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Abstracted from: Roscoe C. Howard, Jr., Changing The System From Within: an Essay Calling on More African Americans to Consider Being Prosecutors, 6-FALL Widener Law Symposium Journal 139-174, 139-142 (Fall, 2000) (173 Footnotes)

Hushed crowds at a New York art gallery . . . saw the ghastly, century-old image of Frank Embree staring back at them . . . . Those eyes, the straight- up posture, the pained scowl. Go on, look at me, he seemed to be telling them. Look at a man being lynched . . . . The year is 1899 . . . . Embree is naked. He is handcuffed. He has been whipped 105 times. He is standing on a buggy, surrounded by his executioners, in a farm field northeast of Fayette, Missouri . . . . He is a young black man who knows he soon will die in front of 1,200 white men, women and teens.

A lynching exemplifies the horrors of vigilantism and lawlessness. It is the paramount example of punishment based on perception. It is the paramount example of punishment based on something other than proof of a criminal act, not the result of a trial with protections afforded to society at large. Often in this country the criminal justice system will turn its sights on an individual because the individual is of a certain ethnicity and not because the individual has done an act that can be associated with a crime. I do not propose to discuss the history of lynching in this country. However, the lynching described above triggered thoughts on our present-day criminal justice system.

Growing up in the Commonwealth of Virginia in the 1950's and 1960's, I listened to many stories from older African American men about life in the south. One story in particular stopped me cold. It was the story of the lynching of an older African American man by a mob of white citizens. I was reminded of that childhood story when I read the description of the lynching of Frank Embree in the Sunday edition of the Kansas City Star. I wondered how did the lynch mob know they had the "right" person? What if they did not? Did they care? Just what did they think they were doing? The story about Frank Embree brought these same questions back to me. I also wondered if things have changed with the passing of time. It made me think of the perceptions many minorities have of our present criminal justice system.

I am reminded that many of my personal and prosecutorial experiences have shaped my beliefs on who should be involved in the criminal justice system. My experiences have helped mold the advice I presently give to students to encourage them to get involved in the criminal justice system. I believe that minorities who question, with skepticism, the criminal justice system should consider being prosecutors.

In my experience, the person sitting across counsel table from the prosecutor, standing accused of a crime, has a familiar face: he could be my neighbor, she could be my relative, or he could be me. Frank Embree had a "familiar" face. This essay has provided me the opportunity and vehicle to convey some of my thoughts on who should be prosecutors-and why.

Frank Embree was nineteen when he was accused of raping a fourteen-year-old white girl. Although rape was punishable by hanging in the state of Missouri at the time, for decades it was a punishment reserved for black men convicted of raping white women. Although Embree maintained his innocence, he was whipped over 100 times until he confessed to the crime, saying "he would 'own-up' if they would 'hang me or shoot me, instead of torturing me."' Frank Embree died at the end of a rope, without a trial, on July 21, 1899.

There were 120 lynchings in the state of Missouri between 1880 and 1951, sixty-nine of those hanged were African Americans. Punishment based on mob hysteria without the benefit of instruction on the law, aid of counsel, the protections of the Constitution and a decisionby a neutral arbiter, has a price. The immediate price is the human toll, the deaths of individuals who are singled out by mobs. Lynching also exacts a societal toll. It punishes those who may be factually innocent. This is a steep price to pay because those who are the victims, those who know the victims, and those who know the particulars of the crimes, will perceive the acts as unjust. Thus, the system that produced the acts will also be looked on as unjust. The foundation of our democratic form of government is the consent of the people to be governed. Our system of law functions on respect and trust that the procedures guiding the system will treat those who come before it fairly. Lynchings undermine the respect and trust of the governed. When the trust is undermined by a criminal justice system that is perceived to be unjust, the consent of the governed will be withdrawn.

A lot has changed since 1951, but one thing remains consistent with the statistics on lynchings in Missouri: African Americans and other ethnic minorities make up a disproportionate number of those who are arrested, tried and convicted of crimes. For many minorities, appearing before the criminal justice system seems no different than facing the lynch mob that Frank Embree endured. The history of slavery in this country, and our heritage as a refuge for immigrants, has made us a society that is defined by race. Unfortunately, the criminal justice system often reflects who we are as a society. At the turn of the last century that "system" included the "Jim Crow" laws in the south, which called for the segregation of the races in the southern states, and in particular, the subjugation of blacks to an inferior status. Southern blacks were subjected to "trials by ordeal" and punished without the protections of the U.S. Constitution. Part of that punishment included the lynching of African Americans.

As I stated at the outset, this essay is not about lynchings in this country, nor is it about the embarrassing era of the now disavowed Jim Crow laws. It is about a system that fosters an atmosphere where a fair trial does not appear attainable to everyone who comes before it. The essay is meant to address one way of making the system more responsive to the demands for justice of all participants. It is about African Americans becoming a part of the system. I propose that African Americans and other ethnic minorities consider becoming prosecutors and diversifying the ranks of those who make the decisions in the system.

In part I of this essay I examine the disproportionate representation of African Americans in the criminal justice system as arrestees or defendants. This section focuses on the death penalty, where punishment is the most severe and numbers are the most stark. It includes a discussion of the Supreme Court's handling of the issues that have resulted in the criminal justice system putting a greater percent of African Americans on trial at a greater rate than their representation in the population.

In part II, I address the issue of African Americans being targeted for criminal investigation because of their race and not because of their activities. While this essay looks at some published reports, I also use my personal experiences to highlight troubling police conduct.

In the final part, I consider the impact black prosecutors can have on the community. I conclude with a look at some of the benefits diversity of prosecutors brings to decisions on who to investigate and who to prosecute and I identify some of the issues that black prosecutors need to consider in pursuing this career.