Arbitrary Justice: The Power of the American Prosecutor

by Angela J. Davis

Inscribed on the walls of the United States Department of Justice are the lofty words: "The United States wins its point whenever justice is done its citizens in the courts." Yet what happens when prosecutors, the most powerful officials in the criminal justice system, seek convictions instead of justice? Why are cases involving educated, well-to-do victims often prosecuted more vigorously than those involving poor, uneducated victims? Why do wealthy defendants frequently enjoy more lenient plea bargains than the disadvantaged?

In this timely work, Angela J. Davis examines the expanding power of prosecutors, from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases to the increasing politicization of the office. Drawing on her dozen years of experience as a public defender, Davis demonstrates how the everyday, legal exercise of prosecutorial discretion is responsible for tremendous inequities in criminal justice.

Davis uses powerful stories of individuals caught in the system to illustrate how the day-to-day practices and decisions of well-meaning prosecutors produce unfair and unequal treatment of both defendants and victims, often along race and class lines. These disparities are particularly evident in prosecutors' charging and plea-bargaining decisions and in their muddy relationships with victims.

Prosecutors not only hold vast power, Davis argues, but they are also under-regulated and lack accountability. The current standards of practice for prosecutors are unenforceable, while the mechanisms that purport to hold prosecutors accountable are weak and ineffectual. Not only does lack of oversight result in injustices, it may even foster a climate tolerant of unfair practices and in some cases, misconduct.

Offering a sensible agenda for comprehensive review and reform, Arbitrary Justice challenges the legal community and concerned citizens to pursue and enact meaningful standards of con

Genres: Law, Nonfiction, Politics, Social Justice, Sociology

264 pages, Hardcover

First published March 26, 2007

About the author

Angela J. Davis, professor of law at AU's Washington College of Law, is an expert in criminal law and procedure with a specific focus on prosecutorial power and racism in the criminal justice system. Davis previously served as director of the D.C. Public Defender Service, where she began as a staff attorney representing indigent juveniles and adults. She also served as executive director of the National Rainbow Coalition and is a former law clerk of the Honorable Theodore R. Newman, the former Chief Judge of the D.C. Court of Appeals. Davis is the author of Arbitrary Justice: The Power of the American Prosecutor (Oxford University Press 2007). She is also the co-editor of Criminal Law (Sage Publications 2015) (with Professor Katheryn Russell-Brown), Trial Stories (Foundation Press 2007) (with Professor Michael E. Tigar) and the 6th edition of Basic Criminal Procedure (Thomson West 2012) (with Professors Stephen Saltzburg and Daniel Capra). Davis' other scholarly publications include articles in the Michigan, Iowa, Fordham, and Hofstra Law Reviews. Davis won the Pauline Ruyle Moore award for Arbitrary Justice: The Power of the American Prosecutor in 2009 and for her Fordham Law Review article, Prosecution and Race: The Power and Privilege of Discretion in 2000. Davis was awarded a Soros Senior Justice Fellowship in 2003. She won the American University Scholar/Teacher of the Year Award in 2015, the American University Faculty Award for Outstanding Scholarship, Research, Creative Activity, and Other Professional Contributions in 2009 and the American University Faculty Award for Outstanding Teaching in a Full-Time Appointment in 2002.

Reviews

[Kirby · Rating 3 out of 5]

I'm so frustrated by what Davis reveals that I want to write this review in all caps to get people to pay attention. Prosecutors, at all levels, have unchecked power with no transparency or accountability for the decisions they make and there is virtually nothing to be done about it. They can "overcharge" (tack on charges that they know they cannot prove beyond a reasonable doubt) a criminal defendant, in order to better position themselves during plea bargaining and trial. They can impose expiration dates on plea offers that make it impossible for defense attorneys to effectively counsel their clients. They can withhold evidence that would help defendants make better decisions about pleas. It's shameful.

This will continue to be the case for several reasons. Very few are inclined to lobby for the rights of criminal defendants in general. So frightened by the media and persistent portrayals of criminals as poor and of color, most people will trade prosecutorial misconduct for "keeping the streets safe." Criminal defense attorneys who are repeat players with prosecutors can't afford to be the squeaky wheels. Prosecutors are not inclined to give up power (who is?), think self-regulation is sufficient, and avoid understanding the collective injustice of how their decisions are made.

Davis recommends that we get bar associations to take the disciplinary process for attorney misconduct seriously, better inform the public, mandate racial disparity studies, and create prosecution review boards. The last option seems the most practical, but I'm not holding by breath for this or any other reform. As long as people continue to believe in prosecutors as fearless protectors of the people, as opposed to people who are human, fallible, and subject to the same conscious and unconscious prejudices that undergird society, little will change. For now, I'll watch less Law & Order and donate more to Legal Aid.

[Andrew · Rating 4 out of 5]

I would personally give this book 3 stars but have given it 4 stars because of the context in which it was first written and published. Any book about criminal justice reform is usually overshadowed by Michelle Alexander's "The New Jim Crow," which was released only a few years after "Arbitrary Justice." This is the case here, as A.J. Davis' conclusions about the criminal justice seem tepid in light of Alexander's tour-de-force analysis. For example, while Davis only acknowledges the reality of racial inequity as a result of the arbitrary exercise of prosecutorial discretion, Alexander tells us that the criminal justice system has worked to create a racial undercaste in the USA. Part of this discrepancy is that Davis is working with a much narrower focus, sure, and one can forgive Davis since she wrote "Arbitrary Justice" before "New Jim Crow" and in a time that prosecutors were receiving little-to-no attention or criticism. But "Arbitrary Justice" also comes across redundant despite its brevity, with most sections leading to the same point that prosecutorial discretion is applied arbitrarily. Nonetheless, Davis does a great job of illuminating the court process and how prosecutor power has only become more concentrated and unchecked. Where she excels is in drawing in anecdotes to illustrate her points, and the anecdotes are quite powerful. I would recommend this book for those folks who want a more in-depth, step-by-step look at the court process and how criminal prosecutions work.

Also I've seen a lot of people confuse this author with the activist Angela Davis. PSA This book's author - Angela J. Davis - IS NOT THE SAME PERSON AS Angela Davis.

[Ro Hill · Rating 4 out of 5]

Read this for my law and society class, and I was pleasantly surprised by the readability. As someone who doesn't have much knowledge of the court system, Davis used real life examples to help deepend my understanding. Con though, she becomes repetitive over certain concepts and perhaps provides too many examples that may overwhelm the reader.

[Cody · Rating 5 out of 5]

This book was an outstanding explanation of the immense discretion held by prosecutors. It’s not something the average person (myself included) knows much about, which is exactly part of the problem- in theory we vote our cruel or unfair prosecutors, but that is a totally ineffective check on their power. Mandatory minimums, the power and discretion of charging decisions and plea bargains, and the fact that so much takes place behind closed doors and so few people actually go to trial—- prosecutors are perhaps the most powerful and arbitrary dealers of justice in the USA. A necessary and depressing read! She does offer suggestions for reform.

One more note: it was almost completely readable to a non-expert, with good explanations and examples to illustrate laws and protocols.

[Helen · Rating 4 out of 5]

The author does an excellent job of showing in laymen terms the power of Prosecutors in the US and how this can affect the incarceration rate. It is an eye-opener and details how Prosecutors are rarely disciplined or monitored! She explains how Prosecutors produce unjust results in many cases.

[Julio Pino · Rating 5 out of 5]

"If you want justice, go to a brothel. If you want to get fucked, go to court".---Richard Gere, PRIMAL FEAR

Forget LAW & ORDER. Forget John Grisham. Jury trials in America have gone the way of the VHS and wedding night virgins. Seventy-five percent of all state trials end in conviction. Ninety-five percent of federal trials end in conviction. (Ask Martha Stewart or Elizabeth Holmes, who both spent tens of millions of dollars just to get themselves convicted.) In fact, you stand a better chance of being acquitted in a court martial than in a civilian trial. This means that not only the jury but the judge and the public or private defendant have become largely irrelevant in American judicial life. The prosecutor is the only figure that really counts in criminal cases. Angela Davis, former political prisoner and one of the few people to ever beat a federal court rap, back in 1971, herewith explains why this has happened and how it is dangerous to democracy. First we have the usual suspects. Starting in the late Sixties tougher state and federal drug laws ensured that the vast majority of court cases involved the poor and people of color who could not afford to go to trial. (And, if you think a public defendant is going to save your hind quarters you belong in an asylum, not jail.) Second, mandatory minimum sentencing took away the judge's prerogative to deal out punishment with complete independence. Last, and inevitably, most legal cases are plea-bargained, some 97% of federal crimes, meaning you, the defendant either take the first deal the prosecutor offers or face trial and receive the maximum sentence. Angela (yes, I've met her at my alma mater and her ex-employer, UCLA) offers no panacea but only a package of reforms that would make prosecutors more responsible directly to the public, not the government. I pray she is right, but note that criminal justice reform, a pledge made by all the Democrats who ran in the 2020 primaries, has been ghosted.

[Adam · Rating 4 out of 5]

Super interesting read. Learned lots of new things (some frightening, some enlightening). What I admired most about Davis's work was her willingness to acknowledge and confront the complexity of the issue (of prosecutorial accountability and misconduct) while continuing to advocate for oversight and solutions to problems. There ARE some sections that read much more technical than I would have expected for a book marketed for the general public -- though I think the general public is more than capable of understanding all parts of this work. Her work certainly inspired me to think a bit differently about how I understand and vote for attorney general and publicly elected prosecutors.

[JohnP · Rating 5 out of 5]

While this book was written a few years ago, it provides an excellent description of the breadth of power currently held by state and federal prosecutors, and sobering examples of that power being misused. The sections on prosecutorial misconduct, and the insufficient remedies currently available to combat it, provide a call to action that only grows more urgent with time.

[Dave Mac · Rating 3 out of 5]

Informative, but somewhat repetitive. Definitely a book that should be read by those who do not understand the prosecutorial function in the US justice system, particularly the broad discretionary power that prosecutors have to shape the outcome of criminal cases.

[Sam · Rating 3 out of 5]

Oof.

[B]

While a hard read (in more than one way) I learned quite a bit from Davis' personal experience and exhaustive research.

[Sam Newton · Rating 4 out of 5]

Fantastic critique of the power of American prosecutors and how, in their zeal, they often abuse their power. I did not, however, think that Davis gave concrete solutions to this very real problem. William Stuntz has proposed better solutions in his The Collapse of American Criminal Justice.

[Alisa · Rating 4 out of 5]

if you've taken criminal law, then you probably know most if not all of this book. but it's extremely well compiled! if you haven't taken criminal law, this could be mind-blowing.

[Noah · Rating 5 out of 5]

Every American should read this book to understand the current situation in our country, especially with regards to the Brady rule and the role bar associations play in letting prosecutors off.