Saturday, September 23, 2017

Abstracted from: Kenneth B.Nunn, The "Darden Dilemma": Should African Americans Prosecute Crimes? , 68 Fordham Law Review 1473-1508, 1473-1478 (April, 2000)(Footnotes ommited)

W.E.B. Du Bois said that we were all of two worlds--part African and part American. It is only in the middle where we can be free to be both, to move in the world of American laws and culture without forsaking our African heritage. Christopher Darden


Everyone knows who Christopher Darden is. Even now, years after the O.J. Simpson murder trial made him a household name, he remains a recognizable public figure. While his involvement in the Simpson prosecution brought him fame, fortune, and professional opportunities, Darden asserts that serving as a visible African American prosecutor, who sought to convict a popular African American sports figure, had its costs as well. According to Darden, at least some members of the African American community view him as a "sell- out"--one who allowed himself to be used to further white interests for personal gain at the expense of the broader African American community.

In his account of the O.J. Simpson trial, Darden characterizes the criticism and cold reception he received from the Black community as misdirected racism. From Darden's perspective, it was his dedication to his role as a prosecutor that opened him up to this form of criticism. By fulfilling his professional obligation to prosecute crimes fairly, impartially, and without regard to race, Darden believes he incurred the wrath of the African American community.

Christopher Darden has come to epitomize the burdens that African American prosecutors face as they perform their professional tasks. Moreover, the "Darden Dilemma" has become a generic term for the anguish that these prosecutors endure as they negotiate between competing allegiances to the African American community and the State.

Although Christopher Darden has lent this conflict his name, he is not the first to experience it. Black prosecutors have long felt compelled to defend their career choices against allegations of their insensitivity to the needs of the African American community. Much has been written about the sense of isolation that African American prosecutors feel, and the commitment, or lack thereof, of African American prosecutors to African American collective interests and goals, has long been a topic of discussion within the African American community.

I can understand the hurt and isolation that Christopher Darden must have felt as he confronted the conflict between his role as a prosecutor and his obligations to the African American community. Like Darden, I too believe it is important for African American lawyers to "move in the world of American laws and culture without forsaking our African heritage." But this belief leads me to a different conclusion than that reached by Darden. In my view, the best resolution of the "Darden Dilemma" is for African Americans to refrain from prosecuting crimes and to reject employment opportunities with prosecutors' offices. I argue this, not because Black prosecutors do not advantage society and the Black community in particular, but because the harm their presence in prosecutors' offices engenders outweighs any benefit.

I believe that the outcome I counsel here--that African Americans not prosecute crimes--is both moral and ethical. I will make the case for this finding below. First, however, it is important to examine the contours of the "Darden Dilemma" and the precise nature of the moral and ethical problems it presents.

Professor Margaret Russell has written a thoughtful and sensitive analysis of the "Darden Dilemma" phenomenon. Professor Russell rejects the viewpoint that the "Darden Dilemma" is caused by an uninformed Black community that seeks to enforce lawless and potentially racist values against diligent African American prosecutors who are only doing their job, even when that job means incarcerating African American defendants. The "Darden Dilemma," Russell suggests, is better viewed as "an ongoing interplay of competing values within Black attorneys who are attempting to puzzle through the implications of their professional choices for the well-being of Black communities." Black prosecutors make these professional choices, Russell rightly points out, in a world that is not of their making. Consequently, any discussion of the appropriateness of their professional conduct must also take into account the constraints within which they must operate.

I agree, in part, with Russell's redefinition of the nature of the "Darden Dilemma." Any discussion of the professional or ethical obligations of the African American prosecutor must recognize that Black prosecutors may face internal moral conflicts as they seek to negotiate a space between seemingly competing professional and community demands. Such a discussion must also be sensitive to the fact that this negotiation takes place in a shifting landscape, the parameters of which are not necessarily under the control of the African American prosecutor nor the African American community. "Darden Dilemmas" and their solutions are, admittedly, fluid, not static. Whether a given prosecutor can be said to promote or retard the interests of the African American community, and whether the African American community has fairly or unfairly injected its interests in a given case, is a nuanced and complicated question. And it is one that cannot be reduced merely to a scorecard analysis that simply records the race of those charged.

Unlike Russell, I do not think that the ethical issue inherent in the "Darden Dilemma" can be reduced simply to a matter of the internal moral conflicts that African American prosecutors must face. For Russell, the most insidious aspect of the "Darden Dilemma" is that it limits the individual choice of the Black prosecutor. She writes that "[s]tereotypical, externally imposed assumptions about the role and function of Black attorneys have the powerful effect of straitjacketing and asphyxiating Blacks in an already highly restrictive environment." In Russell's view, Black prosecutors trapped within the "Darden Dilemma" can only choose between two equally unappealing alternatives: being branded a "sell-out," or being accused of recklessly "playing the race card." The "Darden Dilemma," as she characterizes it, is the result of the "inner tension" occasioned by this limited choice.

I think there is an external dimension to this debate. The dilemma faced by Black prosecutors is not a dilemma merely because of the individualized decisions that they must make. Those decisions pose a dilemma only because of the differing costs and benefits of one choice over the other, costs and benefits which must be assessed in a given contextual setting. Black prosecutors are only confronted with a dilemma if the African American community defines its interests in a way that calls into question the ordinary professional expectations of prosecutors. In any moral debate in which the interests of the Black community are implicated, there must be a place for that community to express its point of view. The Black community has the right to determine the proper moral conduct of its members and to enforce that conduct as the price of membership. This is a matter of self- determination. To argue otherwise is to challenge the legitimacy of the African American community itself, a nonnegotiable position from an African American point of view.

Although questions of the ethical and moral dilemmas faced by African American prosecutors are indeed difficult, they are not impossible to resolve. For instance, Professor David Wilkins shows that even Professor Russell's nuanced construction of the "Darden Dilemma" does not prevent her from asking whether Christopher Darden's behavior in the Simpson case was acceptable on the merits. As Professor Wilkins demonstrates, one's concern with avoiding totalizing positions and essentializing labels should not prevent one from asking important questions. By framing the "Darden Dilemma" as a conflict caused by constraining individual choice, Russell evades the questions of whether the prosecution of crimes inflicts harm on the Black community and if so whether the Black community can consequently impose demands on African American prosecutors.

I think these questions are worth asking. Of course, in order to pose any important question, one must disclose one's assumptions and ground the question in an appropriate context. I would phrase the question posed by the "Darden Dilemma" in this way: at this moment in history, given current political realities, the social milieu in which people of African descent exist in the United States, and the limitations in which Black prosecutors must operate, should African Americans prosecute crimes?

Most commentaries on the "Darden Dilemma," including those by Russell and Wilkins, do not squarely treat this question. They, like others, assume that it is not a serious question and that any such demands that African American community members place on African American prosecutors as members of that community are illegitimate. Most often, this is so because the community pressure at the core of the "Darden Dilemma" is treated as a vulgar exercise of racial politics. Insofar as professional ethics go, a "Darden Dilemma" so defined is no dilemma at all. There is no professional reason why prosecutors should follow the lawless demands of an uninformed and self-interested mob.

Many commentators insist on framing the discussion this way. This is overly simplistic, and in the end, it is merely an inelegant attempt to justify and privilege conduct that favors the State and authoritarian values. Few would argue that African Americans should not prosecute other African Americans simply because of the affinities of race. But whether it is in the interest of the African American community for African Americans to prosecute crimes against African American defendants is a different question. In this context it is not simply the race of the actors which is important, but how the interests of the African American community are conceptualized and defined. To put it another way, whether African Americans should prosecute crimes is a political question and a moral issue, not simply a question of racial allegiance.

In this Article, I argue that African Americans should not prosecute crimes. I make this argument because I believe that when African Americans prosecute crimes, they do extensive and avoidable harm to the African American community. The contours of my argument are simple: (1) the criminal justice system is racist and oppressive to African American people; (2) prosecutors are a major source of the racism found in the criminal justice system; (3) African American prosecutors cannot eliminate the racism in the criminal justice system by themselves; and (4) African Americans should not contribute to the oppression of other African American people.

Part I of this Article evaluates the effects of the criminal justice system on the African American community.

Part II, discusses the role that prosecutors play in the overrepresentation of African Americans in the criminal justice system and the prosecutors' response to such overrepresentation. Furthermore, Part II evaluates the desirability of this response from an ethical standpoint.

Part III considers the African American prosecutor's obligations to the Black community.

Finally, Part IV suggests a resolution to the "Darden Dilemma."

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