Thomas P. Hogan


One of the most powerful tools available to the United States Department of Justice (DOJ) to stop abuses in the criminal justice system is the federal pattern-or-practice statute, which allows DOJ to bring an enforcement action to prevent discriminatory conduct by government agencies. The most powerful actor in the criminal justice system is the district attorney, the local prosecutor who is at the center of the system. Does DOJ’s pattern-or-practice enforcement authority extend to local prosecutors? This crucial question remains unresolved in formal precedent and has not been addressed in the relevant literature. This Article explores the issue in detail, considering the statutory and legislative background from both federal and state sources, the meager and uninstructive real-life scenarios where DOJ has attempted to bring an enforcement action against a local prosecutor, parallel precedent addressing DOJ’s authority over judges, and DOJ’s own conflicted views. Federal resources demonstrate an almost uniformly negative view of DOJ’s standing to bring a pattern-or-practice action against a local prosecutor. However, previously unexplored state law and an analysis of the evolving and expanding authority exercised by some district attorneys reveal novel and newly viable avenues to establish DOJ’s standing in this area. This Article finds that DOJ currently lacks uniform standing to bring a pattern-or-practice enforcement action against a district attorney, with such authority existing only in limited circumstances. The benefits and dangers of amending the statute to grant DOJ such power are addressed, including practical issues, normative concerns, and political ramifications. This Article recommends that the pattern-or-practice statute be amended explicitly to include local prosecutors, providing critical nationwide oversight regarding such potent actors. The Article also explores a potential alternative solution which would provide more transparency regarding the decision-making of district attorneys.

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