The Unbridled Power of the Prosecutor



The prosecutor is one of the most powerful actors in the criminal justice system. Should the cop who gunned down that black child for no reason and then lied about it in his police reports be prosecuted for murder? It’s the prosecutor’s decision. The number of women in prison jumped 646% between 1980 and 2010? That’s a reflection of changing prosecutor decisions. Should that special needs child who was acting out in class be criminally charged? The prosecutor will decide. Black men are six times more likely to be imprisoned for the same crime as their white counterparts? Again, it mostly comes down to the prosecutors. Prosecutors decide who will be charged, how severely to charge the crime, and what sort of plea deal to offer the defendant. With 94-97% of criminal charges ending in a plea bargain, the prosecutor’s sole discretion to offer a plea deal has a tremendous impact on who is behind bars and how long they are spending there.

So let’s look at who is wielding this enormous power. The short answer is mostly a lot of white men. Although white men make up only 31% of our population, about 95% of the country’s elected state and local prosecutors are white. Of those, 79% of our country’s elected prosecutors are white men. And three-fifths of the states in this country have no elected black prosecutors at all.

With so much resting on each individual prosecutor’s discretion, it is important to look at how the individuals shape the culture and personally create their own trends in prosecution and sentencing. Consider the infamous prosecutor Dale Cox of Caddo Parish, Louisiana (New Orleans). His county has more per capita death sentences than anywhere else in the country, largely because he advocates that the state should “kill more people,” particularly the “savage[s]” in the “jungle” that make up his county. Although Cox’s extreme, racist, personality-driven prosecutions perhaps garner the most national press, he exemplifies a prevalent problem.

The prosecutor in Chicago, Cook County State’s Attorney Anita Alvarez, has recently come under serious fire for waiting 400 days, despite having a highly incriminating video, before charging Chicago police officer Jason Van Dyke with murder for shooting Laquan McDonald. Alvarez waited over a year before initiating charges, until her hand was forced by a court order releasing the police shooting video to a journalist (thanks to Loevy & Loevy attorney Matt Topic). In response to the national scrutiny, one of Alvarez’s former assistant prosecutors, Nicole Gonzalez Van Cleve (now a professor), wrote a piece for NBC News describing what it was like to work in “Anita’s Army.” She describes “a prosecutor’s office and a legal culture fueled by racism. Mug shots of black and Latino defendants were hung like wallpaper in their offices. Diagrams of dead bodies of victims were compared and traded with a sense of one-upmanship.” A supervisor took evidence photos of black bodies in pain or dead and framed them in a sickening display of “art” around her office. The cops routinely lied, but the prosecutors didn’t care. Part of this indifference comes from the extreme devaluing of black and Latino lives. And part of it is because assistant state’s attorneys who call out cops for lying are marginalized, reprimanded, and ostracized. If an assistant prosecutor wants to win cases (which is necessary for earning respect and getting promoted), then the attorney needs the cops on her side. Prosecutors who balk at obviously flawed stories from the police are punished by their supervisors and by uncooperative cops, the very people they need as witnesses in order to win cases.

The net result is that police lie (“testily,” as they call it) and the prosecutors wink and look the other way. Former San Francisco Police commissioner Peter Keane put it this way: police officer perjury in court is routine and commonplace, one of “the dirty little not-so-secret secrets of the criminal justice system.” And prosecutors play a pivotal role in perpetuating the charade.


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