When Prosecutorial Discretion Meets Disaster Capitalism

Lenese C. Herbert

Albany Law School; Howard University School of Law



This Chapter examines the abuse of prosecutorial discretion by D.A. Mike Nifong in an attempt to explain how this elected official exploited for his personal political gain an alleged race-based sexual assault by a gang of privileged, white, male lacrosse players upon a young Black co-ed student in the deep American South. The Chapter asserts that Nifong's manipulation of the shock and subsequent trauma felt by the public in general and the Black Durham, NC citizenry in particular, was textbook disaster capitalism, i.e., an economic theory that explains how capitalists exploit catastrophic "shocks" upon the public's consciousness for political gain via violation of individual liberties is not new. What is new, according to this Chapter, is how Disaster Capitalism should no longer be regarded as a tool of mighty heads of state, vicious dictators, or mercenaries. Rather, Disaster Capitalism is also the methodology of manipulation relied upon by certain public officials whose private interests and personal agendas hide behind the face of public trust. These officials, often as adeptly as private actors, corral a compliant, traumatized public into relinquishing the rule of law and civil liberties - especially of others - in order to feel safe. Drawing upon the parallels seen in the Central Park Jogger case (where prosecutors exploited race-based fears of Black male sexuality, violated the civil liberties of the accused minors, and convicted the accused with coerced confessions), this Chapter notes how, despite their oath to do justice and perform ethically, criminal prosecutors can and will manipulate a frightened public for personal gain, particularly given the high levels of unchecked discretion and power such officials enjoy. By bringing Durham, North Carolina's race-based difficulties to bear upon what, initially, appeared to be a horrific gang rape of Crystal Mangum, Nifong purposely misled the collective unconscious of a traumatized Black population when, almost immediately and upon further investigation, it was clear Mangum had not likely been assaulted at all. Luckily for the players (whose wealth, race, and "victim" served them favorably), they did not suffer the fate of the boys convicted in the Central Park Jogger case who served jail terms, which many others do, as most criminal defendants have no ability to overcome the power of the prosecutor, especially in the face of a shocked, traumatized, and hapless public.

Number of Pages in PDF File: 25

Keywords: Prosecutorial Discretion, Disaster Capitalism

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Date posted: February 4, 2010  

Suggested Citation

Herbert, Lenese C., When Prosecutorial Discretion Meets Disaster Capitalism (2008). RACE TO INJUSTICE: LESSONS LEARNED FROM THE DUKE UNIVERSITY LACROSSE PLAYERS RAPE CASE, pp. 211-235, Michael L. Seigel, ed., Carolina Academic Press, 2008. Available at SSRN: http://ssrn.com/abstract=1547199

Contact Information

Lenese C. Herbert (Contact Author)
Albany Law School ( email )
80 New Scotland Avenue
Albany, NY 12208
United States

Howard University School of Law ( email )
2900 Van Ness Street, N.W.
Washington, DC 20008
United States

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