Excerpted From: I. India Thusi, The Pathological Whiteness of Prosecution, 110 California Law Review 795 (June, 2022) (350 Footnotes) (Full Document)


IIndiaThusiThese are some of the messages that have been sent to Black women prosecutors who claim to be embracing a less punitive approach to prosecution. I was unable to locate similarly offensive messages that were sent to White male prosecutors. These messages suggest that not all prosecutors are all-powerful, illustrating a larger problem within criminal legal theorizing and scholarship.

Criminal law scholarship suffers from a Whiteness problem. Criminal law scholars appear to be increasingly concerned with the racial disparities within the criminal legal system. There are more articles that explicitly discuss racial bias and discrimination than in the past. Scholars are concerned with the punitiveness of the system, which disproportionately falls on racially marginalized communities. They frequently mention the role of race and bias in the criminal system and in mass incarceration, the lexical descendent of overcriminalization. Some observers might say that to a certain degree, everyone is now a race scholar. Or, at the very least, many who write about criminal law are willing to at least mention that there is a racial component to its administration. The focus of the scholarship tends to be on the marginalized community and the various discriminatory outcomes they experience as a result of the system.

However, criminal law scholarship is often missing a consideration of the roles of Whiteness and White supremacy as the underlying logics and norms that drive much of the bias in the system. Scholars equate "race consciousness with consciousness of [B]lackness," but their failure to contend with the role of Whiteness in facilitating mass criminalization and incarceration provides a "building block in the edifice of [W]hite supremacy." It is as if "White" is not a racial classification. Race has instead become about the marginal status of Black and Brown people rather than the invisible power and punitiveness that Whiteness facilitates.

This Article examines the ways that Whiteness has become the underlying norm within the criminal legal system, including within the discourse about criminal law and mass incarceration. It conducts this examination by focusing on the burgeoning area of criminal law scholarship that examines the role of the prosecutor, particularly the progressive prosecutor. The scholarship on prosecutors, progressive or otherwise, rarely grapples with the role of Whiteness in shaping what it means to be a prosecutor. Attention to Whiteness reveals that it is a norm that both shapes the experiences of prosecutors and facilitates a punitiveness that maintains White supremacy.

Professor William Stuntz famously argued that the perversions in the criminal system can be understood through an examination of the role of the prosecutor in the criminal legal system. He argued that prosecutors are quasi - legislators who legislate by selecting the charges for defendants and setting the baseline for criminal convictions. According to Stuntz, prosecutors hold much of the power within the criminal legal system and contribute to a pathological politics that rewards participants for meting out more punishment even when more punishment is undesirable. He proclaimed, "American prosecutors, by and large, see themselves as czars."

Of late, there has been a growing trend of progressive prosecutors who aim to use the power of the prosecutor's office to advance a new vision of prosecutors. Scholars have questioned the intentions of these prosecutors as well as their ability to be progressive while prosecuting.

Missing from these conversations is an in-depth analysis of Whiteness and patriarchy as underlying features of the prosecutor's office. Criminal law scholarship rarely considers how being non-White or non-male, or even worse both, fundamentally alters the functions of the prosecutor's office. This Article brings a subtle shift in perspective by centering the racial privilege of most prosecutors through an analysis of the barriers that non-White prosecutors encounter. It frustrates the Stuntzian conception of the almighty prosecutor by demonstrating that that conception is bounded by the Whiteness of the prototypical prosecutor. This Article argues that the recent rise in "progressive prosecutors" illustrates the limitations of the Stuntzian conception of the all-powerful prosecutor.

First, this Article demonstrates that the power of prosecutors is bounded by a presumption of punitiveness. This Article relies upon data from a social listening algorithm that examined the tone of the conversation about progressive prosecutors online (see Section II.C infra). These data include thousands of tweets, blog entries, Facebook posts, and Instagram posts that mention progressive prosecution or the names of eight prominent, self-identified progressive or reform-minded prosecutors who are the subject of this study. In general, progressive prosecutors appear to experience a hostile media environment based upon concerns that they are not sufficiently punitive or concerned with public safety. In addition, several progressive prosecutors have experienced pushback from other powerful actors in the criminal legal system, including the police, judges, and other prosecutors.

These data contradict the assumption that it is enough to replace the person in the prosecutor's seat to achieve meaningful reform in the criminal legal system. Even prosecutors appear to be bounded by the system's inherent punitiveness. When prosecutors exercise their discretion to adopt a new vision of prosecution, other criminal legal actors can intervene to prevent the implementation of progressive policies. This core contribution to the literature highlights the limitations of reforming the criminal legal system by reforming the prosecutor's office, contesting Stuntz's declaration that prosecutors are powerful czars. Prosecutors appear to be czars, so long as they are punitive.

Furthermore, when progressive prosecutors are non-White and non-male, they appear to experience excessively hostile resistance. The online narratives about these prosecutors, particularly Black women prosecutors, are harsher and more personal than those about their White male counterparts, as this analysis shows. Stuntz's account of the prosecutor does not consider the experience of non-White and non-male prosecutors, nor does it contend with the Whiteness of most prosecutors. This Article argues that the struggles of Black women prosecutors demonstrate the limitations of the conception of the prosecutor as almighty and all-powerful. The findings from the social listening algorithm illustrate the importance of a decarceral agenda that is not overly reliant on changing the occupant of the prosecutor's seat in a given jurisdiction. Judges, police officers, and nearby prosecutors may all conspire to obstruct the policies of progressive prosecutors. More critically, these findings reveal how the very foundation of the criminal legal system relies upon punitiveness and is resistant to reform. The system appears to be rotten, or at least punitive, to the core, suggesting that efforts to reform it are futile.

Second, the most troubling part of the data analysis involves the resistance that progressive prosecutors encounter outside of the criminal legal system from liberal commentators and groups. There appears to be a racialized and sexualized experience of progressive prosecution, wherein White male prosecutors are lauded as progressive heroes while Black women prosecutors are critiqued for not being progressive enough. For example, the positive online commentary about progressive prosecution appears to be primarily centered around Larry Krasner and Chesa Boudin--White men--with some progressives labeling them as the ideal progressive prosecutors. Meanwhile, Black women progressive prosecutors like Kimberly Foxx, Kimberly Gardner, and Marilyn Mosby were elected before Krasner and represent similarly important American cities (Chicago, St. Louis, and Baltimore, respectively), but rarely enjoy the laurels of the White liberal media. The ways in which the experience of prosecution is bounded by the racial and sexual identity of the prosecutor are rarely explored and examined. This Article argues that the Whiteness of criminal law discourse is made transparent through the experiences of Black women prosecutors.

This Article engages in an intersectional examination of the role of prosecutors and reveals that race and gender constrain prosecutors' ability to be truly progressive. Black women prosecutors have encountered unparalleled resistance to their progressive policies, despite the quasi-legislative role Stuntz claimed prosecutors to possess. This resistance suggests that the power of the prosecutor is not easily separated from the maleness and Whiteness of those who have typically filled the prosecutorial role.

This feature of the embodiment of prosecution is often ignored, as scholars concerned with the racial effects of prosecution focus on the racial characteristics of the defendants but ignore the racial privilege of the prosecutor. Perhaps prosecutors are so powerful both because they are so punitive and because they are so White. A 2019 study found that 95 percent of elected prosecutors are White, and 73 percent are White men. When scholars fail to examine the role of Whiteness in facilitating punitiveness, the prosecution becomes a nonracial, all-powerful figure in the criminal legal system--a raceless, genderless czansm.

Furthermore, this Article invites liberal commentators hoping to address the excess of incarceration to critically examine the ease with which they critique Black women and valorize White men. It invites liberals to untangle the layers of bias that pervade liberal thought.

Black women prosecutors who have explicitly adopted a progressive agenda have been harassed by the police, undermined by their staff, and attacked in the media as unconcerned with public safety. Police officers raided the offices of the Circuit Attorney in St. Louis, Kimberly Gardner, in an act of hostility that is unfathomable under Stuntz's account of the prosecutor. At the same time, these prosecutors are expected to deliver more for their communities and are scrutinized as not being progressive enough by White liberals, who maintain a very superficial racial analysis. Critics examine the records of Black women prosecutors the same as any other prosecutor, as if they are not constrained by racial and gender subordination.

These commentators rarely consider progressive prosecutors' genuine interest in harm reduction because they view prosecutors as the essential enemies of the decarceration project. This Article urges White liberals to take their critiques inward and to seriously contend with the role of Whiteness in maintaining the carceral nature of prosecution.

Whiteness as a pervasive norm in the criminal legal system positions non-punitive Black women prosecutors as threats to the system. First, these women counter the assumption that the State must be represented by a White man, as it traditionally has been. Their very existence in the office appears to be disorientating, which might explain why conservative news outlets have targeted them and launched media campaigns that focus on Black women progressive prosecutors. In addition, these women contest the traditional role of the prosecutor as chiefly in support of punishment for daring to consider non-punitive alternatives for those presumed to be criminals, many of whom are Black, Indigenous, Brown, or people of color. Consequently, the way in which these Black women perform their progressive agenda appears different from that of prosecutors who do not have to contend with the uneasiness that comes with being women in positions of power while transforming a punitive system.

Part I of this Article discusses the criminal law scholarship on prosecution and the underlying assumptions that shape the dominant discourse about prosecutors and their power. Part II introduces Critical White Studies as a theoretical framework for understanding the data and explains the methodology for this study. It demonstrates that the Whiteness of prosecutors enables them to engage in punitiveness. Part III adopts an intersectional analysis to examine the data about the online commentary on progressive prosecution. The data frustrate the Stuntzian conception of the almighty prosecutor and illustrate that progressive prosecutors have encountered substantial resistance to their decarceral agendas. The data illustrate the ways in which Whiteness, which is underexamined in criminal law scholarship, has been a pervasive presence that underlies the discussion about prosecutors.

This Article is not intended to suggest that progressive prosecution is a desirable approach for alleviating mass incarceration or that prosecution is the most effective strategy for addressing community harms. Rather, this Article makes a critical intervention into an active debate that evaluates all prosecutors by the same terms and analyzes the ways in which White liberals have become all too comfortable critiquing Black women without any engagement with Whiteness, intersectionality, or critical race theory. This Article argues that scholars and activists should critically engage with the role Whiteness plays in empowering prosecutors to be punitive and acknowledge the limitations of the Stuntzian conception of the prosecutor as almighty. Such engagement would reveal that the racial embodiment of prosecutors is often as important as their political embodiment as progressive or punitive.

[. . .]

The politics of prosecution is pathological in its Whiteness. The focus in criminal law discourse tends to be on the race of the defendants and those victimized by mass incarceration rather than the race of the system actors. Yet the most harmful criminal legal system actors are overwhelmingly White, and it is worth considering what role their Whiteness plays in facilitating criminal punitiveness. Whiteness is pervasive in the criminal legal system and may be facilitating punitiveness by allowing White actors to benefit from favorable implicit biases that carry a presumption of competence. It may provide a shield from meaningful accountability and may help explain the lack of accountability against some system actors. Focusing on Whiteness also shifts the lens away from the pathologies of the marginalized classes to those of the privileged.

The inability of racialized and sexualized bodies to automatically tap into the full power of the prosecutor indicates that a prosecutor's political embodiment is confined by intersectional forms of subordination connected to patriarchy and racism. Only certain bodies fully benefit from the power of the prosecutor's office. Others are constrained by systemic marginalization. Critical White Studies provides a lens for understanding the challenges that Black women prosecutors have experienced. Ignoring the Whiteness of prosecution makes their experiences surprising. However, examining how Whiteness has empowered prosecution suggests that the power of prosecution is also about the exercise of White privilege. Prosecutors have been able to effectively elude meaningful oversight and accountability because they also have historically benefited from their Whiteness and punitiveness.

Accordingly, scholars should consider both the Blackness of the defendants as well as the Whiteness of the prosecutors when evaluating the politics of prosecution. This approach would be fruitful when examining various aspects of the criminal legal system beyond prosecution. This approach does not suggest that there is an essentialized notion of how the prosecutor or defendant will behave based on race. Rather, it encapsulates the boundaries of beingness based on essential features without dictating the full terms of beingness. In other words, there may be punitive Black women prosecutors who experience none of the challenges of the featured prosecutors.

White progressive prosecutors also experience pushback, suggesting that the response reflects the institutional punitiveness of prosecution no matter who embodies the office. Chesa Boudin enjoyed support from many progressives, but a developing narrative about an increase of crime, conservative news coverage of progressive prosecution as contributing to crime, and business stakeholders who generally benefit from aggressive law enforcement practices all contributed to his successful recall from office.

However, the severity and personal nature of the response against Black women prosecutors in particular suggest that both patriarchy and racism are constraints on the power of prosecutors. This Article does not aim to support the legitimacy of prosecution as a mode for community protection. As Professor Bennett Capers convincingly argued, policymakers should shift power away from prosecutors. Rather, this Article aims to expose how Whiteness and White supremacy are pervasive, but underdiscussed, features of the criminal legal system. As Baltimore State's Attorney Marilyn Mosby noted, "The disrespect would look different if I looked different. It's extremely personal. The first thing they come at when you're a [B]lack woman is your competency." This observation is reflected in the commentary by both progressives and conservatives. The comfort in critiquing Black women prosecutors while ignoring the privileges of Whiteness reflects a pervasive erasure of racial privilege that is all too common even within liberal and progressive circles.

Moreover, the prosecutors in this Article illustrate that the identity of the person embodying the role of prosecutor is significant, but not in the ways that scholars and activists typically presume. There is no singular almighty prosecutor. Many assume that getting a genuinely progressive body in the prosecutor position is enough to make prosecution more progressive. The question then becomes about assessing the progressive chops of the prosecutor and examining whether they are progressive enough to fulfill their campaign promises. However, this Article illustrates how the progressiveness of prosecution is constrained by an expectation of punitiveness. When non-White, non-carceral prosecutors embody the prosecutor's office, they do not automatically embody an all-powerful position, even though prosecutors are afforded substantial discretion within the criminal legal system. Rather, their exercises of discretion are resisted. This resistance illustrates how not all prosecutors are almighty czars, nor are they almighty chiefs or obas.