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Abstract

Excerpted from: Renée McDonald Hutchins, Policing the Prosecutor: Race, the Fourth Amendment, and the Prosecution of Criminal Case, 33-FALL Criminal Justice 14 (Fall, 2018) (Inline Citations Omitted) (Full Document)

 


ReneeMcDonaldHutchinsTwo events have collided to give prosecutors enormous power. The first is an inveterate retreat from robust enforcement of police conduct under the Fourth Amendment. The second is a now-dominant use of negotiated pleas to resolve criminal cases. The combination has meant a significant increase in the already substantial power of prosecutors--power that is being deployed in a way that disadvantages black and brown defendants. Put somewhat more directly, a straight line can be drawn from the expanded power of the police over black and brown bodies in the streets to the expanded power of prosecutors over black and brown lives in the courtroom.

As this article explores, while the Fourth Amendment is commonly criticized for the discretion it affords police officers, an overlooked result of the amendment's lax regulation of the police is the enhanced power it affords prosecutors. Though for a time a warrant was the notional measure of reasonableness, over the last century the Court has crafted several exceptions to that measure to give the police greater leeway during on-the-street encounters. The Court has concurrently retreated from robust application of the exclusionary rule to remedy constitutional violations. These shifts have meant far more predictable wins for the prosecution at the suppression hearing stage. And suppression hearing wins matter.

Though jury trials are popularly touted as indispensable, in reality the American criminal justice system is a system of negotiated pleas. A finding of guilt is arrived at through concession and compromise, not adversarial wrangling for truth. In this system, the predictability of suppression hearing wins strengthens the prosecution's already strong hand. And while studies suggest that people of color may be somewhat less likely to plead, when they do they receive a worse deal (on average) than their similarly situated white counterparts. Much ink has been devoted to the Fourth Amendment's failure to police the police. The amendment is failing too, though, at policing the prosecution.