Racism and prosecutorial cheating

Southern prosecutors continue to use peremptory challenges to stack juries with whites. To do so, they have to violate their oaths of office and then lie about it.

Hard to say which is the more distressing aspect of the latest study on Southern prosecutors’ abuse of the peremptory-challenge process to create all-white, or nearly all-white, juries: the fact that official racial bias is still a fact of Confederate life, or the fact that prosecutors – officers of the court, sworn to uphold the Constitution – routinely cheat, lie about it, and get away not just without having convictions thrown out but without any sort of professional stigma. In some offices, junior prosecutors get explicit training in how to successfully violate the Constitution and deceive the court (which seems, too often, more than willing to be deceived.

In theory, prosecutors pursue justice within the constraints of the law; too often, in practice, they’re just looking to carve notches in their briefcases.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

11 thoughts on “Racism and prosecutorial cheating”

  1. Time for another plug for a great book, "Ordinary Injustice: How America holds court" by Amy Bach. Read with "The New Jim Crow" and your book, it's a triple crown of insight into what has indeed become a criminal justice system.

  2. Ugh. I think one of the most pernicious things in the way the current jury system is run is that both sides get to spend so much time crafting the jury. No engineers on science cases, no people with run-ins with the police on cop violence cases, etc. etc.

    Juries are supposed to manifest the common wisdom of the community. You can't do that if lawyers get to get rid of a huge percentage of the people they don't like on each case.

  3. Add to that, getting rid of anybody they've got any reason to suppose is aware of jury nullification, the REASON we have juries to begin with.

  4. How would any lawyer know that a potential juror is aware of jury nullification unless the potential juror states that fact in court?

  5. All of the incentives for prosecutors are to convict the person in front of them, however possible. This is not a good place for a representative of the state to be. But what structural changes would be effective?

  6. Brett,

    well, that's a reason we have juries. It's just the one reason no legal system can ever admit is a reason. And, actually, that's a good thing. The same holds more broadly in the law: I am a legal realist, but there are excellent reasons for judges to pretend that no such thing as legal realism exists. (I don't mean they should deceive the public on that point; I believe that, in all but the most extraordinary circumstances, they should deceive themselves as well.)

  7. Two comments:

    1. By associating prosecutorial misconduct with racism, Mark seems to imply that prosecutors from less racist areas are less prone to misconduct. I don't think so. There is no American institution more insulated from accountability than a prosecutor's office. (Unless, of course, the defendant is rich.) Given their virtual sovereignty, I'm surprised that prosecutors aren't, in fact, much worse than they are.

    2. Historically, Brett is correct. IIRC, juries in the 1780's decided on both the facts and the law, opening the door wide to nullification. OTOH, judges in that era were free to instruct jurors on both the facts and the law, maybe shutting the door a bit.

  8. Mrs. Tilton, how about honesty from judges? They should not deceive the public or themselves. They should acknowledge that judges make law, and that judges have the power to make it according to their personal predilections. But, they should add, a judge who does so abuses his authority, and that they will in good faith attempt not to abuse their authority, but to follow precedent, legislative intent, and so forth. They should also tell the public that judges, like Roberts and Sotomayer, who claim at their confirmation hearings that they merely apply the law mechanically, are lying, but that members of the Senate Judiciary committee effectively force them to lie if they want to be confirmed.

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