Prosecutorial Discretion and Institutional Racism: The Killing of Stephon Clark

By Laura E. Gómez

Gómez teaches criminal law at UCLA and is the author of

Misconceiving Mothers: Legislators, Prosecutors and the Politics of Prenatal Drug Exposure.

Dr. Laura Gómez, Professor of Law

The Sacramento County district attorney announced Saturday she is declining to file homicide charges against two police officers who a year ago killed 22-year-old Stephon Clark. The officers chased Clark into a backyard that turned out to be his grandmother’s home, taking less than five seconds to fire 20 rounds at Clark. Anne Marie Schubert said she had no choice because the law was clear: “if the officer [using deadly force] honestly and reasonably believes” he is in danger, it’s not murder.

The prosecutor’s decision provides a powerful example of an often hard to convey concept: institutional racism. Institutional racism operates when the entire system — in this case the criminal justice system — is infected with racism that accumulates, layer by layer like sediment in a rock formation. For decades, civil rights leaders have used the term to shift our focus away from individual perpetrators of race-based discrimination toward features or processes of an organization or institution that over time become taken for granted by the players involved as simply “the way things are.”

Prosecutors have broad discretion to decide what charges to file or whether they will charge someone at all. Their decision-making is largely a black box, shielded from public accountability, despite the fact that in most counties across the nation they are elected officials. And it’s true even though the charging decision is among the most pivotal in the criminal justice process. Unlike most cases, Schubert’s press conference laid bare her calculus — asking whether a jury would ever convict the police officers. Without notice to Clark’s family, she shared that the victim had conducted searches on how to commit suicide and the coroner’s report of both prescription and illicit drugs in his system — because, she said, a jury would consider such factors.

We know the prosecutor’s tactic well as putting the victim on trial. Typically, we talk about this phenomenon in rape cases where the defense attorney attacks the credibility and character of the victim. But prosecutors likewise use this technique when they do not want to file charges against a potential defendant, concluding that a jury would never vote to convict. But what jury was Schubert imagining? Was it a jury that looked like Sacramento County, where racial minorities and mixed race people outnumber whites 60 to 40 percent?

I doubt it. In fact prosecutors typically envision their ideal jury: one that is mostly or all-white and pro-law enforcement. New prosecutors still are taught to avoid seating jurors who might disfavor law enforcement — crudely designated as more likely to be people of color, especially blacks and Mexican Americans in California. In some states, instruction manuals for prosecutors actually put this advice in writing, or they did until 2005, when the Supreme Court overturned a death penalty conviction in part due to this and other evidence of systematic removal of black jurors by prosecutors in Texas.

Another dirty little secret in our system of law is that defense attorneys advising their disproportionately minority clients themselves conjure the pro-law enforcement, all-white jury when advising their clients to plead guilty in order to avoid a “risky” trial. This drives 95 percent of those charged with crimes to waive their constitutional right to a jury trial. In this sense, Schubert’s decision is doubly reflective of institutional racism because she knows, were they to be charged, police defendants would probably elect a trial by judge rather than jury.

As a society, we’ve been better at naming and fighting institutional sexism than institutional racism, though we have far to go. Thanks to feminists’ campaigns in the 1970s, most states have enacted so-called rape shield laws. Though they are imperfect, these laws attempt to shield rape victims from being put on trial with their alleged rapists. Just as important, they removed prosecutors’ excuse not to file rape charges by saying, in essence, given the victim’s sexual history, no jury will convict. Instead, today we have a system that is much better at taking victims of sexual assault seriously and that encourages prosecutors to file rape charges, even when they think a jury conviction may be an uphill battle.

It is past time for prosecutors to take the same attitude toward victims of police shootings. We will never know whether a Sacramento County jury would have convicted Stephon Clark’s killers. But perhaps his tragic death can be a wake-up call that helps us combat institutional racism at its root.