• Matt Goldstein

Prosecutorial Discretion and Dylann Roof


The trial of Dylann Roof, the young man that fatally shot nine individuals attending a Bible study meeting at Emanuel African Methodist Episcopal Church in June 2015, is gradually moving forward. Roof faces thirty-three federal charges in the U.S. District Court for the District of South Carolina, including: nine counts of violating the Hate Crime Act resulting in death; three counts of violating the Hate Crime Act involving an attempt to kill; nine counts of obstruction of exercise of religion resulting in death; three counts of obstruction of exercise of religion involving an attempt to kill and use of a dangerous weapon; and nine counts of use of a firearm to commit murder during and in relation to a crime of violence. Both Attorney General Loretta Lynch and Charleston County Solicitor General Scarlett Wilson seek the death penalty in their respective trials even though Roof sought a guilty plea in return for a sentence of life in prison. This clear abuse of prosecutorial discretion is problematic for multiple reasons.

Prosecutors have discretion in their determination of charges to bring against a defendant. Laws mandate minimum and maximum sentences for different crimes, but there is no rule that forces a prosecutor to choose which crime to charge in any particular case. In this situation, the Attorney General could have agreed to the plea deal and this federal trial would not be necessary. While it is incontrovertible that the United States has too many individuals in prison, justice does not require Roof, who may be mentally ill, to be sentenced to death. The Attorney General seeks to take revenge against a young man that killed nine innocent people, but revenge does not equal justice. Charging Roof with a death sentence here should not have been allowed, especially because Roof agreed to spend the rest of his life in jail.

Unfortunately, our system affords prosecutors this discretion, and the Attorney General is essentially free to do whatever she pleases. By choosing to charge Roof with the death penalty, a punishment that is becoming increasingly less supported both in this country and abroad, the Attorney General has decided that the death penalty is not cruel and unusual punishment. Nevertheless, states have been making strong pushes to ban the action for a number of reasons, including: a disproportionate amount of minorities on death row; an increase in exonerations of death row inmates based on new technological advances; and an exorbitant monetary cost. As of October 2015, nineteen states and the District of Columbia do not have the death penalty, thirty states have not carried out an execution in the past five years, and 156 people have been exonerated from death row.

In her defense, no pun intended, the Attorney General is free to seek the death penalty because the United States has not banned the action and the Supreme Court has not ruled that it is unconstitutional. On an individual level, when a prosecutor chooses to bring a certain charge against a defendant, the prosecutor is forced to balance a number of countervailing interests. The first comes from the public. The public wants justice and many believe Roof should be sentenced to death for his crimes. This is also known as the “eye for an eye” point of view. Alternatively, others believe that Roof should be sentenced to life in prison without the possibility of parole. In their eyes, Roof should never see the outside of a jail cell, but that it is not justice to have Roof killed because it serves no purpose. To them, killing Roof will not bring the dead back to life; killing him will just destroy another life. Both arguments have their merit.

Second, the prosecutor needs to determine what charges he or she believes can actually be proven beyond a reasonable doubt. The hardest standard to meet in law, prosecutors need to judge on a case by case basis whether the charge being brought is realistically going to meet that standard. It is often a difficult choice for prosecutors to make and requires a lot of pre-trial research and strategy. Third, the prosecutor must deal with political pressure. In a high-profile case like Roof’s case that involves a hate-crime, the prosecutor faces a lot of pressure from politicians who condemn the defendant’s actions and demand justice. Because politicians are the “voice of the people,” their words can often have a large effect on the charges brought against a defendant in a high-profile case. However, in an ideal scenario, the prosecutor should objectively try to determine what the best course of action to take is based on his or her own beliefs. Here, the Attorney General should have accepted Roof’s attempt to plead guilty in return for life in prison.

Plea deals are a completely different animal. They often lead to pre-trial agreements and have had a major influence in law as they have grown in acceptance. However, because of prosecutorial discretion, an alleged criminal that is willing to accept a plea deal does not always receive one. The prosecutor is not required to offer a plea deal, and in the Roof’s case, the Attorney General refused to offer one or accept one the defendant proposed himself. But should this be the case, especially if the death penalty is on the table? The Attorney General said that “the nature of the alleged crime and the resulting harm compelled [her] decision” to seek the death penalty, but several complications have arisen that suggest that the death penalty may not be the correct charge in this case.

Judge Richard Gergel is presiding over the federal trial, which has faced multiple issues thus far. Picking the jury has been extremely difficult, mostly because the large media attention the shooting and trial has seen. In high-profile cases with a lot of media attention, building a neutral jury can often be a challenge because most people watch the news or hear about the case in some other manner through their phone or other electronic device. For this reason, the process is expected to last several more weeks. Moreover, Judge Gergel, on November 10, 2016, granted defense counsels’ request for a competency evaluation.

Should the competency exam illustrate Roof is incompetent to stand trial and understand the magnitude of his charges, the Attorney General’s death penalty charge will become even more controversial in light of the heavy push against executing individuals with mental illness. The Supreme Court has not ruled that the death penalty for individuals with mental illness is unconstitutional, but in Atkins v. Virginia it did hold the death penalty unconstitutional for individuals with intellectual disabilities. Until the competency exam is complete, we will not know if Roof will be diagnosed with an intellectual disability or mental illness.

The takeaway of this post should be that prosecutorial discretion is a huge issue that needs to be discussed more heavily. The legal community needs to address abuse of prosecutorial discretion and what can be done in the context of death penalty sentences specifically. A per se rule that requires prosecutors to accept plea deals the defendant proposes would not work and would in a lot of ways defeat the purpose of plea deals. However, creating a rule that would require a prosecutor to either accept a plea deal in a possible death penalty case certainly makes more sense on both a practical and moral level.

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