The Pathological Whiteness of Prosecution

Criminal law scholarship suffers from a Whiteness problem. While scholars appear to be increasingly concerned with the racial disparities within the criminal legal system, the scholarship’s focus tends to be on the marginalized communities and the various discriminatory outcomes they experience as a result of the system. Scholars frequently mention racial bias in the criminal legal system and mass incarceration, the lexical descendent of overcriminalization. However, the scholarship often fails to consider the roles Whiteness and White supremacy play as the underlying logics and norms driving much of the bias in the system.

This Article examines the ways that Whiteness is the norm within the criminal legal system, including within criminal law commentary. It does so by focusing on the burgeoning area of criminal law discourse that examines the role of the prosecutor. In The Pathological Politics of Criminal Law, Professor William Stuntz famously argued that the criminal legal system’s perversions are understood through an examination of the prosecutor. This Article aims to complicate the Stuntzian conception of the almighty prosecutor. It first shows that the prosecutor’s power is bounded by a presumption of punitiveness, challenging the assumption that it is enough to replace the person in the prosecutor’s seat to meaningfully reform the criminal legal system. Second, it demonstrates that the prosecutor’s power stems in part from the Whiteness and maleness of the prototypical prosecutor, exposing Stuntz’s failure to contend with both the experience of non-White and non-male prosecutors and the Whiteness of most prosecutors.

This power can be witnessed through the racialized and sexualized experience of progressive prosecution, wherein White male prosecutors are lauded as progressive heroes and Black women prosecutors are critiqued for not being progressive enough. This Article analyzes the sentiments of online conversations about eight progressive prosecutors to assess how the sentiments differ by race and gender. Its findings reveal how the very foundation of the criminal legal system relies upon a White, male paradigm of punitiveness that is resistant to reform, and that this paradigm has infected even “progressive” discourses about the system. Moreover, the system appears to be rotten to the core, or at least punitive to its core, suggesting that efforts to reform it are futile.

This Article invites liberal commentators who hope to address the excess of incarceration to critically examine the ease with which they critique Black women and valorize White men in the system. It invites liberals to untangle the layers of bias that are pervasive in liberal thought.