Tuesday, March 17, 2009
Tamara F. Lawson, a professor at St. Thomas University School of Law (Florida), has posted an interesting article draft to SSRN, "'Whites Only Tree,' Hanging Nooses, No Crime? Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America,"slated for publication in the University of Maryland Law Journal of Race, Religion, Gender & Class. Here is the abstract:
News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent of an older and uglier part of American history. A hanging noose is a universal symbol of racist threats of violence. District Attorney Reed Walter's proclamation that this type of conduct was not criminal sent a message of condoning racial intimidation and sparked a wave of copy-cat offenses across the country. This type of prosecutorial indifference toward hate crime negatively frames societal norms of acceptable conduct. Law enforcement's failure to condemn racially motivated criminal also encourages future violence and vigilantism.
This review addresses the prosecutorial veto's negative ripple-effect in hate crime cases. It suggests that unilateral prosecutorial discretion in hate crimes should be limited. Since hate crimes create an enormous impact upon the community as a whole, well-beyond any one individual victim, the community should be given a formal role with regard to charging decisions for hate crimes. This article suggests two ways the legislature can statutorily incorporate community input into the prosecutorial decision-making process: 1) mandating grand jury participation, or 2) authorizing a community enforcement task force for hate crimes. Additionally, this article advocates a third alternative of allowing the use of private prosecutors to pursue hate crime violators when the public prosecutor is unwilling or unable.