#ReadWithClutch: Arbitrary Justice by Angela J. Davis

The Book and Its Author

Angela J. Davis is a professor at American University Washington College of Law and the former director of the Public Defender Service for the District of Columbia, one of the best-resourced indigent defense offices in the country. Arbitrary Justice: The Power of the American Prosecutor was published by Oxford University Press in 2007. It is the book most subsequent work on prosecutorial accountability is arguing with or building on.

The premise is deceptively simple. American criminal law devotes enormous attention to police conduct and judicial decision-making, both of which are heavily litigated and extensively documented. It devotes almost no attention to the actor who exercises the most consequential discretion in the system, and who exercises it almost entirely outside public view.

The Charging Decision

Davis’s core structural claim is that the charging decision is where a criminal case is effectively decided, and that it is the least examined moment in the process.

A prosecutor deciding what to file is choosing among options that determine everything downstream: whether the case carries a mandatory minimum, whether it is eligible for diversion, whether it triggers habitual offender enhancement, whether a defendant faces months or decades. Two people who did materially the same thing can be routed toward radically different outcomes based on a decision made in a few minutes by one person applying no written standard.

That decision is not appealable. It is not published. It generates no findings, no reasons, and in most offices no record beyond the charging document itself. Courts have consistently held that the decision to charge lies within executive discretion, and the practical effect is a category of state power that produces the system’s most severe consequences while remaining functionally invisible to review.

Plea Bargaining as the Actual System

The second half of the discretion argument concerns pleas. The vast majority of criminal convictions in the United States are obtained by guilty plea rather than trial, a figure that has held above ninety percent in most jurisdictions for decades. Davis’s point is that this makes the plea negotiation, not the trial, the operative adjudicative event in American criminal law.

A plea negotiation has no judge presiding, no rules of evidence, no public record, and no appellate review of its substance. The prosecutor sets the terms, and the leverage in the negotiation is generated by the same charging discretion described above. A defendant facing stacked counts with mandatory exposure is not choosing between a trial and a plea in any meaningful sense. They are choosing between a certain sentence and a catastrophic one.

Davis is careful here in a way that later reform literature sometimes is not. She does not argue that plea bargaining is illegitimate. She argues that a system which resolves nearly all of its cases through an unreviewable private negotiation cannot describe itself as adversarial and should stop claiming trial-based protections as though they applied.

Accountability, and the Absence of It

The book’s treatment of misconduct is where it becomes directly relevant to Clutch Justice’s beat. Davis walks through the layered protections that make prosecutorial accountability close to theoretical.

The first layer is doctrinal. Under Supreme Court precedent dating to the 1970s, prosecutors have absolute immunity from civil damages for conduct within their advocacy function, including decisions about what evidence to present. Absolute immunity means the claim fails regardless of how egregious the conduct was.

The second layer is the harmless error standard. When a reviewing court finds that a prosecutor withheld exculpatory evidence in violation of Brady, the conviction is reversed only if the court concludes the withheld material would probably have changed the outcome. Misconduct can therefore be found and simultaneously produce no consequence, for the defendant or the prosecutor.

The third layer is bar discipline, which Davis documents as almost entirely dormant with respect to prosecutors. State disciplinary bodies rarely open prosecutorial misconduct matters, and rarely impose meaningful sanctions when they do. The rare exceptions tend to involve unusually visible cases with unusually resourced defendants, which is itself a finding about who gets accountability.

The Michigan Application

Every mechanism in this book maps onto Michigan practice with almost no adjustment.

Michigan county prosecutors are elected, which is often described as the accountability mechanism. In practice a substantial share of Michigan prosecutor races are uncontested, and the information a voter would need to evaluate a charging record is not published anywhere. Elections are only an accountability mechanism when the electorate has access to the performance data, and here it does not.

The Attorney Grievance Commission handles attorney discipline in this state, and prosecutors are attorneys, so the formal path exists. What Clutch Justice has documented repeatedly is that the path existing and the path functioning are separate questions. Davis predicted the pattern in 2007 using national data, and Michigan’s disciplinary record since has not falsified her.

Her proposed remedies are also worth reading with Michigan in mind. Prosecution review boards, published charging standards, and mandatory racial impact analysis of charging and plea data are all administratively achievable at the county level without legislative action. None of them require anyone to be disciplined. They require only that the data exist and be published, which is precisely why they have not happened.

Assessment

Two limitations to name. The book is from 2007, and the reform prosecutor movement that reshaped this conversation postdates it entirely. Readers should pair it with Emily Bazelon’s Charged for what happened when reform-minded prosecutors actually won offices, and for the discovery that a differently motivated person inheriting the same unreviewable discretion is still a person with unreviewable discretion.

Second, the book is more diagnostic than operational. Davis identifies the structure with precision and proposes remedies at the level of policy design, but the reader who wants a documentation methodology will need to build it themselves. That is not really a criticism of the book. It is a description of the gap that accountability journalism exists to fill.

What Arbitrary Justice gives you is the frame. Once you understand that the charging decision is the case, that the plea is the adjudication, and that the misconduct remedies are structurally inert, you stop being surprised by outcomes that would otherwise look inexplicable. You start reading a docket the way it was actually produced.