Race-ing Prosecutors' Ethics Codes
Ellen S. Podgor
Stetson University College of Law
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
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."
Number of Pages in PDF File: 17
Keywords: discretion, ethics, criminal law, race, Jena Six, compassion, philosophy
JEL Classification: K114
Date posted: December 28, 2008 ; Last revised: September 28, 2009