Et in Arcadia Ego: A Perspective on Black Prosecutors' Loyalty within the American Criminal Justice System

57 Pages Posted: 3 Feb 2010  

Lenese C. Herbert

Albany Law School; Howard University School of Law

Date Written: 2006


This Article rejects as facile notions of African American prosecutor loyalty to the criminal justice system, the prosecutor’s office and colleagues, racial group, or any dilemma in upholding her oath of office as an African American. Instead, this Article maintains that there is no need to choose professional or racial loyalty and acceptance, for both cannot be simultaneously achieved. Because the meaning of racial loyalty is fuzzy, its dictates in specific cases impossible to determine in the light of conflicting social forces, and because a frequently unjust criminal justice system or race-based criminal prosecutions cannot merit unquestioned loyalty. The only loyalty possible for the black prosecutor is to justice. This brand of loyalty is not inconsistent with, but indeed is dictated by, the prosecutor's professional role, for ethics codes repeat like a mantra that the prosecutor's duty is not simply to convict but to "do justice." "Doing justice" is not a vague guide; it is resolved by "clarity." An African American prosecutor promotes justice when he or she aids in the effective dissemination and consideration of these cognitive and affective perspectives. Where the individual prosecutor has the freedom to make decisions and take actions independently, she must ensure that her own actions are informed and guided by these perspectives. But having black skin color does not alone ensure that a prosecutor will be an effective advocate of a wider range of views. A black prosecutor must, therefore, work toward "clarity" about the role of race in the criminal justice system and in the prosecutor's own life. Clarity requires knowledge of racial history and criminal justice, of current social conditions, and of the multiplicity of perspectives (rather than buying into a simple duality) at work in most situations, solid lawyering experience, and personal judgment. Clarity also includes knowledge that race is still but one part of life - and thus of justice - while race simultaneously intersects with class, gender, and other features of social life to add complexity to racial dynamics. Clarity further requires true appreciation of the prosecutor's own power and re-envisions the criminal justice system as a bottom-up rather than a top-down mechanism, learning from and serving the affected citizenry and the community rather than instantly presuming that the elites know best. Clarity enables the African American prosecutor to serve the entire nation by advancing the socially-conscious gadfly's role. In this sense, therefore, it is by loyalty to a capacious notion of justice, rather than to race, role, self, or organization, that the African American prosecutor can be most proud.

Keywords: Loyalty to a Capacious Notion of Justice, African American Prosecutor

Suggested Citation

Herbert, Lenese C., Et in Arcadia Ego: A Perspective on Black Prosecutors' Loyalty within the American Criminal Justice System (2006). Howard Law Journal, Vol. 49, No. 2, pp. 495-551, 2006. Available at SSRN:

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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