I Think We Have An Explanation

As a quick follow-up to Rob’s post below, I think Publius adds a critical point: the odds of a similarly draconian sentence if the race of the victim and perpetrator were reversed are extremely low. I particularly recommend this follow-up post, about the Warren Court and race. As Publius notes, a lot of what seems problematic about the craft of some major Warren Court criminal procedure opinions is that many of these were largely race cases–cases largely about practices used against blacks in the apartheid South–although for conventional reasons judges didn’t want to talk about them that way:

Of course, I can’t say what motivated the prosecutor here. But it is strange that the most egregious prosecutions under this Georgia law that bubble up to the national consciousness (including Marcus Dixon) involve young black men and white prosecutors. But regardless of the motivation, it is a textbook example of an abuse of prosecutorial discretion. (As explained in the article, Wilson had no prior problems with the police).

And that brings me to a larger point. The criminal justice system in America depends heavily upon prosecutorial and police discretion. Both prosecutors and police officers have a number of tools and laws at their disposal, and at some point we just have to trust that they won’t abuse those powers. (That’s why you should be nice to cops when they pull you over — they can always make things worse). The point is that there is a very wide range of actions that fall into the “wrong, but legal” category, as the Wilson prosecution clearly shows.

The criminal justice system’s reliance on discretion explains the problem that civil rights activists faced in the Warren Court-era South. Quite simply, Southern judges, prosecutors, and police officers could not be trusted to exercise proper discretion on racial matters. Their abuses, however, were impossible to address because existing constitutional doctrine (e.g., respect for state criminal court decisions) prevented anyone from doing anything about it. Again, “wrong, but legal.”

So, in the face this outrageousness, the Warren Court stepped in and started making new law. In fact, one way to understand the Warren Court’s decisions is that they are a collective attempt to impose bright-line rules upon Southern law enforcement officials. Specifically, the Warren Court sought to limit police and prosecutorial discretion in the South out of racial concerns and distrust for law enforcement officials. (As I’ve explained in prior writings, Scalia’s formalism and bright-line rules are also motivated by distrust, but of hippy district court judges rather than 1950s Southern state troopers.)

I agree that it’s time to stop hand-wringing about the Warren Court, and will only add that the purportedly high level of legal craftsmanship shown by the conservatives under the leadership of William “Don’t Worry About the Reasoning” Rehnquist is grossly overrated. (There’s nothing about bright-line rules that ensures legally coherent derivation of those principles; Scalia’s clear rules about affirmative action, for example, are indefensible given his alleged theoretical commitments.) Hopefully more about this later.

UPDATE: Several commenters point out that, contrary to my implication, the victim is also black (although the prosecutor is white and the man being incarcerated is black.)