Abstract

Excerpted From: Kevin Woodson, Doing Justice with Empathy: Black Prosecutors in the Age of Mass Incarceration, 93 Fordham Law Review 1297 (March, 2025) (88 Footnotes) (Full Document)

"Roger," a Black attorney who formerly worked as a federal prosecutor, grew up in a low-income, high-crime neighborhood with a sibling who belonged to a violent local gang. "Nikki," a Black federal prosecutor, also grew up in poverty, with a parent and several other family members who were on "the other side of the law," including one who spent decades in prison. "Marcus," a Black state prosecutor, began his career at the same office that once prosecuted his uncle, who served a lengthy prison sentence.

The scholarship on race and prosecution has seldom considered in-depth the perspectives of prosecutors who begin their careers with such intimate familiarity with low-income Black defendants and their communities. Instead, it has mainly discussed prosecutors, who are disproportionately White, as socially and racially distant from the overwhelmingly low-income and non-White people they prosecute. According to some scholars, this disconnect limits prosecutors' compassion toward defendants, who prosecutors may callously treat like problems to be efficiently processed and disposed of rather than as individual human beings whose lives and futures matter. Prosecutors are presented as consistently exhibiting bias against Black defendants, while remaining indifferent toward their life circumstances and the consequences of prosecution for them and their families.

Although these depictions may or may not accurately portray the thoughts and actions of a good number of prosecutors, they most certainly do not capture those of all prosecutors. Many prosecutors, particularly Black prosecutors, have family histories and personal experiences that provide them a deep understanding of and concern about the social worlds of their defendants that even many defense attorneys lack. Drawing insights from interviews of a diverse group of twenty-six Black attorneys who have worked as state or federal prosecutors, this Essay will explain how such personal backgrounds and lived experiences shape prosecutors' feelings and perceptions concerning their jobs and, in some instances, influence their decision-making. Data from these interviews, part of an ongoing qualitative empirical project on the experiences and perspectives of Black prosecutors the first of its kind--suggest that many Black prosecutors approach their jobs with a set of perspectives reflecting what might be thought of as "community empathy" for low-income Black neighborhoods and their residents. By community empathy, this Essay refers to a broader understanding of the social contexts in which crimes occur, including the structural forces and policing practices that render low-income Black people far more likely than other people to end up involved in the criminal legal system. It also entails a firsthand appreciation of the various harms and costs that criminal acts can inflict upon disadvantaged communities as well as the long-term and collateral consequences of prosecution on criminal suspects and their families. Community empathy therefore entails recognizing the humanity and taking into account the interests of Black defendants--people who certain other prosecutors often write off as worthless, morally-deficient "monsters" and "mopes," as sociologist and Professor Nicole Gonzalez Van Cleve's research reveals. Community empathy also involves a deep concern for the well-being of the many other Black people who bear the brunt of defendants' crimes as neighbors and family members.

Community empathy has varied and indeterminate effects on prosecutors' dispositions and decision-making. In general, empathetic prosecutors may be more inclined than their counterparts to see defendants as salvageable, to worry about the long-term impact of convictions on defendants' lives, and to use their time and political capital to seek leniency for them. But this empathy does not necessarily lead prosecutors to embrace all "progressive" approaches to crime and punishment. Although community empathy can contribute to leniency in some instances where other prosecutors may be less inclined to extend it, it can also motivate prosecutors to punish other defendants about whom other prosecutors might be far less concerned. For example, some Black prosecutors who experienced the consequences of drug abuse and addiction while growing up have highly punitive attitudes concerning people who sell drugs unlawfully. In these and other ways, community empathy enriches prosecutorial decision-making, which speaks to the potential value of diversity in prosecutors' offices.

Community empathy can also subject prosecutors to considerable mental strain and distress, particularly when their work leads to defendants receiving outcomes that they consider unreasonably punitive or when they fail to bring to justice particular defendants who pose threats to their communities. Empathetic prosecutors may therefore experience personal dilemmas and even crises of conscience with respect to their jobs, at times leading them to suffer a secondhand pain analogous to that experienced by empathetic defense attorneys.

It would not be possible to capture the full array of experiences and perspectives of twenty-six prosecutors in a single article, so this Essay focuses on specific aspects of the lives, careers, and outlooks of a subset of interviewees who hail from low-income Black communities and who have family members who have been involved in the criminal justice system. This Essay uses their accounts to introduce the concept of community empathy and to consider some of its contours and implications. In doing so, this Essay focuses on several key themes that appear central to how at least some Black prosecutors from disadvantaged backgrounds approach and experience their work. It is my hope that the perspectives highlighted will resonate with many other Black prosecutors--and perhaps many non-Black prosecutors--while enabling other readers to better understand their experiences.

This Essay proceeds in four parts. Part I explains how some Black prosecutors develop community empathy from their life experiences, particularly their time living in low-income Black communities and their having had friends and relatives who were prosecuted and incarcerated. The following two parts then explain how this empathy can influence how prosecutors carry out their jobs. Part II describes how this empathy instills in many Black prosecutors a determination to protect low-income Black communities from crime and victimization. Part III examines instances in which prosecutors drew from their empathy to work to extend leniency to particular criminal defendants to help spare some of them the consequences of convictions and punishment. Part IV considers a potential downside of prosecutorial empathy, namely the pain that it causes prosecutors who, due to factors beyond their control, are forced to contribute to outcomes inconsistent with their personal values and beliefs.

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This Essay identified and explored an important dimension of the career experiences of many Black prosecutors: the community empathy that they have acquired through their personal connections to disadvantaged Black communities and close family members who have been prosecuted and incarcerated. This community empathy appears to shape how some prosecutors think and feel about the job, and it can influence whether and how they use their discretion to extend leniency to particular defendants.

The concept of community empathy underscores the potential value of diversity, specifically with respect to prosecutors whose life experiences connect them to or provide them insights into the communities most heavily impacted by their work. Prosecutors with hiring and staffing responsibilities, therefore, should consider how the contextual knowledge and understandings possessed by empathetic prosecutors can enable them to help their offices better serve disadvantaged communities.

The concept of community empathy also has potential implications for many Black students and attorneys who might pursue careers in prosecution. Unlike in many legal positions, empathetic prosecutors--despite the considerable constraints they face--may be able to exercise their professional judgment in accordance with their personal values in ways that can profoundly affect individuals' lives while contributing to better community outcomes.

This Essay is but a brief introduction to the concept of community empathy, which requires and deserves more sustained scholarly inquiry. Further research into the preconditions of prosecutorial empathy and its potential impact on decision-making could greatly enrich our understanding of how prosecutors' life experiences influence the administration of justice.

Professor of Law, University of Richmond School of Law. B.A., Columbia University; J.D., Yale Law School; Ph.D., Princeton University.