The Just Prosecutor

Authors

Brandon Hasbrouck, Washington and Lee University School of LawFollow

Document Type

Article

Publication Title

Washington University Law Review

Publication Date

2021

Abstract

As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure--prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure, the prosecutor's duty is to ensure that justice is done. Yet, in exercising their outsized power, some prosecutors have fully embraced a secondary, adversarial role as a partisan advocate at the significant cost of seeking justice.

The necessary reforms of our carceral system must begin with the prosecutor. Our adversarial system of justice so compellingly turns prosecutors away from doing justice to maximizing convictions that it can seem impossible to be both a good person and a good prosecutor. When even progressive prosecutors can be turned into win-seekers rather than neutral agents of justice, Blackness is punished. Black people are disproportionally arrested, charged, convicted, and sentenced for longer than the population overall. Rejecting adversarialism is therefore essential, but that alone will not be enough--in order to act in the interest of justice, a prosecutor must consciously replace adversarialism as a guiding ideology.

This Article imagines prosecutors as solely just actors in our criminal legal system. The prosecutor's function as a minister of justice remains underexamined and undertheorized. So, what is a just prosecutor? My thesis is that abolition constitutionalism, critical originalism, and the liberation justice of hip-hop and the Movement for Black Lives can be used in constructing a prosecutor that improves the ideology and administration of justice in the United States. Abolition constitutionalism demands that prosecutors advance civil liberties, equal protection, and due process rights for criminal defendants throughout the entire criminal process. For example, prosecutors should provide Brady exculpatory material to defendants prior to entering any plea agreements and join a prisoner's postconviction motion when they are actually innocent of the underlying crime. Critical originalism confirms that the criminalization of the use of drugs was driven by racial considerations and requires that prosecutors leverage statutes, such as the Speedy Trial Act, to create robust diversion programs for non-violent drug offenders. And prosecutors that understand liberation justice appreciate that our system was designed to target and imprison Black and Brown people. Because of this profound unfairness, prosecutors must become movement lawyers who work to dismantle white supremacy through decriminalization of drug offenses, prosecutorial nullification, expungement motions, and the elimination of cash bail. There is much common ground in these seemingly disparate threads of theory, where justice is painted--not in definitional words, but in concrete actions--for prosecutors.

Recommended Citation

Brandon Hasbrouck, The Just Prosecutor, 99 Wash. U. L. Rev. 627 (2021).