Questioning the autonomy of prosecutorial charging decisions: Recognizing the need to exercise discretion - Knowing there will be consequences for crossing the line

Louisiana Law Review

Volumn 60, Issue 2, 2000, Pages 371-403

  Dickerson Moore, Shelby A ^a  

^a SOUTH TEXAS COLLEGE OF LAW   (United States)

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EID: 25844444642     PISSN: 00246859     EISSN: None     Source Type: Journal    
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References (257)

1. Dennis Conrad, Court Oks 3rd Trial of Man in Killing Another Admitted, St. Louis Post Dispatch, July 15, 1994, at C2.
2. And for a detailed account of the events surrounding the matter of Rolando Cruz see Eric Herman, Conspiracy Theory, The American Lawyer, Mar. 1998, at 74-82.
3. David Heckelman, Cruz' Death Sentence Upheld, Chi. Daily L. Bull., Dec. 4, 1992, at 3 (A third co-defendant, Stephen Buckley, was also charged and tried for the murder of Jeanine Nicarico. However, the jury could not reach a verdict as to his charges, and prosecutors later dropped all charges against him.).
4. Gera-Lind Kolarik, DNA, Changed Testimony Gain Acquital: Special Prosecutor, FBI Investigating Controversial Illinois Murder Prosecutor, 82 A.B.A.J. 34 (1996).
5. Patricia Manson, Cruz Told Grand Jurors About 'Vision' Panel Members Say, Chi. Daily L. Bull., May 20, 1999, at 3. (A police officer testified that Cruz indicated he had a dream about the victim being struck on the head. He also testified that Cruz said he dreamed that the blows were so hard that the victim's head left an impression in the ground.) Id. See also Herman, supra note 1, at 79-80. (Special prosecutor William Kunkle believed that police officers and prosecutors fabricated the vision statement to support a weak circumstantial case. To support his conclusion, he pointed to the fact that there were no written notes about the vision; when Cruz gave tape-recorded confession, he made no mention of having a dream about the murder; officers who allegedly received the statement about the vision did not tell other officers working on the case.).
6. Patricia Manson, Defense Builds Fence to Trap Cruz in His Field of 'Dreams,' Chi. Daily L. Bull., May 19, 1999, at 3; Kolarik, supra note 3, at 34.
7. Allan H. Gray & Courtenay Edelhart, Judge Rules Cruz Innocent; Finally, 'The Whole Case Just Fell Apart,' Chi. Trib., Nov. 4, 1995. at 1; Herman, supra note 1, at 79.
8. Kolarik, supra note 3, at 34.
9. See Herman, supra note 1, at 79. (Edward Ciscowski, a commander with the Illinois State Police, interviewed Dugan about his involvement in the murder. In addition to providing impressive details of the murder, Dugan gave nine separate statements about killing Nicarico, including a lie detector test and a statement given under hypnosis. From this information Ciscowski concluded that Dugan acted alone in killing the victim. Prosecutors simply chose to ignore this evidence).
10. Kolarik, supra note 3, at 34.
11. Patricia Manson, Cruz Lawyer: Never Got Notes on 'Other Suspect,' Chi. Daily L. Bull., Apr. 23, 1999, at 1 (Lawyers for Rolando Cruz did not discover that there might be another suspect until a newspaper article suggested that another man claimed to be the killer. After an investigation, Cruz's lawyers received hundreds of documents related to Dugan as a result of discovery requests submitted to Dupage County prosecutors. However, prosecutors did not include a set of handwritten notes regarding a meeting with Dugan and his attorneys. Dugan gave a hypothetical confession because he wanted immunity from the death penalty.).
12. Mark Hensen, A Prosecutor's Duty: Assistant A.C. Resigns Rather Than Defend Conviction She Feels is Wrong, 78 A.B.A.J. 28 (1992).
13. Mark Hensen, A Prosecutor's Duty: Assistant A.C. Resigns Rather Than Defend Conviction She Feels is Wrong, 78 A.B.A.J. 28 ( 1992). Id.
14. Conrad, supra note 1, at C2.
15. Herman, supra note 1, at 78.
16. Kolarik, supra note 3, at 34.
17. Darryl Van Duch, Ten Years Later, Officer Recants: Accused Killer, Once on Death Row, Freed in 3d Trial, Nat'l. L.J., Nov. 20, 1995, at A6.
18. Herman, supra note 1, at 76-77.
19. See People v. Vosburge et al, Nos. 96 CF, 2586-2592.
20. Mark Hansen, How a Vision Failed: Indictment Calls Prosecution a Conspiracy Against Suspect, 83 A.B.A.J. 26 (1997).
21. Patricia Manson, Cruz Case Rigged Not Bungled: Kunkle, Chi. Daily L. Bull., May 28, 1999, at 1.
22. James Vorenberg, Narrowing the Discretion of Criminal Justice Officials, 4 Duke L. J. 651, 652, 679-681 (1976) [hereinafter Narrowing Discretion].
23. Robert L. Minser, Recasting Prosecutorial Discretion, 86 J. Crim. L. & Criminology 717, 741 (1996). (The prosecutor's office has become the most powerful office in the criminal justice system, particularly in the areas of charging, plea bargaining and sentencing.) Vorenberg, supra note 21, at 678;
24. Frank Miller, Prosecution: The Decision to Charge a Suspect With a Crime 151-350 (1969).
25. Ch. 20, 1 Stat. 72, 92-93 (1789). (The Judiciary Act also provided for the appointment of the Attorney General to represent the United States in litigation before the Supreme Court and provide legal advice to the President and Department heads.)
26. United States General Accounting Office, Report to Congressional Requesters 95-150, U.S. Attorneys: More Accountability for Implementing Priority Programs Is Desirable 4 (1995) [hereinafter GAO/GGD 95-150);
27. P.S. Kane, Why Have You Singled Me Out?, The Use of Prosecutorial Discretion for Selective Prosecution, 67 Tul. L. Rev. 2293, 2294-95 (1993);
28. Norman Abrams, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. Rev. 1, 2-3 (1971).
29. For a detailed historical account of the state prosecutors rise to power see Minser, supra note 22, at 728-32.
30. Id. at 729.
31. Homer S. Cummings & Carl McFarland, Federal Justice 13 (1937); Minser, supra note 22, at 729 n.69.
32. Minser, supra note 22, at 729 (indicating that during the late seventeenth and early eighteenth centuries, each colony established the office of the Attorney General. Its duties included the presentment of criminal indictments. By the time of the American Revolution, public prosecution replaced private prosecution through county officials. Some officials were deputies of the state attorney general who were nominated by the county court. They received little supervision from the attorney general. Other deputies operated with direct supervision, and others were county officials nominated by the local courts.). See Cummings & McFarland, supra note 27, at 13.
33. Joan E. Jacoby, The American Prosecutor A Search for Identity 19 (1980).
34. Joan E. Jacoby, The American Prosecutor A Search for Identity 19 ( 1980). Id.
35. Minser, supra note 22, at 729. Minser notes that the democratic zeal leading to the expansion of suffrage in the American republic from 1820 until just before the Civil War sparked the movement to elect local officials, including judges. After it became customary to elect local judges, it also became customary to elect the prosecuting attorney. Id.; Jacoby, supra note 29, at 24-26.
36. Jacoby, supra note 29, at 25, 38; Abraham Goldstein, History of the Public Prosecutor, in 3 Encyclopedia of Crime & Just. 1288 (Sanford Kodish ed. 1983). Professor Goldstein notes that the change in public and judicial perceptions of the local prosecutor from a low level judicial official to a member of the executive branch, was reflected in the new state constitution, which listed the prosecuting attorney as a member of the executive branch along with other local government officials.
37. Minser, supra note 22, at 729-30.
38. Id. at 730 n.80. See National Commission on Law Observance and Enforcement Report on Prosecution 14-15 (1931) (describing close connection between criminal justice and local politics during the early twentieth century.).
39. Jacoby, supra note 29, at 31. See also National Commission on Law Observance and Enforcement, supra note 34, at 15-16 (indicating that the prosecutor's office was generally filled by ambitious beginners who used the office as a stepping-stone to practice. The report also noted that the insufficient checks on prosecutorial discretion was "ideally adapted to misgovernment").
40. Misner, supra note 22, at 743. (noting that theoretically, criminal law policy is made by the legislature and implemented by the police, prosecutors, courts, and prisons. Since common law crimes have been abated and courts can no longer create new crimes to meet new challenges, the center for policy-making should be in the legislature. In reality, the legislature has relinquished much of its power to the prosecutor. For instance, prosecutors decide whether to charge, whether to prosecute, and the length of sentence. The prosecutor emerges as the real policy maker in the criminal justice system. As a result, the legislature is, at best, a lesser partner whose role is to set the outer parameters of criminal law policy and fund prisons.). See also Abraham S. Goldstein, The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea 52-75 (1981) (arguing that it is preferable to follow the common law development of rules for use of prosecutorial discretion rather than attempting to establish guidelines through the rule-making process);
41. Kenneth Davis, Discretionary Justice: A Preliminary Inquiry 189 (1969).
42. Vorenberg, supra note 21, at 678-82.
43. See Thurman W. Arnold, Law Enforcement: An Attempt at Social Discretion, 42 Yale L.J. 7, 17-18 (1932) (arguing that virtual unreviewability of the prosecutor's authority borders on anarchy);
44. Jackson, The Federal Prosecutor, 31 J. Crim. L. & & Criminology 3, 5 (1940) (noting that if a prosecutor can choose his cases, he can also choose his defendants. This is the most dangerous power of the prosecutor because he might pick people he thinks he should get rather that picking cases that need to be prosecuted.).
45. See also Packer, The limits of the Criminal Sanctions 290-91 (1968) (noting that the need for discretion is not a virtue. Rather it is lawless because a prosecutor has the ability to pick and choose whom to prosecute.).
46. Vorenberg, supra note 21, at 680.
47. Unites States v. Armstrong, 517 U.S. 454, 471, 116 S. Ct. 1480, 1489 (1996).
48. Yale Kamisar, et al., Modern Criminal Procedure 895-96 (8th ed. 1994);
49. Task Force Report, The Courts 5 (1967) [hereinafter Task Force Report].
50. Kamisar et al., supra note 41, at 859-96.
51. See Task Force Report, supra note 41, at 7; Kamisar et al., supra note 41, at 895-96 (1994).
52. Kamisar et al., supra note 41, at 895-896.
53. Id.; see also George T. Frampton, Jr., Some Practical and Ethical Problems of Prosecuting Public Officials, 36 Md. L. Rev. 5, 21 (1976).
54. See Wayne R. LaFave, The Prosecutor's Discretion in the United States, 18 Am. J. Comp. L. 532, 533 (1970);
55. see also Stephen A. Saltzburg & Daniel J. Capra, American Criminal Procedure 678-79 (5th ed. 1996); Minser, supra note 22, at 745. Professor Minser argues that the breadth of crime definition is a major source of prosecutorial power. He notes: "By choosing to create a large number of crimes, and by defining those crimes with the breadth proposed by the Model Penal Code, legislatures make it impossible to enforce all criminal statutes, and, at the same time, make it possible for a single act to be charged under many overlapping provisions." Id. at 745-46.
56. LaFave, supra note 46, at 533.
57. Saltzburg & Capra, supra note 46, at 628.
58. LaFave, supra note 46, at 533.
59. Id. at 533. Saltzburg & Capra, supra note 46, at 628 (noting that it is difficult to gain support to repeal sodomy laws even though there is a large number of citizens engaging in the proscribed behavior).
60. LaFave, supra note 46, at 533-34.
61. See Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530 (1985).
62. U.S. Const. art. II, § 3. The Constitution grants the executive branch the power and responsibility for law enforcement.
63. Wayte, 470 U.S. at 607, 105 S. Ct. at 1530.
64. See United States v. Johnson, 577 F.2d 1304, 1307 (5th Cir. 1978). For a discussion of separation of powers, see, for example, Developments in the Law - Race and the Criminal Process, 101 Harv. L. Rev. 1472, 1521 (1988) [hereinafter Race and the Criminal Process]; Kane, supra note 24, at 2293, 2309;
65. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L Rev. 1521, 1545-54 (1981);
66. Gifford, Equal Protection and the Prosecutor's Charging Decision: Enforcing an Ideal, 49 Geo. Wash. L. Rev. 659, 682-83 (1981); see also Goldstein, supra note 36, at 5, 51-58, 67-69;
67. Angela J. Davis, Prosecution and Race: the Power and Privilege of Discretion, 67 Ford. L. Rev. 13, 20 (1998);
68. Robert Heller, Selective Prosecution and the Federalization of Criminal Law: the Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. Pa. L. Rev. 1309, 1326 (1997).
69. Race and the Criminal Process, supra note 55, at 1521; Wayte, 470 U.S. at 607, 105 S. Ct. at 1530.
70. United States v. Falk, 479 F.2d 616, 637-38 (7th Cir. 1973) (en banc) (Pell, J., dissenting).
71. Race and the Criminal Process, supra note 55, at 1521.
72. See Wayte, 470 U.S. at 607-08, 105 S. Ct. at 1530; Race and the Criminal Process, supra note 55, at 1521;
73. Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. Pa. L. Rev. 1365, 1368 n.10 (1987); Vorenberg, supra note 55, at 1545-54; LaFave, supra note 46, at 533-34.
74. LaFave, supra note 46, at 534-35.
75. Id. at 534-35.
76. Roscoe Pound, Criminal Justice in America 67 (1930).
77. Race and the Criminal Process, supra note 55, at 1521.
78. See Daniel E. Lungren & Mark L. Krotoski, The Racial Justice Act of 1994: Undermining Enforcement of the Death Penalty Without Promoting Racial Justice, 20 U. Dayton L. Rev. 655, 674-77 (1995) (rejecting the need for the Racial Justice Act and noting the protections afforded minority defendants in the event a prosecutor abuses her discretion in charging capital cases).
79. See E. Michael McCann, Opposing Capital Punishment: A Prosecutor's Perspective, 79 Marq. L. Rev. 649, 658-59 (1996).
80. Id. at 658.
81. Id.
82. ABA Standards for Criminal Justice: Prosecution and Defense Function § 3-3.9-11 (3d ed. 1993) [hereinafter Prosecution Function]; McCann, supra note 65, at 658.
83. Prosecution Function, supra note 68, at § 3-3.11.
84. McCann, supra note 65, at 661.
85. Id.
86. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 (1962).
87. Id. at 390, 82 S. Ct. at 1373.
88. Id.
89. LaFave, supra note 46, at 535-36 (1970) (quoting Kenneth Davis, Discretionary Justice at 170): The discretionary power to be lenient is an impossibility without a concomitant discretionary power not to be lenient, and injustice for the discretionary power not to be lenient is especially frequent; the power to be lenient is the power to discriminate.
90. McCann, supra note 65, at 661-63.
91. Id. at 664.
92. Id. at 664-65.
93. Id.
94. Id.
95. Id.
96. See H.R. Rep. No. 98-1137, 98th Cong., at 124 (1984). In 1984, the House Committee on Governmental Operations found that U.S. attorneys were not to expend resources on bank fraud investigations. The House Committee also found that in 1983 the FBI, reduced by almost 15 percent the number of agents assigned to investigating white collar crime, especially embezzlement and fraud, and requested additional cuts in subsequent years. See also the Senate Banking Committee's testimony for the Resolution Trust Corporation (RTC), noting that even when it was clear that billions of dollars were being lost, government prosecutors did not issue one subpoena regarding the RTC
97. (remarks of Senator John Kerry), 140 Cong. Rec. 8192, 8192-93 (1991).
98. See Pete Brewton, The Mafia, CIA and George Bush 61-62 (1992);
99. David Burnham, Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice 241 (1996).
100. McCann, supra note 65, at 675.
101. Rose v. Mitchell, 443 U.S. 545, 558-59, 99 S. Ct. 2993, 3001-02 (1979).
102. Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-American Males: An Overview Perspective, 23 Cap. U. L. Rev. 23, 40 (1994);
103. Race and the Criminal Process, supra note 55, at 1525-29 (discussing multiple studies);
104. Michael L. Radelet & Glenn L. Pierce, Race and Prosecutorial Discretion in Homicide Cases, 19 L. & Soc. Rev. 587, 615-19 (1985).
105. Weatherspoon, supra note 86, at 40; Martha A. Meyers & John A. Hogan, Prosecutors and the Allocation of Court Resources, 26 Soc. Probs. 439, 446 (1979).
106. See Weatherspoon, supra note 86, at 43; see also Bob Levenson & Debbie Salamore, Prosecutors Seek Death Penalty in Black and White, Orlando Sentinel Trib., May 24, 1992, at Al;
107. Robert Bohn, Race and the Death Penalty in the United States, Race and Criminal Justice 71, 81 (Michael J. Lynch & E. Britt Patterson eds., 1991) (citing several studies involving state prosecutors which find racial bias in prosecutorial decisions to charge a defendant with a capital crime).
108. See Cassia Spohn et al., The Impact of Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges, 25 Criminology 175 (1987).
109. See Race and the Criminal Process, supra note 55, at 1527 and n.23;
110. Gary D. LaFree, The Effect of Sexual Stratification By Race on Official Reaction to Rape, 45 Am. Soc. Rev. 842, 844 (1980) (In addition to felony screening and charging seriousness, the study examined the correlation between race and arrest and verdict and sentence type.).
111. LaFree, supra note 90, at 844.
112. For a detailed look at other studies indicating that a defendant's sentencing severity is dependent upon race, see Race and the Criminal Process, supra note 55, at 1525-35 & nn. 19-63;
113. Angela J. Davis, Benign Neglect of Racism in the Criminal Justice System, 94 Mich. L. Rev. 1660, 1683 (1996).
114. Davis, supra note 92, at 1679.
115. Id.
116. Id.; see also infra Part III.
117. Lungren & Krotoski, supra note 64, at 674-77.
118. See, e.g., Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1530 (1985).
119. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617 (1986). For a history of the grand jury, see R. Younger, The People's Panel 1-2 (1963).
120. But see infra Part III arguing that, due to evidentiary barriers, a defendant's right to file a claim for racially selective prosecution offers little protection to a minority defendant.
121. See Irwin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639 (1961).
122. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
123. Turner v. Murray, 476 U.S. 28, 36-37, 106 S. Ct. 1683, 1688 (1986); see also Ristaino v. Ross, 424 U.S. 589, 596, 96 S. Ct. 1017, 1021 (1976).
124. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974).
125. McCleskey v. Kerap. 481 U.S. 279, 292, 107 S. Ct. 1756, 1762 (1987). Barclay v. Florida, 463 U.S. 939, 948, 103 S. Ct. 3418, 3423 (1983).
126. Davis, supra note 92, at 1679. See Town of Newton v. Rumery, 480 U.S. 386, 396, 107 S. Ct. 1187, 1182 (1987) (holding that prosecutors ought to be granted broad discretion since they must evaluate the strength of the case as well as other enforcement policies).
127. Davis, supra note 92, at 1679. See also. Race and the Criminal Process, supra note 55, at 1520-27; Davis, supra note 55, at 34-38.
128. David C. Baldus et al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990).
129. It is important to note that prosecutors are usually white males, meaning that 70% of prosecutors are male and 88% of prosecutors are white, non-Hispanic. See Bureau of Justice Statistics, U. S. Depart. of Justice, Prosecutors in State Courts 3 (1993); Davis, supra note 55, at 32-33 (indicating that while "unconscious" racism may be less offensive than purposeful discrimination, it is no less harmless);
130. Sheri L. Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988) (exploring unconscious racism in criminal law decisions);
131. Edward P. Boyle, Note, It's Not Easy Bein' Green: The Psychology of Racism, Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 Vand. L. Rev. 937, 939 (1993) (describing unconscious or "aversive" racism).
132. See Race and the Criminal Process, supra note 55, at 1520-32 (discussing race and its impact on the prosecutor's charging decision).
133. See supra notes 88-89; see also William J. Bowers et al., Legal Homicide 340-44 (1980);
134. William J. Bowers & Glenn L. Pierce, Arbitrariness and Discrimination Under Poji-Furman Capital Statutes, 26 Crime & Delinq. 563, 612-14 (1980).
135. 586 P.2d 916 (1978).
136. Id. at 919.
137. See Costello v. United States, 350 U.S. 359, 76 S. Ct. 406 (1956) (holding that hearsay evidence may be introduced to the grand jury as the basis of an indictment); Saltzburg & Capra, supra note 46 at 708-09. Saltzburg & Capra note four reasons tending to support the holding in Costello: First, inadmissible evidence often has probative value, and the grand jury's function is investigative, not adjudicative. Second, many evidentiary rules are designed to ensure fairness in an adversary proceeding, and the grand jury is not adversarial. (Related to this is the argument that a prosecutor cannot be expected to object to her own evidence, and that the general rule is that, even at trial, evidence that is technically inadmissible will be admitted if no objection is made). Third, any misleading effect of inadmissible evidence will be remedied at trial. Fourth, grand jury proceedings would be greatly burdened if the rules of evidence were applicable to them. The court would have to review decisions as to the admissibility of evidence. In order to make relevance and other rulings, supervising courts would have to ask grand juries why they wanted certain evidence, and this might infringe upon the independence of the grand jury. Id.; see also Davis, supra note 55, at 22 n.34; Andrew D. Leipold, Why Grand Juries Do Not (And Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 266 n.24 (1995); Vorenburg, supra note 55, at 1537-38.
138. United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613 (1974) (holding that illegally seized evidence can be used for the basis of grand jury questioning and possibly as the basis for a grand jury indictment).
139. United States v. Williams, 504 U.S. 36, 112 S. Ct. 1735 (1992) (holding that the rule requiring prosecutors to present all substantial evidence exceeded the court's supervisory authority because "the grand jury is an institution separate from the courts, over whose functioning the courts do not preside." Id. at 47, 112 S. Ct. at 1742.).
140. Batson, 476 U.S. at 106, 106 S. Ct. at 1728 (Marshall, J., concurring). Justice Marshall argued for eliminating peremptory strikes because of the possibility that prosecutors could make a discriminatory decision and offer a race-neutral justification. He stated: [A]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. . . . A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is "sullen," or "distant," a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported. As Justice Rehnquist concedes, prosecutors' peremptory challenges are based on their "seat-of-the-pants instincts" as to how particular jurors will vote. . . . Yet "seat-of-the-pants instincts" may often be just another term for racial prejudice. Id.
141. For a general discussion of race and the O.J. Simpson trial, see Rory K. Little, Guilt, Reasonable Doubt and the Reasonable Woman, 6 Hastings Women's L.J. 275 (1995);
142. Cheryl I. Harris, Myths of Race and Gender in the Trials of O.J. Simpson and Susan Smith, Spectacles of Our Times, 35 Washburn L.J. 225, 233 (1996);
143. Ronald J. Allen, The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets, 67 U. Colo. L. Rev. 989, 992 (1996).
144. David C. Anderson, Crime and the Political Hysteria (New York, Random House 1995);
145. Robert S. Blanco, Mixing Politics and Crime, 59 Dec. Fed. Probation 91 (1995).
146. For a detailed discussion of the historical development of selective prosecution claims, see Race and the Criminal Process, supra note 55, at 1535-43.
147. 118 U.S. 356. 6 S. Ct. 1064 (1886). Thomas W. Joo, New Conspiracy Theory of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. Rev. 353, 355 (1995) (arguing that the court's holding in Yick Wo was based on protection of economic rights rather than a conscious intent to protect the Chinese against racial discrimination).
148. Id. at 358, 373-74, 6 S. Ct. at 1065, 1072-73.
149. Id. at 373-74, 6 S. Ct. 1072-73.
150. See Race and the Criminal Process, supra note 55, at 1536; Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 401 (1944).
151. See United States v. Crowthers, 456 F.2d 1074, 1078-79 (4th Cir. 1972); United States v. Steele, 461 F.2d 1148, 1151-52 (9th Cir. 1972); United States v. Falk, 479 F.2d 616, 617-24 (7th Cir. 1973) (en banc).
152. United States v. Berrios. 501 F.2d 1207 (2d Cir. 1974).
153. 470 U.S. 598, 105 S. Ct. 1524 (1985); see Andrew H. Elder, Selective Prosecution for Failure to Register for the Draft: Have First Amendment Rights Been Infringed?, 53 U. Cinn. L. Rev. 765 (1984).
154. 470 U.S. at 601, 105 S. Ct. at 1527.
155. Id. at 604-07, 105 S. Ct. at 1529-30.
156. Id. at 608 n.10, 105 S. Ct. at 1531 n.10.
157. Id. at 608-10.105 S. Ct. at 1531-32.
158. Id.
159. Note, The Right to Nondiscriminatory Prosecution: The Effect of Announced Screening Policies, 36 La. L. Rev. 1107, 1110 (1976);
160. see also Race and the Criminal Process, supra note 55, at 1542.
161. 481 U.S. 279, 107 S. Ct. 1756 (1987).
162. See id. at 287, 107 S. Ct. at 1764.
163. Id. Specifically, McKleskey relied on the following findings of the Baldus study, which were noted by the court: The "raw numbers" found by the Baldus study also indicate that killers of whites received the death penalty in 11% of the cases while killers of blacks received it in only 1 % of the cases. The "raw numbers" also indicated a "reverse racial disparity" based on the race of the defendant: 4% of black defendants received the death penalty, compared with 7% of whites. Baldus further found that the death penalty was applied in 22% of the cases involving black defendants and white victims, 8% of the cases involving white defendants and white victims, 1% of the cases involving black defendants and black victims, and 3% of the cases involving white defendants and black victims. Regarding prosecutorial choices, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims, 32% of the cases involving white defendants and white victims, 15% of the cases involving black defendants and black victims, and 19% of the cases involving white defendants and black victims. Id. at 286-87, 107 S. Ct. at 1764.
164. Id. at 291-92, 107 S. Ct. at 1766.
165. Id. at 292-95, 107 S. Ct. at 1766-67. See also Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-67, 97 S. Ct. 555, 563-64 (1977) (holding that proof of discriminatory purpose is required in claims under the Equal Protection Clause of the Fourteenth Amendment).
166. McClesky v. Kemp, 481 U.S. 319, 107 S. Ct. 1756 (1987). Some commentators argue that given the Court's history of requiring proof of discriminatory purpose, the McCleskey decision, from a doctrinal perspective, was not surprising. See Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1402-08 (1988). Kennedy argues that "[e]xisting doctrine would not have made a contrary result implausible; had there been the will, available precedent could have lit the way. The point is that the decision rendered, albeit lamentable, was well within the ambit of expectations reasonably derived from prior rulings." Id.
167. H.R. 4442, 100th Cong., 2d Sess. (1988). For statements by Representative Conyers in introducing the bill, see 134 Cong. Rec. E1174 (daily ed. A, Apr. 21, 1988). For a discussion of Congress's authority under Section 5 of the Fourteenth Amendment to pass the Racial Justice Act, see Laurence H. Tribe, American Constitutional Law 1514 n.97 (2d ed. 1988);
168. Note, Too Much Justice: A Legislative Response to McCleskey v. Kemp, 24 Harv. C.R.-C.L.L. Rev. 437, 470-96 (1986) [hereinafter Too Much Justice];
169. Matt Pawa, When the Supreme Court Restricts Constitutional Rights, Can Congress Save Us?, An Examination of Section 5 of the Fourteenth Amendment, 141 U.P.A. L. Rev. 1029, 1086-91 (1993).
170. For a detailed discussion of the history of the RJA, see Lungren & Krotoski, supra note 64, at 656-61. But see Don Edwards & John Conyers, Jr., The Racial Justice Act: A Simple Matter of Justice, 20 U. Dayton L. Rev. 669 (1995). H.R. 5269, 101st Cong., 2d Sess. (1990). This version of the RJA passed the House as a part of the Comprehensive Control Act of 1990 but was subsequently dropped by the conference committee. The RJA was introduced and defeated in both the Senate and House in 1991. See H.R. 1249, 102d Cong., 1st Sess. (1991); H.R. 2851, 102d Cong., 1st Sess. (1991). The bill introduced in the House was renamed the "Fairness in Death Sentencing Act" See 137 Cong. Rec. 58300 (daily ed. June 20, 1991). The RJA was passed by the House in 1994 but died in conference. See H.R. 4017, 103d Cong., 2d Sess. (1994).
171. Weatherspoon, supra note 86, at 31; Ed Wiley III & Sean Jensen, Black and Latino Males Suffer the Most in the War on Drugs, Scholar Says, Black Issues in Higher Educ., Aug. 12, 1993. at 9;
172. United States Sentencing Commission. Special Report to Congress: Cocaine and Federal Sentencing Policy 156 (1995).
173. Fed. R. Crim. P. 16; U.S. v. Armstrong, 517 U.S. 457, 116 S. Ct. 1480.
174. Weatherspoon, supra note 86, at 30.
175. Id.; Davis, supra note 92, at 169-74.
176. Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America 82, 95-97 (1995).
177. Id. at 104.
178. See U.S. v. Armstrong, 517 U. S. 456, 476, 116 S. Ct. 1480, 1492 (Stevens, J., dissenting); 100 Stat. 3207, 21 U.S.C. § 841-852 (1994).
179. 21 U.S.C. § 841(b)(1)(iii) (1994); 21 U.S.C. § 841(b)(1)(A)(ii) (1994).
180. See 21 U.S.C. § 841(b)(1)(B)(ii) (1994); 21 U.S.C. § 841(b)(1)(B)(iii) (1994). Conviction for simple possession of five grams of crack results in a mandatory five-year sentence. However, the maximum sentence of possession of any quantity of other drugs is one year.
181. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (1995) [hereinafter USSG].
182. United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 145 (Feb. 1995) [hereinafter Special Report].
183. In 1993, 88.3% of federal prisoners convicted of trafficking were black, and 84.5% of federal prisoners convicted of crack possession were black. Id. at 152-53. Conversely, in 1993, 32% of federal prisoners convicted of trafficking powder cocaine were white, and 58% of federal prisoners convicted of powder cocaine possession were white. Id.
184. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter?, 6-7 (1993).
185. See generally David C. James, The Prosecutors's Discretionary Screening and Charging Authority, 29 APR Prosecutor 22 (1995).
186. Davis, supra note 92, at 1671-72. See generally William J. Powell & Michael T. Cimino, Prosecutorial Discretion Under the Federal Sentencing Guidelines: Is the Fox Guarding the Hen House, 97 W. Va. L. Rev. 373 (1994);
187. Steve Y. Koh, Note, Re-Establishing the Federal Judge's Role in Sentencing, 101 Yale L.J. 1109 (1992);
188. Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 Cal. L. Rev. 1471 (1993);
189. Elizabeth A. Parsons, Note, Shifting the Balance of Power: Prosecutorial Discretion Under Federal Sentencing Guidelines, 29 Val. U. L. Rev. 417 (1994).
190. United States v. Armstrong, 517 U.S. 456.116 S. Ct. 1480 (1996).
191. Id. For a detailed discussion of U.S. v. Armstrong and its impact on the prosecutor's charging decision, see Davis, supra note 55, at 42-50.
192. Armstrong, 517 U.S. at 479 n.5, 116 S. Ct. at 1493 n.5.
193. Id. at 479, 116 S. Ct. at 1493.
194. Id. at 461-63, 116 S. Ct. at 1485.
195. Fed. R. Crim. P. 16(A)(1)(C) (emphasis added).
196. Armstrong. 517 U.S. at 462-63, 116 S. Ct. at 1485.
197. U.S. Const. amend. VI.
198. Armstrong, 517 U.S. at 462, 116 S. Ct. at 1485.
199. Id. at 462-63, 116 S. Ct. at 1485.
200. Id. at 463, 116 S. Ct. at 1485.
201. Id.
202. Fed. R. Crim. P. 16, advisory committee's note.
203. Armstrong, 517 U.S. at 462, 116 S. Ct. at 1485.
204. Fed. R. Crim. P. 16, advisory committee's note.
205. Id. (emphasis added).
206. Id.
207. Id.
208. Armstrong, 517 U.S. at 471-76, 116 S. Ct. at 1489-92 (Breyer, J., concurring).
209. See United State v. Nobles. 422 U.S. 225, 239, 95 S. Ct. 2160, 2170 (1975); 8 Charles A. Wright et al., Federal Practice and Procedure § 2022, p. 324 (2d ed., 1994).
210. Armstrong, 517 U.S. at 474, 116 S. Ct. at 1491; Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 393 (1947); Jeffrey F. Ghent, Development. Since Hickman v. Taylor, of Attorney's "Work Product Doctrine," 35 A.L.R.3d 412, 465-469 § 25 (1971); see Wright et al., supra note 174, at 324.
211. 104 F.3d 1180 (9thCir. 1997). In Turner, five black defendants charged with distribution of cocaine alleged they had been selected for prosecution on crack cocaine charges because of their race and sought discovery in support of this allegation. Id. at 1181. The court held that the defendants could not rely upon the rule of criminal procedure relating to discovery. However, defendants could obtain discovery if they made an appropriate threshold showing, producing some evidence that similarly situated defendants of other races could have been prosecuted but were not. Id. at 1184. But see United States v. Jones, 159 F.3d 969 (6th Cir. 1998). In Jones, the court held that a black defendant was entitled to discovery on a selective prosecution claim based on unprofessional behavior by white police officers who arrested him and testimony implying that the local police department referred him for federal prosecution because of his race. Officers who executed the planned arrest wore custom-made T-shirts bearing the defendant's picture and the words "See ya, wouldn't want to be ya," and "going back to prison." While in Mexico, one officer sent the defendant a postcard depicting a black woman with a basket of bananas on her head with a note which read in part "chances are good you're going to jail for a long time." While the district court found that the defendant did not meet its burden as to selective prosecution, the court of appeals disagreed. It noted that while eight non-black defendants had been prosecuted in state court for crack offenses, the defendant, his wife, and co-defendant were referred for federal prosecution and while the defendant and his wife were taunted by T-shirts and postcards, their white co-defendant was not. The court concluded that the defendants met the burden set forth in U.S. v. Armstrong. Id. What is troubling is that the defendants produced an overwhelming amount of evidence to support their claim. The officer's racial bias was blatant. In most instances, however, such racial animus will be difficult to uncover, leaving the defendant without access to discovery to prove his selective prosecution claim. In addition, the Armstrong decision is murky and provides no real guidance as to what constitutes "some evidence" to allow a court to find a defendant is entitled to discovery.
212. Armstrong, 517 U.S. at 468-70, 116 S. Ct. at 1488-89.
213. Id. at 468, 116 S. Ct. at 1488.
214. Id.
215. Id. at 470, 116 S. Ct. at 1489.
216. Id. See Anne B. Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection after United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1090 (1997) (suggesting that even though the defendants in Armstrong did not prevail, such evidentiary hearings are useful because they expose disparate treatment of some defendants in the legal process, which may lead to a reduction in improper selective prosecution).
217. For a discussion of pre-indictment delay, see Unites States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (en banc).
218. Id. at 1500.
219. See Race and the Criminal Process, supra note 55, at 1550-1551.
220. See id.; Abrams, supra note 24, at 57; Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chic. L. Rev. 246, 291-98 (1980); LaFave, supra note 46, at 537-38.
221. Note, United States v. Falk: Developments in the Defense of Discriminatory Prosecution, 72 Mich. L. Rev. 1113, 1122-23 (1974).
222. Vorenburg, supra note 55, at 1564; Fritz B. Ziegler, Note, The Right to Nondiscriminatory Prosecution: The Effect of Announced Screening Policies, 36 La. L. Rev. 1107, 1113 (1976).
223. See Race and the Criminal Process, supra note 55, at 1538.
224. Id. at 1549.
225. Davis, supra note 92, at 1679.
226. See Kane, supra note 24, at 2308; Abrams, supra note 24, at 2-39.
227. See Frase, supra note 185, at 296-97.
228. Kane, supra note 24, at 2308; Abrams, supra note 24, at 56.
229. Kane, supra note 24, at 2308; Frase, supra note 185, at 292-96 (evaluating the written reasons approach).
230. Kane, supra note 24, at 2309.
231. Id.
232. Id.; Charles P. Bubany & Frank F. Skillern, Taming the Dragon: An Administrative Law for Prosecutorial Decision Making, 13 Am. Crim. L. Rev. 473, 475 (1976).
233. Kane, supra note 24, at 2309-10.
234. Reports and Proposals, 60 Crim. L. Rep. 1159 (B.N.A. Nov. 13, 1996).
235. Id.
236. Id.
237. Id.
238. See GAO-GGD 95-150, supra note 24, at 2-3.
239. Id.
240. Commerce, Justice & State Act, Pub. L. No. 105-119, Tit. VI, § 617, 111 Stat. 2519 (1998) (The Provision can be found as a statutory note to 18 U.S. C. A. § 3006 A). The Statute provides: During fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other than a case in which a defendant is represented by assigned counsel paid for by the public) pending on or after the date of the enactment of this Act, may award to a prevailing party, other than the United States, a reasonable attorney's fee and other litigation expenses, where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. Such awards shall be granted pursuant to the procedures and limitations (but not the burden of proof) provided for an award under section 2412 of title 28, United States Code. To determine whether or not to award fees and costs under this section, the court, for good cause shown, may receive evidence ex parte and in camera (which shall include the submission of classified evidence or evidence that reveals or might reveal the identity of an informant or undercover agent or matter occurring before a grand jury) and evidence or testimony so received shall be kept under seal. Fees and other expenses awarded under this provision shall be paid by the agency over which the party prevails from any funds made available to the agency by appropriation. No new appropriations shall be made as a result of this provision. Id.
241. See Stuart Taylor, Jr., It's Payback Time, Texas Lawyer, Nov. 10, 1997. at 23.
242. Id.
243. Id.
244. Id.
245. Id. As of this date, there are no reported cases interpreting the Hyde Amendment.
246. Taylor, supra note 206, at 23, 26.
247. Id.
248. Id. at 26.
249. Terry Burns Copley, Lawyers: Too Many Bad Prosecutors, The State Journal Register, June 22, 1992, at 11.
250. Eye On America Takes a Look at the Misconduct of Prosecutors and How Many Innocent People are Being Sent to Jail (CBS Evening News, Tues., June 1, 1999). News anchor John Roberts interviewed a New Orleans attorney, Laurie White, who helped to reverse the convictions of nine men and to free six of them from prison by showing that in each case prosecutors either withheld or had evidence that pointed to the defendants' innocence. In one of the most egregious cases, prosecutors convicted a black defendant for murder causing him to spend 27 years in prison. Despite statements from two eyewitnesses, prosecutors withheld evidence that a white suspect was at the murder scene. Unfortunately, of the nine cases where Laurie White found misconduct, not one prosecutor faced public sanction.
251. Copley, supra note 214, at 11.
252. Id. (Noting that some prosecutors cross the line because they believe what they are doing is right. They believe they know who is guilty, and cross the line out of fear that the guilty person will be exonerated).
253. Hansen, supra note 19, at 27.
254. Copley, supra note 214, at 11.
255. Hansen, supra note 19, at 27.
256. Minser, supra note 22, at 741.
257. Id.