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75 S. C. L. Rev. 55 (2023-2024)
The Politicization of Criminal Prosecutions

handle is hein.journals/sclr75 and id is 63 raw text is: THE POLITICIZATION OF CRIMINAL PROSECUTIONS Wadie E. Said* This Article offers a critical review of how political considerations rooted both in domestic and foreign policy-have distorted the criminal process, thereby offering a complementary analysis of what ails the criminal justice system. This analysis builds on the by-now well-known critiques of the racial and socioeconomic discrimination at the system's heart. The result is a criminal justice system that allows political considerations to dictate results far more than they should. In domestic prosecutions, criminal law is mostly used to target those who seek to question the legitimacy ofstate policies, state agencies (especially the police), or corporate interests, rendering the act of protest in and of itself as criminal. This is in contrast to right- wing protest activity, which must be violent to merit prosecutorial attention. The chief example here is that of the January 6 riot, where the violent activities of the participants have driven the prosecutorial response, not the protest itself The difference between the two types ofprotest has clear racial implications as well, as noted below. When foreign policy interests drive a prosecution, the authorities can be more explicit in articulating racial and religious biases, with criminal defendants often powerless to defend themselves, even if their culpability is questionable at best. Even when defendants are found not guilty, the possibility of extended immigration detention looms. In other words, criminal prosecution articulates a national interest that encompasses a constructed racial component, which captures both minorities and foreigners as representative of the threat. I. IN TR O D U CTION ................................................................................... 56 II. PROSECUTIONS RELATED TO DOMESTIC PROTESTS..............................60 A. Black Lives M atter Protests ........................................................ 61 * Professor of Law & Dean's Faculty Fellow, University of Colorado School of Law. Thanks to Hosam Aboul-Ela, Tendayi Achiume, Zohra Ahmed, Amna Akbar, Ahilan Arulanantham, Ash Bali, Derek Black, Kristen Carpenter, Jack Chin, Darryl Li, Emmanuel Mauleon, Tony Platt, Aziz Rana, Diala Shamas, Jonathan Simon, Shirin Sinnar, Jennifer Zacharia, and participants in faculty workshops at the University of Colorado School of Law and UC Davis School of Law for their helpful commentary. Special thanks to Vanessa McQuinn for all her help over the years, as well as the editors at the South Carolina Law Review. All errors are my own.

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