. Attorneys Told to
Tender Resignations, Wash. Post, Mar. 24, 1993, at A1 (depicting the removal
of the U.S. attorneys as routine for a new administration, while others claimed
it could create turmoil within the U.S. attorneys’ offices).
44. See, e.g., Cal. Const. art. V, x 11 (term of four years); Mo. Const.
art. V, x 7 (four years); Va. Const. art. V, x 15 (four years).
45. See, e.g., Gerald G. Ashdown, Federalism, Federalization, and the Politics
of Crime, 98 W. Va. L. Rev. 789, 789–90 (1996) (discussing the history of
criminal law and its federalization); Sara Sun Beale, Too Many and Yet Too Few:
New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46
Hastings L. J. 979, 981 n. 11 (1995) (acknowledging that only a small
number of federal offenses existed prior to the Civil War); Kathleen F.
Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46
Hastings L. J. 1135, 1138 (1995) (discussing the history of criminal law); see
also Sara Sun Beale, Reporter’s Draft for the Working Group on Principles to Use
When Considering the Federalization of Criminal Law, 46 Hastings L. J. 1277,
1278–82 (1995) (tracing the historical evolution and expansion of the federal
criminal jurisdiction).
46. See generally infra chapter 7.
47. According to the Gallup Poll, 51 percent of Americans get their daily
news from local television, 36 percent from national broadcast television, 39
percent from cable news, 27 percent from public television news, 17 percent
from National Public Radio, 21 percent from radio talk shows, and 20 percent
from the internet; 44 percent get their daily news from local newspapers and 7
percent from national newspapers. See the Gallup Poll, December 2004.
Compare with findings from the Pew Research Center that put American’s
daily newspaper readership at 42 percent and daily television news viewership
at 40 percent; 29 percent regularly get news from online sources. See Pew
Research Center, Online News Audience More Diverse: News Audiences In-
creasingly Polarized, June 8, 2004.
48. See id.
49. Findings of Neilson Media Research, as reported in Tube Time Hits
Record High, Variety.com, Sept. 29, 2005.
50. See Pew Research Center, supra note 47.
51. Id.
52. ‘‘The [Simpson] trial began on January 23rd 1995 and was televised
throughout. More than 90 percent of the American television viewing au-
dience claimed to have watched it and 142 million people listened on radio or
watched television as the verdict was delivered. More than 2,000 reporters
covered the trial and more than 80 books have been written about it.’’ See
BBC News, Infamous Crimes, at www.bbc.co.uk/crime/caseclosed/simpsoncase
.shtml. In June 2005, there were 6,248 combined news segments about
the Michael Jackson molestation trial on ABC, CBS, NBC, FOX, CNN, and
MSNBC, compared to 126 segments about the genocide in Sudan. See Amer-
ican Access Project Fund, www.beawitness.org.
53. See The State of the News Media 2004, a report of the Project for
Excellence in Journalism, March 15, 2004.
54. The time local television news devoted to crime-related stories in-
creased from 22 percent to 27 percent between 1998 and 2002. See Local TV
News Project—1998 and Local TV News Project—2002, Project for Excellence
in Journalism. During the same 1998–2002 time frame, reports of crimes
nationwide decreased by nearly 4.8 percent. (In 1998, 12,475,634 crimes
reported, compared to 11,877,218 in 2002.) See FBI Uniform Crime Re-
ports, 1998 and 2002.
55. For the week of November 7, 2005, six of the top ten television
shows watched were crime-related dramas, as follows: ranked first, CSI;
fourth, Without a Trace; tied for sixth, CSI: Miami and CSI: NY; ninth, Cold
Case; and tenth, NSCI. See Nielsen Media Research.
56. See Law and Order: About the Show, www.nbc.com.
57. See Law and Order, in Wikipedia online encyclopedia, http://en
.wikipedia.org.
58. See Naomi Mezey and Mark C. Niles, Screening the Law: Ideology and
Law in American Popular Culture, 28 Colum. J. L. & Arts 91, 124 (2005)
(demonstrating how Law and Order’s formula utilizes prosecutorial characters
whose sense of justice regularly overcomes their personal and professional
flaws as they prosecute defendants whose culpability is never in doubt, re-

gardless of whether they are ultimately convicted by the court. The formula
placates the public by reinforcing a notion that justice is always clear-cut and
the prosecutors will be the public’s champion even when the courts will not).
59. Films such as JKF, A Few Good Men, The Untouchables, and Helter
Skelter promote this view of the prosecutor.
60. In the movie Crash, a prosecutor, played by Brendan Fraser, is por-
trayed as someone primarily driven by political ambition. In one scene, he
appears to prosecute someone for a murder on the basis of weak evidence in
order to further his career.
61. See Dawn Keetley, Law and Order, in Prime Time Law: Fictional
Television as Legal Narrative 42–44 (R. Jarvis & P.R. Joseph eds., 1998).
62. Quotation from ‘‘Misconception,’’ Law and Order, episode 28,
originally aired Tuesday, October 29, 1991, on NBC, as quoted, id. at 43.
63. See Keetley, supra note 61, at 42–43.
64. See Marc Mauer, Race to Incarcerate, 19–22 (2d. ed. 2006)
(describing the United States as the second leading country in the world in its
rate of incarceration).
10. Prospects for Reform
1. The CPA, 28. U.S.C. x 530B (Supp. IV 1998), discussed in infra

chapters 6 and 8, was widely opposed by federal prosecutors. See Allen Van
Fleet, How Government Lawyers Tilt The Ethical Playing Field, 13 Fall Anti-
trust 13, 16 (1998) (discussing the opposition from the Justice Department
and federal prosecutors to the CPA).
2. See discussion, infra chapter 7.
3. Id.
4. Id.
5. Id.
6. See infra chapter 8.
7. See Devin J. Doolan, Jr., Community Prosecution: A Revolution in Crime
Fighting, 51 Cath. U. L. Rev. 547, 551 (2002) (stating that prosecutor offices
throughout the United States are rapidly embracing the community prose-
cution philosophy); Angela J. Davis, The American Prosecutor: Independence,
Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 462 (2001) (discussing
the recent use of community prosecution in order to involve prosecutors
more fully within the communities they serve).
8. H.R. 3396, 105th Cong. (1998); Davis, supra note 7.
9. H.R. 3396, 105th Cong. (1998) x 201(a). The offenses include: (1) in
the absence of probable cause seek the indictment of any person; (2) fail
promptly to reveal information that would exonerate a person under in-

dictment; (3) intentionally mislead the court as to the guilt of any person; (4)
intentionally or knowingly misstate evidence; (5) intentionally or knowingly
alter evidence; (6) attempt to influence or color a witness’ testimony; (7) act to
frustrate or impede a defendant’s right to discovery; (8) offer or provide any
sexual activities to any government witness or potential witness; (9) leak or
otherwise improperly disseminate information to any person during an in-
vestigation; (10) engage in conduct that discredits the department. Id.
10. Id. x 201(b).
11. See, e.g., David Cole, No Equal Justice (1999); Marc Mauer, Race
to Incarcerate (2d ed. 2006); Developments in the Law —Race and the Criminal
Process, 101 Harv. L. Rev. 1475 (1988) (examining the problem of race
discrimination within the criminal justice system); Rebecca Marcus, Racism in
Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact
upon Racial Minorities, 22 Hastings Const. L. Q. 219 (1994) (discussing the
disadvantages that racial minorities face in the criminal justice system due to
inadequate resources of public defender services); Mark D. Rosenbaum, No
Equal Justice: Race and Class in the Criminal Justice System, 98 Mich. L. Rev.
1941 (2000) (discussing the ‘‘massive and flagrant abuses’’ of law enforcement
officers and their disparate effect on racial minorities); Milton Hume & Lance
Cassak, Good Cop, Bad Cop, Racial Profiling and Competing Views of
Justice in America (2003) (discussing the impact of the practice of profiling
on racial and ethnic minorities); Racial Issues in Criminal Justice: The
Case of African Americans (Marvin D. Free ed., 2003) (discussing the
enormous racial disparities in the criminal justice system).
12. Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of
Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev.
433, 438–39 (1995) (stating that federal and state courts have either failed to
provide adequate remedies for racial discrimination or set legal standards of
proof that are impossible to meet); Reenah L. Kim, Legitimizing Community
Consent to Local Policing: The Need for Democratically Negotiated Community
Representation on Civilian Advisory Counsels, 36 Harv. C.R.-C.L. L. Rev. 461,
462 (2001) (stating that judicial intervention of racial discrimination in law
enforcement has not adequately addressed the ‘‘troubling consequences of
police discretion’’).
13. See U.S. v. Armstrong, 517 U.S. 456, 462 (1996) (holding that a
defendant must meet a high evidentiary burden suggesting a constitutional
violation based on selective prosecution in order for a judge to permit dis-
covery on that issue); McCleskey v. Kemp, 481 U.S. 279, 297 (1987) (holding
that statistical evidence suggesting that the death penalty disproportionately
affected African Americans is not sufficient to demonstrate a discriminatory
purpose by the prosecuting attorney).
14. Armstrong, 517 U.S. at 462 (requiring a high evidentiary burden of

proof for selective prosecution claims).
15. See Berger v. United States, 295 U.S. 78, 88 (1935); Model Code of
Prof’l Responsibility EC 7-13 (‘‘The responsibility of a public prosecutor
differs from that of the usual advocate; his duty is to seek justice, not merely to
convict.’’); Model Rules of Prof’l Conduct R. 3.8 cmt. (1983) (de-
scribing a prosecutor’s responsibilities ‘‘to see that [a] defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evi-
dence’’); Standards Relating to the Admin. of Criminal Justice Stan-
dard 3-1.2(c) (1992) (‘‘The duty of the prosecutor is to seek justice, not
merely to convict.’’).
16. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice:
Can Prosecutors Do Justice?, 44 Vand. L. Rev. 45, 57 (1991).
17. See Model Code of Prof’l Responsibility EC 8-1; see also. EC 8-9
(‘‘The advancement of our legal system is of vital importance in maintaining
the rule of law and in facilitating orderly changes; therefore, lawyers should
encourage, and should aid in making, needed changes and improvements.’’);
Model Rules of Prof’l Conduct pmbl. (‘‘A lawyer should be mindful of
deficiencies in the administration of justice’’); Standards Relating to the
Admin. of Criminal Justice Standard 3-1.2(d) (‘‘It is an important function of
the prosecutor to seek to reform and improve the administration of criminal
justice. When inadequacies or injustices in the substantive or procedural law
come to the prosecutor’s attention, he or she should stimulate efforts for re-
medial action.’’).
18. For purposes of the report, ‘‘similarly situated’’ defendants would
have committed the same criminal act and have similar criminal histories.
‘‘Similarly situated’’ victims would have the same level of interest in prose-
cution and similar criminal histories. Other characteristics of either the de-
fendant or the victim (wealth, education, jury appeal, etc.) should not be
relevant to the prosecutor’s calculus, as they would involve discriminatory
treatment based on subjective, inappropriate criteria.
19. The prosecutor should not use conviction and sentencing rates as
evidence of criminality, as the Supreme Court did in Armstrong. As Justice
Stevens noted in his dissent in Armstrong, conviction and sentencing rates only
reflect the number of individuals prosecuted and sentenced for certain crimes,
not necessarily the number of individuals who committed these crimes.
Armstrong, 517 U.S. at 482 (Stevens, J., dissenting).
20. See detailed discussion of the Baldus study, infra chapter 5.
21. 470 U.S. 598, 607 (1985).
22. See Charles W. Thomas & W. Anthony Fitch, Prosecutorial Decision
Making, 13 Am. Crim. L. Rev. 507, 523–24 (1976) (advocating that prose-
cutors use forms and checklists to record the basis of their charging decisions).
NOTES TO PAGE 192 241
23. The Vera Institute of Justice works closely with leaders in govern-
ment and civil society to improve the services people rely on for safety and
justice. Vera develops innovative, affordable programs that often grow into
self-sustaining organizations, studies social problems and current responses,
and provides practical advice and assistance to government officials in New
York and around the world. www.vera.org.
24. Wayne McKenzie, Briefing Memo for Advisory Board Meeting in Char-
lotte, 1 (December 1, 2005).
25. Paul Morrison participated in the project until he was elected At-
torney General in 2006. The Project is exploring alternatives to replace him.
Michael McCann decided not to run for re-election in 2006 but will continue
to work with the project along with his successor John Chisholm.
INDEX
5K1.1 Motion, 106–08, 112 Cannons of Professional Ethics, 144

18 U.S.C. x 201(c)(2), 54 Criminal Justice Section, 15,
18 U.S.C. x 371, 214 182, 212
18 U.S.C. x 1001, 214 Prosecution Function Standards, 30,
Amended by PL 109-248, 120 33, 185, 204, 209
Stat. 587, 214 Std. 3-3.6(b), 228
18 U.S.C. x 3141-3150, 216 American Civil Liberties Union, 219
18 U.S.C. x 3591-98, 211 Anderson, Philip S., 144
21 U.S.C. x 841(b)(1)(A)(iii), 215 Anti-Drug Abuse Act of 1986, 99–100
28 C.F.R. x 77, 219, 228 Apprendi v. New Jersey, 225
28 U.S.C. x 516, 102 Armey, Dick, 116
28 U.S.C. x 530B(a), (b), 228 Armstrong, Ken, 131, 135, 138, 223,
28 U.S.C. x 501, 230 225, 226
28 U.S.C. x 503, 230, 233 Ashcroft, John, 113, 115–20, 220
28 U.S.C. x 530B, 238 Atkins v. Virginia, 210, 225
28 U.S.C. x 541(a), 233 Atwater v. City of Lago Vista, 195
28 U.S.C. x 542(a), 233
28 U.S.C. x 547, 102
28 U.S.C. x 548, 235 Ba’ath Party, 219
28 U.S.C. x 991, 231 Baldus Study, 82–84, 90, 188, 240
Banks, Delma, 3–5, 132–35
Banks v. Dretke, 223, 225
Afghanistan, 219 Barry, Marion, 168–70, 233–35
Al Qaeda, 116–18, 219 Bentham, Jeremy, 9
Am. Jur. 2d Constitutional Berger v. United States, 239
Law x 236, 221 Bias, Len, 99
American Bar Association, 134, Biskupic, Joan, 216, 217
143–45, 153–54, 161, 180–83, Blackmun, Harry, Justice, 77–78,
185, 228 83–84, 91
243
244 INDEX
Bloom v. Illinois, 206 Costello v. United States, 202

Bordenkircher v. Hayes, 103 County of Riverside v. McLaughlin, 201
Brady v. Maryland, 126, 130–34, Cruz, Rolando, 137, 139
136, 141, 149, 195, 208,
222–24, 227
Branzburg v. Hayes, 201 Darden, George ‘‘Buddy,’’ 136
Brennan, William, Justice, 83 Davis, Angela J., 125, 222, 226,
Breyer, Charles, Judge, 97 231, 238
Bright, Stephen B., 84–85, 239 Davis, Trevor, 27–30
Brooks, Tyron, Representative, 32 DC Code Ann. x 23-101, 48, 233–34
Bryant, Rick, 69–70 DC Code Ann. x 40-302 (1967), 195
Buckley, Stephen, 137 D.C. Sup. Ct. R. of Crim. Proc.
Bush, George H. W., 100, 169, 48(c), 202
234, 236 Death Penalty Information Center,
Bush, George W., 115 82, 84–85, 211, 213, 220
Delorean, John, 170
Dept. of Justice, 4, 15–16, 55, 80
Calabresi, Guido, Judge, 110, 224 organizational chart, 94–95, 214
California Compassionate Use Dixon, Marcus, 32–33
Act, 97 Dixon v. State, 203
California Const. art. V, x 11, 236
California Health & Safety Code
x 11351-11351.5, 215 Edgar v. Mite Corp., 228
California Penal Code x 126, 225 Ehrilich, Robert, 220
California Penal Code x 127, 225 Ethics 2000 Commission, 144–45,
Callins v. Collins, 210 151–52, 227
Canciamilla, Joe, 88
Center for Public Integrity, 126, 128,
130, 135, 182, 222 Farr, Robert, 132–33
Chapman v. California, 222 FBI Uniform Crime Reports, 237
Chisholm, John, 241 Fed. Cir. R. Rule 35, 207
Citizens Protection Act (CPA), 114, Fed. R. Evidence 802, 202
129, 155–57, 185 Federal Sentencing Act, 111–12
Civil War, 213 Federal Sentencing Guidelines, 56,
Clinton, William, 236 103–13, 118, 216, 218–19, 231
Coleman, Tom, 40 Feeney Amendment, 109–11, 217
Controlled Substance Act Feeney, Tom, 217
21 U.S.C. xx 841, 846, 856, 97 Ferrara, Virginia, 136
Cook, Charles, 132, 133 Flaherty, Mary Pat, 216–17
Cooper, N. Lee, 144 Ford v. Wainwright, 224
INDEX 245
Forney, Mark, 108, 113 Jackson, Penfield, Judge, 235

Fraser, Brendan, 238 Jahshan, Khalil E., 118
Furman v. Georgia, 210 Jarrett, H. Marshall, 229
Jefferson, Ray, 66–69
Johnson, Robert, 85–87, 89
Ganz, Ernest, 107, 108 Johnson, Sterling Jr., Judge, 110
Gibbons, John, Judge, 134 Joint Conference Report on
Giglio v. United States, 228 Professional Responsibility, 145
Gilchrist, Peter, 192 Judicial Conference of the U.S.,
Gingrich, Newt, 115, 219 110, 214
Glendening, Parris, 220 Judiciary Act of 1789, 11, 199
Gordon, Bob, 19–20, 22
Grahofsky, Julie, 227
Green, Bruce A., 161, 228–30, 233 Kennedy, Anthony, Justice, 110
Gregg v. Georgia, 224 Kent, Samuel, Judge, 104
Guidelines Manual, 217 Kilander, Robert, 138
Guillory, Lorilei, 69–70 King, Patrick, 138
Klepper, Andrew, 3–5, 48–50, 52
Knight, Thomas, 138
Hamilton, Alexander, 230 Kolibash v. Committee on Legal
Harris, Kamala, 87–89 Ethics, 228
Hearne, Texas, 50–52 Kollar-Kotelly, Colleen, Judge, 229
Heinke, Rex, 153 Kuckes, Niki, 153
Hernandez, Alejandro, 137 Kyles v. Whitley, 227
Highsmith, Shelby, Judge, 108
Hobbs Act, 119–20
Howes, Paul, 138, 229 Langley, Ricky Joseph, 69–70
H.R. 3396, 105th Cong., 238 Lerach, Coughlin, Stoia, Geller,
Hurtado v. California, 201 Rudman & Robbins, 138
Hutchingson, Asa, Congressman, 216 Levick, Sandra, 226, 230
Lewis, Timothy, Judge, 134
Lockyer, Bill, 88, 97
Imbler v. Pachtman, 128, 222
In re Doe, 222, 228
Iowa Code Ann. x 331.751, 229 Madison, James, 230
Iraq, 219 Malvo, John Lee, 119
Mandatory Minimum Sentences,
56–58, 197
Jackson, Martin Jarvis, 104 Mapp v. Ohio, 205
Jackson, Michael, 172, 237 Martin, John Jr., Judge, 110
246 INDEX
Maryland Ann. Code art. 10 x 34, 229 Rule 3.3, 227–28

Maryland Code Ann., Criminal Law Rule 3.6, 227
x 2-203, 211 Rule 3.8, 145–53, 227–28, 240
Maynard v. Cartwright, 224 Rule 4.1, 227
McCann, Michael, 192, 241 Rule 4.2, 114, 152, 154–55
McCarthy, Carol Pearce, 138 Rule 7.2, 227
McCleskey v. Kemp, 83, 103, 188, 205, Rule 8.4, 151
216, 239 Morris, Tony, 72–74
McCloskey, Jay, 106 Morrison, Paul, 192, 241
McDade, Joseph, 156, 170 Morrison v. Olsen, 233–34
McEachern, Terry, 40–41, 205 Moushey, Bill, 131, 223, 233
McKenzie, Wayne, 192, 241 Muhhammad, John Allen, 119
McKnight, David, 19–22, 25, 35
McNabb v. United States, 128, 222
Media, influence of, 47–48, 75–76, Nagel, Ilene H., 109
120, 163, 171–74, 176, 179, National Collegiate Athletic
209, 236–37 Association (NCAA), 99
Michael, William, 107–08 National Commission on Law
Mich. Comp. Laws. Ann. Observance and Enforcement,
x 750.425, 225 11, 200
Mills, Steve, 225 National District Attorneys
Mincberg, Elliot, 116 Association, 148, 191, 193–94,
Miner, Robert, Judge, 110 209, 227
Minn. Stat. Ann. x 338.01, 229 Std. 43.3, 148, 227
Missouri Const. art. V, x 7, 236 Neilson Media Research, 237
Mistretta v. United States, 218 New York Civil Liberties Union, 86
Model Code of Prof ’l Responsibility, Nguyen, John, 19–20, 22
128, 144, 157, 160, 240 Nix v. Whiteside, 155
EC 7-13, 240 North Carolina v. Pearce, 203
EC 8-1, 240
EC 8-9, 240
Rule 7-104(A)(1), 154 O’Connor, Sandra A., 90–91
Model Rules of Prof ’l Conduct, Old Chief v. United States, 232
144–45, 147–49, 152–54, O’Malley, Robert, 153
183, 227 Operation Enduring Freedom, 219
Preamble, 240
Rule 1.5, 227
Rule 1.7, 227 Pataki, George, Governor, 85–86, 89
Rule 1.8, 227 Paternoster, Raymond, 90
Rule 1.17, 227 Peel, Sir Robert, 9
INDEX 247
Perjury, 53–55, 59, 133, 136–37, Ross, Marcia, 19–20

224–226, 233 Rostenkowski, Dan, 170
Pew Research Center, 237
Possley, Maurice, 131, 135, 138, 223,
225–26 Scalia, Antonin, Justice, 168
Powell, Lewis, Justice, 83 Schiff, Adam, 175
Project for Excellence in Journalism, Schiro v. Farley, 224
173, 237 Sentencing Reform Act of 1984, 100,
Prosecution and Racial Justice Project, 103, 105, 109, 231
192–94 Pub. L. No. 98-473, 98 Stat.
Prosecution of Offenses Act, 9 2017-2034, 231
Prosecution Review Boards, September 11, 2001, 115–17, 219
184–86, 189–91 Sessions, William, Judge, 134
PROTECT Act, 109, 217 Shestack, Jerome, 144
Pub. L. No. 108-21, 117 Stat. Shih Wei Su v. Filion, 224
650, 217 Simpson, O. J., 172, 236
Public Information Campaigns, 184 Simpson Trial, 237
Smart, Elizabeth, 75–76
Sniper Trials, 119
Quinn, Patrick, 138 Song, Young Jiun, 49
Southern Center for Human Rights, 84
Sperry v. Florida, 155
Racial Disparity Studies, 186–93 Sporkin, Stanley, Judge, 216
Racial Profiling, 38, 117–18, Standards Relating to the Admin.
196, 204 of Criminal Justice, 240
Ramos, Alberto, 224 Std. 3-1.2(c), 240
Ramsey, JonBenet, 75–76 Std. 3-1.2(d), 240
Reagan, Ronald, 100, 215, 236 Stephens, Jay, 168–69, 235
Rehnquist, William H., Chief Justice, Stewart, Erma Faye, 50–52
110, 217 Stinson v. United States, 218
Reno, Janet, 114, 154, 236 Stone, Ben, 175
Reno Rule, 154–55 Strickler v. Greene, 134–35, 224
Richman, Daniel C., 232, 233 Sullivan, Thomas, 134
Ring v. Arizona, 224–25 Symington, Fife, 170
Robinson, James, 71–75
Roper v. Simmons, 210, 225
Rose v. Clark, 222 Taliban, 219
Rosenbaum, James, Judge, Tevrizian, Dickran, Judge, 111
110, 217 Texas v. Brown, 201
Rosenthal, Ed, 97 Tex. Code Ann. x 38-1-402, 196
248 INDEX
Tex. Tran. Code Ann. x 545.413 United States v. Ferrara, 219

(1999), 195 United States v. Goodwin, 102
Thompson, Larry, 117–18 United States v. Hammad, 219
Thornburgh Memo, 114, 129, 152, United States v. Hasting, 128, 222
154–55, 219, 222, 228 United States v. Koon, 218
Thornburgh, Richard, 113–14, 152, United States v. Lopez, 219
154–55, 168–69, 220, 222, United States v. Mendoza, 218
228, 235 United States v. Myers, 218
Tibitz, Kathy, 32 United States v. Russell, 128, 222
Tulia, Texas, 40–41 United States v. Singleton, 54
United States v. Washington, 214
United States v. Williams, 201, 228
U.S. Constitution United States v. Wilson, 218
Amend. V, 25, 203, 205
Amend. XXII, x 1, 233
Art. II, x 3, 200 Vacco, Dennis C., Attorney
Art. VI, cl. 2, 228 General, 86
U.S. Patriot Act, 115–16, 219 Vera Institute of Justice, 192–94,
Pub. L. No. 107-56, 115 Stat. 231, 241
272, 219 Prosecution and Racial Justice
U.S.C. x 530(b)(a), 219 Project, 231
U.S.C. x 542, 214 Victims’ Rights Movement, 64–65
U.S.C. x 844(a), 215 Virginia Code Ann. x 18.2-424, 226
United States Attorneys’ Manual, Virginia Code Ann. x 18.2-436, 226
15–16, 80, 96–98, 100, 107, Virginia Const. art. V, x 15, 236
120, 158, 209, 211, 214–15 Voting and Democracy Research
United States Elections Project, 234 Center, 234
United States General Accounting
Office, 81, 116, 212–13, 219
United States Sentencing Wadas, Kenneth, 138
Commission, 103, 109, 208 War on Drugs, 99, 215
United States v. Agurs, 130, 223 Ware, Daniel, 20–22, 35
United States v. Armstrong, 100–03, Washington, Dwayne, 3–5
198, 205, 215–16, 222, 239–40 Wayte v. United States, 102, 190,
United States v. Bagley, 227 200, 240
United States v. Barkley, 218 Weeks v. United States, 205
United States v. Booker, 104–07, Whitehead, Richard, 132
111–13, 216, 218, 231 Wickersham Commission, 12
United States v. Chemical Foundation, Williams v. United States, 216
Inc., 103, 204 Woodson v. North Carolina, 211

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ARBITRARY JUSTICE

Oxford New York

Copyright Ó 2007 by Oxford University Press, Inc.

Published by Oxford University Press, Inc.

All rights reserved. No part of this publication may be reproduced,

Library of Congress Cataloging-in-Publication Data

Printed in the United States of America

I grew up in the segregated South and learned about injustice at a very

either read early drafts of chapters, participated in interviews, answered

sense of humor, advised and inspired me daily and helped me concep-

ONE Prosecutorial Discretion: Power and Privilege 3

TWO The Power to Charge 19

THREE Let’s Make a Deal: The Power of the Plea Bargain 43

FOUR Prosecutors and the Victims of Crime 61

FIVE Prosecutors and the Death Penalty 77

SIX Federal Prosecutors and the Power of the

SEVEN Prosecutorial Misconduct: The Abuse

of Power and Discretion 123

EIGHT Prosecutorial Ethics 143

NINE Prosecutorial Accountability 163

TEN Prospects for Reform 179

Delma Banks was convicted of capital murder in Texas and sentenced

accomplices—whose involvement in the crime was much less serious

to-do victims were frequently prosecuted more vigorously than cases

DISCRETION—A NECESSARY EVIL

arrests sometimes produces unjust, discriminatory results. When police

A BRIEF HISTORY OF THE AMERICAN

In the early Middle Ages, when no formal system of criminal justice

convicted, the court frequently ordered the suspect to pay restitution

of Columbia48 and four states—Delaware, New Jersey, Rhode Island,

The most well-known crime commission of this era was the

THE IMPORTANCE OF PROSECUTORIAL

Prosecutorial discretion is essential to the operation of our criminal

every prosecution comes the corresponding need for defense attor-

This broad discretion rests largely on the recognition that the

outside inquiry, and may undermine prosecutorial effective-

THE DILEMMA OF PROSECUTORIAL DISCRETION

All of the reasons in support of prosecutorial discretion explain why it is

to the attorney general of the United States. There is no legal re-

It is important that prosecutors make charging and plea bargaining

prosecutorial accountability have failed to prevent the unfair practices

The Power to Charge

The argument stemmed from Brown’s alleged threats against

as a young college student with a future, while simultaneously feeling

HOW THE CHARGING PROCESS WORKS

The charging decision is the most important prosecutorial power and

participation of the crime victim, the prosecutor may pursue the

THE GRAND JURY

indictment. The defendant is served with a copy of the indictment at a

designed to protect the defendant’s right to a speedy trial by preventing

Davis was adamant that he was innocent of the charges. He told me

the defense. My investigator never had the opportunity to commu-

evidence of a rape without her testimony. The prosecutor gave very

Prosecutors routinely engage in overcharging, a practice that involves

sentencing stage of the process,19 jurors are permitted to ﬁnd the

alleged victim is white. Members of the African American community

DISCRETION IN THE CHARGING PROCESS

We have seen how prosecutors single-handedly control the charging

the disparity in charging illustrated by the treatment of McKnight and