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: Suggested Citation