Race-ing Prosecutors' Ethics Codes

17 Pages Posted: 28 Dec 2008 Last revised: 28 Sep 2009

Ellen S. Podgor

Stetson University College of Law

Date Written: December 26, 2008

Abstract

This Essay examines prosecutorial discretion, using the decisions made in the Jena Six incident as its example for change. Two crucial considerations, omitted in this decision-making process, are offered here. First is the importance of examining cases globally as opposed to making prosecutorial decisions using a one-dimensional process. Looking only at whether specific facts support a particular charge fails to account for promoting justice in situations that might be threaded to a particular theme. Merely matching facts to elements of a statute fails to provide a thoughtful recognition of what is in fact a "just" resolution. Second is the need to be vocal when an injustice warrants correction. The affirmative duty of a prosecutor to promote justice has both symbolic and practical implications.

This Essay examines the discretionary decision-making process from the perspective of legal and ethical mandates that are intended to guide prosecutors in their choices. In looking at the hortatory guidance provided to prosecutors, it considers the role of compassion and how compassion can be used to ensure fairness in the process. While personalities can clearly influence a charging decision, it is important to make certain that the decisions are not made as a one-dimensional process. Rather, it is necessary that the decision-making process examines all factors and circumstances in order to make certain that the prosecutor acts as a true "minister of justice."

Keywords: discretion, ethics, criminal law, race, Jena Six, compassion, philosophy

JEL Classification: K114

Suggested Citation

Podgor, Ellen S., Race-ing Prosecutors' Ethics Codes (December 26, 2008). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 44, p. 461, 2009; Stetson University College of Law Research Paper No. 2009-10. Available at SSRN: https://ssrn.com/abstract=1320683

Ellen S. Podgor (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727 562 7348 (Phone)

HOME PAGE: http://www.law.stetson.edu/tmpl/faculty/memberProfile.aspx?id=88

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