{"id":12500,"date":"2020-11-19T17:13:49","date_gmt":"2020-11-19T22:13:49","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12500"},"modified":"2020-11-20T16:41:56","modified_gmt":"2020-11-20T21:41:56","slug":"justice-for-breonna-taylor-the-abuse-of-prosecutorial-discretion","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/justice-for-breonna-taylor-the-abuse-of-prosecutorial-discretion\/","title":{"rendered":"Justice for Breonna Taylor: The Abuse of Prosecutorial Discretion"},"content":{"rendered":"

On March 13th, 2020, Breonna Taylor, an EMT, aspiring nurse, and unarmed Black woman, was fatally shot in her home. Months after she was senselessly killed by police, Kentucky Attorney General, Daniel Cameron, recommended charges against just one of the three officers who in total fired 32 shots into the home of Ms. Taylor. That officer was indicted on three counts of wanton endangerment in the first degree by a grand jury in Kentucky. Under Kentucky law<\/a>, \u201ca person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.\u201d Wanton endangerment in the first degree is a class D felony, the lowest of four classes of felonies, carrying a maximum sentence of five years and a minimum sentence of one year. However, the three counts were not brought for killing Ms. Taylor. Instead, the three counts of wanton endangerment were brought against the officer for firing shots that reached a neighboring apartment, where a pregnant woman, her husband, and their 5-year-old child were asleep. That family, unlike Ms. Taylor, was not hit by the bullets. In a press conference on September 23rd Cameron defended his decision to not recommend charges against the two other officers \u2013\u2013 the ones who fired the shots that killed Ms. Taylor \u2013\u2013 claiming that they \u201cwere justified in the return of deadly fire after having been fired upon.<\/a>\u201d<\/p>\n

Many criticize Attorney General Cameron\u2019s handling of the case, calling his actions unjust and evidence of a greater problem within the prosecutorial landscape. Prosecutors have an incredible amount of discretion that they exercise throughout the various stages of a criminal case. Most fundamentally, prosecutors have broad discretion in deciding who to charge and which charges to bring forth. A prosecutor has virtually unlimited discretion when deciding to forgo proceeding with a case for reasons she deems appropriate. Such discretion is more frequently exercised in minor cases, and rarely in cases involving more serious offenses<\/a>. Prosecutorial discretion is also apparent at sentencing. Prosecutors can make explicit recommendations to the court about defendants\u2019 sentencing. Moreover, when prosecutors bring charges that carry mandatory minimum sentences, their sentencing recommendations are displaced by requirements. When a defendant is convicted of a crime that carries a mandatory minimum, a judge\u2019s hands are essentially tied. By bringing such a charge, a prosecutor effectively guarantees that a judge cannot impose a lesser sentence.<\/p>\n

Prosecutorial discretion is also evident at the plea bargaining stage. Like charging and sentencing decisions, plea bargaining presents an array of problems within the prosecutorial landscape. Prosecutors have the power to choose to offer plea deals to criminal defendants and to determine the terms of those deals. When a defendant faces a mandatory minimum or a lengthy sentence, a prosecutor may pressure that defendant into a guilty plea in exchange for waiving the mandatory minimum sentence or amending the charges to one that does not carry a lengthy sentence<\/a>. These examples highlight the vastness of prosecutorial discretion and power within the criminal justice system \u2013\u2013 a power that is rarely, if ever, challenged.<\/p>\n

There are few checks on the discretionary power of the prosecutor. Often described as an absolute power<\/a>, this discretion ultimately faces little consequences when exercised, and because of this, abuses in the exercise of prosecutorial discretion are bound to occur. In the case of Ms. Taylor, many accuse Cameron of abusing his discretionary power in a variety of ways. Firstly, Cameron failed to bring direct charges against the officers<\/a> in Ms. Taylor’s case. As explained, only one officer was charged with three counts of wanton endangerment for firing into the home of Ms. Taylor\u2019s neighbors. No officer has been held accountable for her death. This decision has spurred outrage and left the public feeling as though they were robbed of an opportunity to bring about justice for Ms. Taylor. Cameron is also being criticized for his improper representations about whether officers knocked and announced their presence<\/a> before entering Ms. Taylor\u2019s home. In the news conference on September 23rd,\u00a0<\/sup>Cameron referred to an independent witness who claimed to have heard the officers identify themselves as police before entering Ms. Taylor\u2019 home. However, Ms. Taylor\u2019s lawyers interviewed 11 of her neighbors and inquired about whether they heard the police make an announcement. All 11 of her neighbors claim that they did not hear the police announce themselves. Furthermore, the witness to whom Cameron was referring initially claimed he did\u00a0not\u00a0hear an announcement by police. In a second interview he reiterated this assertion. Only after a third interview did Cameron\u2019s witness claim he heard officers identify themselves.<\/p>\n

Cameron\u2019s discretion was further brought into question after a member of the grand jury accused Cameron of failing to offer the panel the option of indicting the two officers who fatally shot Ms. Taylor. This, the juror claimed, misrepresented jury deliberations<\/a>. In the same news conference, Cameron repeatedly said that the law did not permit him to charge the two officers who shot Ms. Taylor. He stated that his investigation showed that the use of force by officers was justified after they were fired upon by Ms. Taylor\u2019s boyfriend, Kenneth Walker. Cameron claimed that the jury unequivocally agreed with this determination. However, according to the juror\u2019s lawyer, Cameron failed to afford the jury the option of charging the two officers who shot Ms. Taylor \u2013\u2013 in the wake of nation-wide demonstrations and protests calling for the indictment of the two officers. Through his charging decisions, his improper representations of factual determinations, and his misrepresentation of the grand jury\u2019s deliberations, it is clear that Cameron has abused his prosecutorial power. His abuses have left the public feeling discouraged, outraged, and doubtful of the ability of government officials to deliver justice when so many cry out for change.<\/p>\n

Prosecutors, like Cameron, have an immense responsibility over the cases that come onto their desks. Through every decision and choice that is made, prosecutors can affect the entire course of a case. So many defendants move through the criminal justice system at the whim of their assigned prosecutors \u2013\u2013 prosecutors whose motivations continue to come into question as more and more killers of Black men and women walk free. In the case of Breonna Taylor, Cameron made the choice not to pursue justice on behalf of Ms. Taylor. Her death was\u00a0not, as Cameron has suggested, a blameless tragedy. A young innocent woman lost her life. Her family lost a daughter, a sister, a cousin, a niece. The police, their absence of judgement, and their incessant errors are to blame. However, Cameron has failed to make this clear. His inability to exercise his prosecutorial discretion appropriately has failed to assure Ms. Taylor\u2019s family, her community, her state, and our country that what happened to Breonna Taylor will not happen again. \u201cI have no faith in the legal system. The police and the law are not made to protect Black and Brown people<\/a>,\u201d Tamika Palmer, Ms. Taylor\u2019s mother, wrote in reaction to the news of the jury\u2019s findings. Prosecutorial discretion has spread thin; something needs to change.<\/p>\n

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 <\/p>\n","protected":false},"excerpt":{"rendered":"

On March 13th, 2020, Breonna Taylor, an EMT, aspiring nurse, and unarmed Black woman, was fatally shot in her home. 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