Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts

Abstract

Using Justice Department antiterrorism efforts as a case study, this article expands upon existing theories of pretextual prosecution by distinguishing a law enforcement system that employs a pretextual strategy from one that employs what I term technical or disingenuous prosecutions. Contrary to Justice Department claims, the data suggest that since September 2001, federal investigators continually have referred a large number of specious antiterrorism matters to federal prosecutors. The data further suggest that federal prosecutors are more likely to be engaging in technical or disingenuous prosecutions than pretextual prosecutions.

Crack as Proxy: Aggressive Federal Drug Prosecutions and the Production of Black–White Racial Inequality

“…We first hypothesize that districts that charge higher proportions of crack cases relative to all drug cases, as well as those that pursue a higher number of weak crack cases as measured by crack case fallout, are more likely to demonstrate racially unequal case outcomes in both the drug caseload and in the overall criminal caseload of a district. We treat case fallout as a measure of prosecutorial aggressiveness because it signals commitment by early‐stage decision makers to pursuing cases without sufficient justification (Lochner ). This hypothesis primarily addresses law enforcement and prosecutorial case selection processes.…”