Empirical Scholarship on Legal Ethics

An important aspect of behavioral legal ethics is that it is grounded in empirical research — an approach that, of course, is not limited to behavioral science. Rather, findings from a broad range of disciplines can be important in making accurate assessments of how ethical decisions by lawyers are made. One of the most significant contributions in this area is Lawyers in Practice, published in 2012. Other works take a similar approach.

An example worth reading is an article recently published by K. Babe Howell in the Georgetown Journal of Legal Ethics, which focuses on arrest and processing statistics that demonstrate significant racial disparities in who is ultimately prosecuted and convicted for low-level drug offenses. The implications of this data for the ethical exercise of prosecutorial discretion are discussed.

Here’s the abstract:

This Article examines the discretionary power that rests in the prosecutor’s office and the ethical duty to seek justice that guides that power. I argue that chief prosecutors should decline to prosecute entire classes of minor offenses where policing choices give rise to racial disparities or lead to overburdened courts that can provide neither procedural nor substantive justice.
Prosecutors have a special ethical duty to seek justice. However, zero-tolerance policing of minor offenses have resulted in overburdened lower criminal courts in which prosecutors are unable to meet that duty. Prosecution in these overburdened courts undermines justice in two important ways. First, because zero-tolerance policing is typically enforced in communities of color, racial disparities in criminalization are exacerbated, and unequal enforcement of the law is permitted. Second, the overburdened criminal justice system does not reliably distinguish between constitutional and unconstitutional arrests, searches, and seizures, or between guilty and innocent individuals. Refusal to prosecute certain classes of minor offenses will reduce racial inequities in the criminal justice system and improve the ability of prosecutors to meet their ethical obligation to provide procedural and substantive justice in the remaining cases.

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