Addressing Armstrong in Selective Prosecution: My Proposed Solution to Assembly Line Injustice
Our legal system does not function as a system of justice. Instead, it serves as a glorified assembly line to prison, especially for people of color. At the heart of this system are prosecutors: as the most powerful actors in the legal system, they have significant responsibility for ensuring that the system operates fairly. Yet all across the country, prosecutors are failing in this role. They are selectively enforcing laws against people of color and seeking increasingly more punitive punishments. I believe that a new structure in which prosecutors’ offices and public defenders’ offices are merged and attorneys rotate to serve in both positions would change the way the legal system prosecutes alleged offenders, making the system more equitable and just.
Prosecutors’ power stems from their complete control over charging decisions. They decide whom to charge, what to charge, the terms of plea deals, and whether to dismiss charges. These decisions happen in private and without oversight. Sometimes, this prosecutorial discretion is used to enact reforms that legislatures are unwilling or unable to pass; for example, the Department of Justice during President Obama’s administration instructed federal prosecutors to only prosecute marijuana cases that involved other crimes, like money laundering or gang activity. However, selective prosecution is most often targeted against people of color. Black men are imprisoned at disproportionately high rates and are sentenced to longer prison terms than white men. A study on sentencing practices found that this is almost entirely due to prosecutors’ initial charging decisions: “After controlling for pre-charge case characteristics, prosecutors in our sample were nearly twice as likely to bring [a charge carrying a ‘mandatory minimum’] against black defendants.”
Decisions to prosecute people of color more often and more harshly are particularly damaging because they are almost impossible to review. Charging decisions are made among prosecutors and without oversight. The former United States Attorney and Supreme Court Justice Robert Jackson once described exactly how dangerous selective prosecution could be: “‘The prosecutor has more control over life, liberty, and reputation than any other person in America’ … the prosecutor’s power to choose his defendants also gives him the power to pick ‘some person whom he dislikes or desires to embarrass, or select some group of unpopular persons and then look for an offense.’” Despite the grave consequences of this power, the courts have been extremely reticent to impose any checks on prosecutors’ power to charge.
In 1886, a Chinese man challenged San Francisco’s practice of selectively prosecuting Chinese nationals for operating laundry businesses without a license. This is the only case to ever succeed in proving selective prosecution. Today, a Supreme Court case from 1996 is the ruling precedent for bringing a case against a prosecutor for selective prosecution. In this case, United States v. Armstrong, it was argued that the government was choosing to prosecute Black people more harshly for crack cocaine offenses than white people. In denying this claim, the Court created the standard required for future defendants to get discovery from the prosecution. Discovery is the process in which pertinent information is exchanged between both sides in order for each side to be knowledgeable about the facts of the case and best support their argument. The Court ruled that in order for the defendants to get access to the prosecutors’ files on selective prosecutorial practices, they first have to show evidence of discriminatory intent and discriminatory effect.
Evidence of discriminatory intent is any information that shows that the prosecutors purposely single out people of a specific race to prosecute. Essentially, what the Court demands to fulfill this requirement is a “smoking gun,” so to speak: some piece of evidence proving that the prosecutors specifically chose to prosecute the defendant because of their race. Any race-neutral explanation could be used to obfuscate the prosecutors’ real intent; not to mention, it’s extremely unlikely for a prosecutor to be so brazen as to create evidence that shows they are specifically prosecuting a case because of a person’s race. The requirement for discriminatory intent also does not account for the probability that discrimination can occur in prosecuting decisions without any malicious intent, for example, through unconscious biases held by prosecutors.
Discriminatory effect, according to the Court, requires showing evidence of similarly situated people of another race who were not prosecuted for the same offense. In the case of Armstrong, this required the defendants to find white people who were arrested for crack cocaine usage but never federally prosecuted. This was a challenging demand, as arrest records are not public, so it would have been exceedingly difficult to find the names and races of people who were arrested for similar crimes but not prosecuted. The Court ruled that the requirements for evidence of both discriminatory intent and discriminatory effect were needed just to get discovery. This means that without evidence of discriminatory intent and discriminatory effect, defendants cannot gain access to prosecutors’ records concerning their charging practices. This creates an impossible situation for defendants: in order to get access to prosecutors’ files, they need to show evidence of discriminatory intent and discriminatory effect, but how can they find evidence of either one without access to prosecutors’ files? It is not surprising that since the Court set this standard in Armstrong, there has never been a successful case against selective prosecution.
I propose that one possible solution to prosecutors’ unchecked power and the effect that it has on the criminal justice system is to combine prosecutors’ offices and public defenders’ offices into one entity with attorneys who rotate through both positions. Prosecutors are able to selectively bring charges against people of color because those decisions are made in private and courts are unwilling to scrutinize how the decisions are made. If prosecutors were required to also serve as public defenders, they would likely be more cognizant of who their charging decisions affect and whether they are treating people of color more punitively. The charging decisions would be made in an environment more conducive to empathizing with accused individuals and examining racial disparities.
Merely merging the prosecutors’ and public defenders’ offices and requiring attorneys to try cases in both positions would be unlikely to completely end the practice of selective prosecution. However, it would facilitate a greater likelihood of challenging racially selective prosecution when it occurs. Armstrong requires both evidence of discriminatory intent and discriminatory effect in order to proceed with such a case; if the public defenders worked in the same offices as the prosecutors, and acted as prosecutors themselves in other cases, they would be far more likely to have access to evidence demonstrating discriminatory intent and effect prior to obtaining discovery. Any attorney with racist motivations would be known throughout the office, and a “smoking gun” of text messages or comments insinuating race-based intent would be much harder to hide. Also, the public defenders would have knowledge of arrests and potential cases in which charges were never filed. In this environment, it would be possible to succeed in a claim of selective prosecution; and, hopefully, this fact alone would discourage selective prosecution from occurring in the first place.
Prosecutors have incredible power and little oversight, which allows them to charge individuals however they want to, whether or not those charges are distributed equitably. Currently, prosecutors charge people of color at disproportionate rates and with disproportionately harsh charges and are never held accountable. I believe that combining the prosecutors’ and public defenders’ offices and requiring attorneys to perform each job would result in a more equitable system by increasing consciousness of and restricting selective prosecution and facilitating oversight when it does occur. This would create a more fair criminal justice system and work towards ending the practice of populating American prisons with people of color.
