Judging the Prosecution: Why Abolishing Peremptory Challenges Limits the Dangers of Prosecutorial Discretion

Harvard Law Review, May 2006 | Go to article overview

Judging the Prosecution: Why Abolishing Peremptory Challenges Limits the Dangers of Prosecutorial Discretion


The legitimacy of a criminal justice system is inextricably tied to its role in the prevailing order of race relations. (1) Measured by this yardstick, the American criminal justice system is in crisis. This crisis is one not of administration but of the integrity of a system that continues to systematically exclude racial minorities from its decisionmaking processes while disproportionately imposing its burdens upon them. (2) Although blacks and Hispanics each made up only 12% of the national population in 2000, (3) they constituted over half of all state and federal prisoners. (4) As of 2004, the incarceration rates for black and Hispanic males were seven and three times the rate for white males, respectively. (5) In addition, African Americans on the whole "serve longer sentences, have higher arrest and conviction rates, face higher bail amounts, and are more often the victims of police use of deadly force than white[s]." (6)

Although differing crime rates among blacks and whites partially explain these numbers, a more robust explanation must acknowledge the role that racial discrimination plays in the enforcement of criminal law. (7) There are two competing views of the American criminal justice system: one casts the system as meting out punishment fairly and legitimately, while the other casts it in precisely the opposite light. It should come as no surprise that the view that a citizen ultimately adopts often has everything to do with race. (8)

The existence of racial bias in the criminal justice system has been explained by reference to a variety of practices. (9) Yet few would dispute that the manner in which prosecutors exercise discretion is one of the most important determinants of criminal justice outcomes. (10) Nearly forty years ago, Professor Kenneth Culp Davis noted that, of all the "excessive and uncontrolled discretionary powers" in the American legal system, "the one that stands out above all others is the power to prosecute or not to prosecute." (11) Since that time, the force of Professor Davis's observation has only grown. Recent increases in the rate of guilty pleas, the prevalence of determinate sentencing schemes, and the frequency with which civil penalties accompany criminal punishment--each of which increases the impact of prosecutorial decisionmaking--attest to this. Ultimately, restoring the legitimacy of the justice system depends, in large part, on society's ability to check the nearly unfettered prosecutorial discretion that currently exists.

Although scholars have advanced numerous proposals in response to the need for stronger checks on prosecutorial discretion, (12) courts have been far slower to respond. Though they have applied equal protection doctrine to the decision to prosecute, the rules proscribing discovery in such cases have practically gutted this application of any meaningful effect. Whatever the merits of the courts' jurisprudence, this Note argues that the problems posed by unfettered prosecutorial discretion may best be addressed not by direct judicial regulation, but by remedying another problem that has long plagued the criminal justice system: racial discrimination in jury selection.

Although Batson v. Kentucky (13) prohibits parties from striking jurors on the basis of suspect criteria such as race, courts have been unable to ensure compliance with this mandate for a variety of reasons. Given the courts' inability to enforce Batson in any meaningful way, numerous commentators have called for the abolition of peremptory challenges altogether. These calls have been justified on many grounds, but none presents what is arguably the most powerful justification of all: beyond protecting individual rights and improving perceived and actual case outcomes, eliminating peremptory challenges has the potential to function as a much-needed constraint on prosecutorial discretion.

I. PROSECUTORIAL DISCRETION: THE NEED FOR MEANINGFUL LIMITS

Prosecutors have long enjoyed essentially unchecked discretion in three primary areas: investigating, charging, and plea bargaining. …

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