Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System

50 Pages Posted: 16 May 2014 Last revised: 21 May 2014

Date Written: 2014


Prosecutors have a special ethical duty to seek justice. However, prosecutors cannot meet that duty where zero-tolerance policing has resulted in overburdened lower criminal courts. Prosecution in these overburdened courts undermines justice in two important ways. First, because zero-tolerance policing is typically enforced in communities of color, racial disparities in criminalization are exacerbated and unequal enforcement of the law is permitted. Second, the overburdened criminal justice system does not reliably distinguish between constitutional and unconstitutional arrests, or between guilty and innocent individuals.

This Article examines the discretionary power that rests in the prosecutor’s office and the ethical duty to seek justice that guides that power. To promote justice chief prosecutors should decline to prosecute minor offenses where policing choices cause racial disparities or lead to overburdened courts that can provide neither procedural nor substantive justice. Refusal to prosecute certain classes of minor offenses will reduce racial inequities in the criminal justice system and improve the ability of prosecutors to meet their ethical obligation to provide procedural and substantive justice in the remaining cases.

Keywords: prosecutorial discretion, legal ethics, racial disparities, broken windows, criminal justice, misdemeanors

JEL Classification: K14, K40

Suggested Citation

Howell, Babe, Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System (2014). 27 Georgetown Journal of Legal Ethics 285 (2014), Available at SSRN:

Babe Howell (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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