| Law professor examines
prosecutorial power in new book BY MIKE UNGER
Photo courtesy of WCL |
Angela Davis describes the work she undertook for a dozen years in the Washington Public Defender’s Service (PDS) as “the most important I’ve ever done.” “It was a life-changing experience for me,” the Washington College of Law professor says. “I was representing poor people, but more importantly for me, these were people who all of society had turned their back on. I loved freeing people from the system, loved it when my clients were found not guilty, loved being able to keep them out of the awful prison system, which only made their lives worse.” It was during this time, largely in the 1980s, that Davis became fascinated—and disturbed—by prosecutorial power run amok. As her intellectual curiosity began pulling her from the courtroom toward the classroom, she began delving deeper and deeper into the subject. It became the backbone of her research when she entered the academy in the 1990s, and it is the focus of her new book, Arbitrary Justice: The Power of the American Prosecutor. In the book, Davis maintains that prosecutors in many instances are more powerful than the judges before whom they argue. “What judges do, they do in open court,” she says. “But with prosecutors, the most important decisions that they make are made behind closed doors. Those decisions are the charging and plea bargaining decisions. They answer to no one for those decisions. They do that every day. We don’t know which cases are getting dismissed behind closed doors. Same with a plea bargain decision. Those are the decisions that drive the system. Ninety-five percent or more of all cases are resolved by way of a guilty plea.” Davis draws heavily from her experiences in Washington’s PDS to illustrate many of the points in her book. “I would see two cases with people charged with the same thing, very similar facts, very similar criminal records or lack thereof, yet one would get a great plea offer, one wouldn’t, or one case would get dismissed and one wouldn’t,” she says. “There didn’t seem to be legitimate reasons for the difference in treatment. Often times the difference in treatment seemed to break down along race and class lines, although I do not believe that most prosecutors intentionally discriminate against people based on race or class. I think it’s just a very unconscious thing, as it is with all of us in society.” Raised in small Alabama town in the 1960s, Davis witnessed discrimination and injustice firsthand. “A lot was going on when I was growing up in the south,” says Davis, who lived near Ft. Benning, Ga., where her father served in the military. “Even though the laws had changed, there were ‘colored’ and ‘white’ signs for local accommodations. I was very motivated by that. I knew I wanted to be a lawyer from sixth grade. I always was pretty good at debate and arguing. I believed that lawyers had the ability to make a difference for poor people and people who were disadvantaged and disempowered, and I felt that my own particular skills were such that I could use them in that way.” Following in her three older sisters’ footsteps, Davis enrolled at Howard University, where she earned a degree in political science. After that, she was northbound again, off to Harvard Law School. In her more than a decade at WCL, Davis has become a foremost expert on prosecutorial power. Although it’s an issue that sometimes has flown under the radar, it recently was thrust into the national spotlight by a case in Durham, N.C. Last week, charges against three players on Duke University’s lacrosse team for allegedly raping an exotic dancer at a team party were dismissed by North Carolina attorney general Roy Cooper, who described prosecutor Michael Nifong as a “rogue,” and said charges against Nifong were “possible.” “We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations,” Cooper said at a news conference. “There were many points in this case where caution would have served justice better than bravado.” Davis sees the case as anything but an exception. “This happens to people every day, but because they’re these fancy kids at Duke everyone was outraged,” she says. “Nifong got referred to the bar council, and good, but that sure is rare. He got referred because of the publicity that case got, and those kids had high-powered lawyers. Most people who suffer the same mistreatment do not get that. I’m glad for them, and I’m also glad because hopefully that case will have some trickle-down effect.” Davis offers in the book a number of proposals to curb prosecutorial power, ranging from a sweeping study on the racial impact of prosecutorial decisions to public education campaigns. But the most important action that must be taken, she maintains, is an increase in the severity of discipline doled out to prosecutors who are found to have violated the law. “We have to improve that system,” she says. “I think the reason we keep having this misconduct over and over is because they’re not disciplined. I think the line between the legal exercise of discretion and prosecutorial misconduct gets blurred. We need more training in prosecutors’ offices but we also need ramifications when they violate the law. I think some major reform is needed. The American Bar Association needs to step up and take leadership. There’s been such a hands-off approach when it comes to prosecutors, and I don’t know why. “When people are involved in the criminal justice system, when they’re a victim themselves, or a family member is victimized, or they’re charged with a crime or someone in their family is, then they start seeing and they become outraged by it. We’ve got to start paying attention because with all the wrongful convictions that we’re learning about every day, people being locked up, put on death row when DNA shows they didn’t do it, you just never know. Could be you, could be your family member. So we need to all care very much about how our criminal justice system works. We need to fear the power of the prosecutor. We need to respect them, thank them for what they do, but we also need them to be humbled by their power and not made arrogant by it.” |
