Volume 73, Issue 5, Fall 2021

Volume 73 | Fall 2021 | Issue 5




Lauren Cohen

On May 25, 2020, as the world was caught in the grip of the COVID-19 pandemic, 46-year-old George Perry Floyd, Jr., a former high school and college football and basketball star; hip-hop artist; and beloved son, brother, father, grandfather, and friend, was murdered by police in Minneapolis, Minnesota. In the process of arresting Floyd for allegedly passing a $20 counterfeit bill, Derek Chauvin, a white police officer, pinned his knee on Floyd’s neck for 9 minutes and 29 seconds as Floyd lay in the street, handcuffed, face down, and gasping for breath. Three other officers also restrained Floyd even as he told them more than 20 times that he could not breathe. As the torture continued, he cried out for his deceased mother and his children. His last words were desperate and horrifyingly prescient: They’ll kill me. They’ll kill me.


Angela J. Davis

The topic of my talk is Prosecutors and Race: Responsibility and Accountability. By the end of the talk, I hope you’ll know why I chose this title. I believe that prosecutors should be held responsible and accountable for the current situation in the criminal legal system—and that is a crisis. I truly believe that we are at a point of crisis in our criminal legal system. We have 2.2 million people in prisons and jails, with 7 million or so people on probation or parole and with extraordinary unwarranted racial disparities at every step of the process. Black and Brown people are more likely than white people to be arrested. Once arrested, they’re more likely to be convicted. Once convicted, they’re more likely to face stiff[er] and long[er] sentences. African American men are six times more likely to be incarcerated than white men and 2.5 times more likely than Latino men. If current trends continue, one in every three Black men today can expect to go to prison in his lifetime, as can one in six Latino men compared to one in seventeen white men. The racial and ethnic disparities among women, although less substantial, are also very prevalent. So, we’re in a state of crisis—not only with regard to mass incarceration, but also with unwarranted racial disparities.


Chesa Boudin

I’m the District Attorney of the City and County of San Francisco and I’m going to be talking about the role that prosecutors play, or can or should play, in driving changes in the criminal legal system, and putting that word “justice” back in the criminal justice system, particularly focusing on issues of race, class, and decarceration. So to do that, I’m going to walk you through some of the things we’ve been able to achieve in my first 14 months in office, a very unpredictable and challenging first year. My colleagues who have been in office longer like to tell me that not every year is like 2020 but I don’t believe them yet; it’s been a tremendously volatile and tumultuous and challenging period to take office for the first time. And despite that, I think we have a lot to be proud of and I want to share with you some of the things we’re proud of and some of the lessons we’ve learned along the way. Hopefully that can reveal insights into the real, extraordinary power and opportunities that prosecutors have to effect change, and drive change.


Cynthia Alkon

Bias, disparate treatment, and racism are embedded into the U.S. criminal legal system. African Americans, Latinx, and other people of color are more likely to be stopped by police, arrested, and serve time in custody after being charged. Overall, the United States incarcerates more people and has a higher rate of incarceration than any other country in the world. On any given day over 2.3 million people are incarcerated in the United States, and over 7 million are under some kind of carceral control including jail, prison, probation, or parole. Racial and ethnic minorities are disproportionately represented in all of these numbers. A key player within the criminal legal system that could dramatically reduce or eliminate these disparities are prosecutors. Prosecutors enjoy extraordinary power and they exercise that power with few constraints. For most defendants the single most important prosecutorial decision, after charging, is the plea offer. Over 90% of all criminal convictions are due to plea bargains. Yet, there are virtually no limitations on prosecutors during the plea bargaining stage and relatively little attention given to how standard plea bargaining practices can exacerbate bias. What happens at the plea bargaining stage, whether a case is dismissed, charged as a misdemeanor, charged as a felony, or charged as a felony with additional enhancements, will change the direction of defendant’s life in far-reaching ways. A criminal conviction could prevent, or make it harder to get, a job. A criminal conviction can result in deportation. A criminal conviction can make it harder, or impossible, to get certain professional licenses. A criminal conviction may make it harder to rent an apartment or live within certain areas. A criminal conviction can make the punishment in any future criminal conviction worse due to enhancements or habitual offender laws. The prosecutor is the key decision maker and, unfortunately, standard prosecutorial practices can exacerbate the biases that are already embedded into the criminal legal system. There are multiple challenges that make it difficult for prosecutors to reduce or eliminate their biases.


Zamir Ben-Dan and Rigodis Appling

There is an abundance of literature on prosecutorial misconduct: the power prosecutors have in the courtroom, the racially discriminatory ways that prosecutors yield that power, the plethora of instances in which they have abused such power, and the gross inadequacies of existing checks on said power. A major reason why prosecutorial misconduct is such a widespread problem is because prosecutors are absolutely immune from civil liability regarding any “quasi-judicial” decisions they make. Yet, while some law review articles have suggested, hinted at, or lightly discussed the need to end absolute immunity, we have found no law review article that has offered a forceful rebuke of both the doctrine and the case that gave rise to it. Our article will offer a full and critical analysis of Imbler v. Pachtman, the Supreme Court decision that created absolute immunity for prosecutors in civil rights lawsuits almost out of whole cloth, and it will explain why absolute immunity for prosecutors in civil rights lawsuits must be abolished if the ends of racial, social and criminal justice are to be realized.


Robert L. Holmes

For decades civil rights activists were motivated by the belief that racism in America was merely “an odious holdover from slavery, a terrible and inexplicable anomaly stuck in the middle of our liberal democratic ethos.” A more recent—and more enlightened—view describes American racism as not simply “an excrescence on a fundamentally healthy liberal democratic body,” but instead “what shapes and energizes the body.” Liberal democracy and racism “are historically, even inherently, reinforcing.” What was once viewed as an anomaly “is an actual symbiosis.” To defend and protect American democracy then requires a defense of American racism. When the civil rights movement appeared to be “overcoming” the symbiosis between liberal democracy and racism, opponents of the civil rights revolution had to devise a new strategy for maintaining the subordinated status of African Americans. That new strategy called for associating race with welfare and race with crime. “Fusing anxiety about crime to anxiety over racial change and riots, civil rights and racial disorder—initially defined as a problem of minority disenfranchisement—were defined as a crime problem, which helped shift debate from social reform to punishment.” What American institutions are in a better position to carry out this new “Jim Crow” caste system than police and prosecutors? To seek ways to upend the status quo of racial injustice in our criminal justice system is to seek ways to attack this frontline defense of that injustice and its goal of maintaining African Americans as a subordinated class of citizens. A likely more effective approach to this challenge than seeking institutional change within the overall prosecutorial system is to find ways to encourage disdain for the status quo among individual actors within the system and to provide those individuals with tested models for making changes to unacceptable cultural norms within the system of which they are a part. I attempt in this Article to do this with a particular emphasis on community-oriented lawyering as a model, recognizing that prosecutors are lawyers.


Fareed Nassor Hayat

The Double Jeopardy Clause of the Fifth Amendment of the United States constitution guarantees that a person cannot be punished twice for the same offense. This protection is meant, at least in part, to prevent the State from getting “two bites at the apple,” or two chances to convict and punish a person for a single act. Yet under complex criminal statutes, a person who commits a single criminal act may be tried for that crime and then tried again for additional crimes – arising out of the exact same offense – based on allegations of committing the crime in furtherance of a criminal enterprise. In addition to increasing the chances of an unjust conviction and unconstitutionally punishing a person twice for the same offense, complex criminal statutes put undue pressure on criminal Defendants to plead guilty, to crimes they may or may not have committed, in order to avoid lifelong sentences. These laws primarily target Black and Brown men and contribute to racialized mass incarceration.

This article highlights gang statutes, a form of complex criminal liability, which punish alleged gang members for a given crime, then further punish those same accused members for committing the same crime in furtherance of a gang. This article identifies three double jeopardy violations, then offers three distinct suggestions for defense attorneys, ethical prosecutors, and judges to right these wrongs. First, gang prosecutions violate classic double jeopardy when predicated on a single, previously adjudicated criminal offense. Second, gang prosecutions violate collateral estoppel where criminal Defendants are found not guilty of a substantive criminal act, yet found guilty of the same act in furtherance of the gang. Third, multiple punishment double jeopardy is violated when Defendants are punished consecutively for a gang statute and conspiracy to violate the same gang statute.


Mary A. Lynch

Building an anti-racist prosecutorial system at the county or city level is a daunting but imperative task made more exigent by current events. This article, and the symposium of which it is a part, occurs at a very challenging moment—in the midst of a global pandemic and after a turbulent election year culminating in the January 6, 2021 violent storming of the United States Capitol by white supremacists and misogynists with the active support of the sitting President. The symposium follows up on the racial justice reckoning which bloomed during the late spring and into the summer of 2020 in the aftermath of the torture and murder of George Floyd during a police “encounter.” Built on decades of work by activists, policymakers, poets, and theorists of color, racial justice issues dominated the attention of the nation, of the white majority, of retraumatized Black Americans, and of all people of color. While dealing with masking, lockdown, social isolation, COVID-19 testing and health scares, many of us also focused on reading works by authors of color, listening more attentively to our countrywomen of color, and deeply examining the racial injustice historically baked into the American criminal justice system. This racial justice blossoming accelerated pre-existing calls to both abolish the police and end mass incarceration.


Madeline B. Gayle

Javier Montejo Alfaro (“Montejo”) is a Peruvian national who lived and worked in the United States. He worked as a security guard at a night club in New Jersey and sent remittances back to Peru to support his wife, Sarita Luisa Mendoza Alvan (“Mendoza”), his daughter, and other relatives. A review of the court record does not indicate that Montejo had a criminal record either in the United States or Peru. Nonetheless, that changed when his wife, Mendoza, accused him of directing her to act as an intermediary in an illegal drug trafficking scheme.

The tale of why Peruvian law enforcement charged Montejo with aggravated illegal drug trafficking and demanded his extradition from New Jersey to Peru is complex. Nevertheless, it begins with the arrest of Jose Ormeño Villanueva (“Ormeño”) at an international airport in Lima, Peru in June 2013 where Peruvian law enforcement detained Ormeño before he boarded a flight headed to New York. A search of Ormeño’s luggage uncovered packages of Peruvian jam, hot sauce, and pisco sour mix that hid almost 2 kilograms of cocaine hydrochloride and 3.4 kilograms of cocaine hydrochloride solution.


Andrew Serulneck

Technological advancement has always been accompanied by new risks of harm, while society mitigates these threats through the establishment of corresponding rights and duties. Examples abound: by exposing larger numbers of workers to more severe injuries, the industrial revolution begat the conceptualization of workplace safety laws that required higher precautions by employers. Wide distribution of goods called for regulations to protect consumers. Enhanced communications technologies of the late 19th and early 20th century caused legal scholars to develop a right to privacy. As we are learning more and more with each passing day, the information age is also posing new threats that will require society to recognize new protections in law.

One such threat is materializing in the form of data collection. Given the enhanced capabilities of firms to collect data, combined with the proliferation and ubiquity of sensors to effectuate this absorption, new threats to informational privacy have arisen which demand new rights to be recognized and new duties imposed. Firms with more information have always been more efficient than firms with less, but the information age has drastically increased the capacity of firms to learn about consumers. As a result, we have become surrounded by devices that record every facet of our lives. Worse yet, because these malfeasants are private enterprises and not governments actors, they cannot be constrained by the Constitution’s usual mechanisms for combatting unwanted intrusion into our lives. In theory, this should be unsettling, but in practice there seems to be an unspoken consensus that unfettered access into the most intimate facets of our lives is a small price to pay for the modern conveniences these firms offer.