Abstract

A comparison of the United States and South Africa is instructive in understanding how complicit behavior perpetuates institutional racism. In both the United States and South Africa, police and prosecutors have often faced accusations of racially biased decisionmaking. Racial bias is not a new concept; it is derived from political systems that separated people based on race. In the United States, the system is commonly known as segregation; in South Africa, the system is known as apartheid. Significantly, in both countries, the racial separation was institutionalized and enforced by governmental agents, particularly police and prosecutors.

However, there are notable differences between the two countries’ accountability systems for policing that reveal a deeper understanding of the causes of institutional racism than would be possible when examining each country separately. One lesson revealed is the importance of understanding the impact of race through the intersectional lens of each country’s patriarchal system and culture. Additionally, the differences in the countries’ structures and functions of accountability systems for policing are instructive because of the similarities in the countries’ histories.

This Article is a culmination of research and interviews personally conducted by the author in South Africa. Many of the understandings regarding the structures and function of policing accountability in South Africa are directly based off the interviews conducted. The Article will begin with an overview of political inequality and three methods that can be used to understand a citizen’s ability to exercise political power. Section II discusses the structural barriers created by using criminal prosecutions as a solution for police violence. Section III examines the barriers to civil lawsuits as a means for accountability against police violence. Section IV analyzes the policing culture of impunity, and how it has acted as a barrier to self-regulation and internal accountability. Finally, Section V proposes lessons on how to improve accountability for police violence in the future.

Abstract

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts. As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.” This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process. Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good. This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up. In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors. As such, this note explores the scope of prosecutorial discretion in plea bargaining. First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law. This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.