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March 28, 2012

A timely article urging prosecutors to be "color-conscious" rather than "color-blind"

With all the controversy and media attention surrounding the shooting of Trayvon Martin by George Zimmerman and the response of the Florida criminal justice system, I think this article recently posted on SSRN is especially intriguing and timely.  The piece is titled "Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors," and is authored by Justin Murray. Here is the abstract:

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral.  They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America.  They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans.

In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties.  Color consciousness is complex and multi-dimensional.  It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime.  It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal.  Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law.  Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more.

Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.

Prosecutors are different.  They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice.  Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations.  This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.

This article, which surely was written well before the Martin-Zimmerman tragedy took place, appears focused mostly on how prosecutors ought to be conscious of racial realities in cases involving young black male defendants.  In the Martin-Zimmerman situation, the twist is whether and how prosecutors who might be inclined to "embrace a color-conscious vision of their professional duties" should change their approach to a case when it involves a young black male victim.

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"A timely article urging prosecutors to be 'color-conscious' rather than 'color-blind'"

Translation: "Racism is OK as long as it favors the race I prefer."

Haven't we been to this place before? Did we not take some considerable trouble to leave it?


Posted by: Bill Otis | Mar 28, 2012 4:16:16 PM

I agree with Bill.

Besides, the real issue in the present case has nothing to do with prosecutors. It's about the police, a point I've hammered before. I don't believe that the majority of racial discrimination takes place in well-lighted offices where people clean their fingernails. It takes place on the mean streets of the city where the beat cop acts first and asks questions later. There is no point in building a new house if the foundation is still rotten.

Posted by: Daniel | Mar 28, 2012 6:19:56 PM

Taken to the extreme, this view leads to what an actual potential juror said during voir dire in a case of mine several years ago. "It does not matter how much evidence the DA produces, I will not vote to convict a back man." She claimed to be a social justice and morality professor. The crime, which she knew when she made her statement, attempted murder and robbery in concert with a gun. The victim barely survived. As if it mattered, and she did not know this, the victim was black.

Fairness in prosecution is simply not achieved by taking in to account the race of the defendants. What might their victim's say anyway?

For those who want to know, the (excused) juror was white.

Posted by: David | Mar 29, 2012 12:28:49 AM

"Color-Conscious Professional Ethic"
Is this new? I thought it was designed for the Little Rock Central High School admissions office in 1957.

BTW David, read: "social in-justice and im-morality professor," no?

"...I still have a dream. It is a dream deeply rooted in the American dream....I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

Are we absconding from this concept of Martin Luther King Jr., moving farther away every day?

Posted by: Adamakis | Mar 29, 2012 10:59:02 AM

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