Ethical Prosecution: Combating Racism in the Criminal Justice System
When I initially entered law school, I was interested in criminal defense work. During law school, I interned for a criminal defense attorney and worked with the Innocence Project Northwest Clinic in order to learn the ins and outs of defense work. However, after an interview with a public defense organization during my 2L year, my goals shifted to being a prosecutor. My intent in entering defense work was to balance the scales — to work towards creating a fair criminal justice system in which defendants had a fighting chance. As a prosecutor, I would be in a much better position to actually make the decisions that affect defendants and ensure that truth and justice and sought under my watch. I later learned that my approach is seen as idealistic — prosecutorial discretion is not as free wielded as I first believed. This can be the result of a variety of causes, including “tough on crime” attitudes that focus on conviction rates and micromanaging from higher up that limits individual prosecutors discretion. My career path still leads to prosecution — but I am aware that changes need to occur in order to ethically prosecute cases and ensure that bias and racial disparities in the criminal justice system are avoided.
It is no secret that communities of color — African Americans in particular — are disproportionately entangled in the criminal justice system. [1] For example, African Americans and Latinos comprise 56% of all incarcerated people in 2015, though they only make up about 32% of the U.S. population. [2] African Americans are incarcerated at five times the rates of whites. Id. A variety of complex factors contributes to these results — including socioeconomic factors (e.g. low income defendants cannot afford bail), police encounters, and criminal laws that unfairly penalize conduct by some citizens and not others. These racial disparities exist at nearly every level– from arrest rates and bail amounts to sentencing lengths and probation hearing outcomes. [3]
After the shooting of Trayvon Martin in 2012, society and the media have largely focused on how police largely contribute to these racial disparities by discriminating against black men and women. [4] Although this focus is necessary and proper, there is another player who has the capacity to affect these rates — prosecutors. Once arrested, what happens next is largely within the discretion of the prosecutor. Prosecutorial discretion dictates whether someone will be formally charged, what amount of bail is set, whether to offer a plea deal or proceed to trial, and the sentencing recommendation, amongst other things. Unlike law enforcement officers, who are often making split second decisions such as whether to shoot or not shoot, prosecutors make decisions in a more deliberate fashion.
Despite having these awesome decision making powers, many prosecutors may unknowingly perpetuate the system of bias and institutional racism that plagues society today. Recent studies have found that a defendant’s race “race directly or indirectly influenced case outcomes, even when a host of other legal or extra-legal factors are taken into account.” [5] Black males in particular receive disproportionately harsher treatment at each stage of the prosecutorial decision-making process. Id. Prosecutors are less likely to charge white suspects that black suspects. [See 6]
Why is this happening? Prosecutors are not overtly racist or bad people by nature of their position, although some bad apples may be. Implicit bias, however, affects even the most well-intentioned prosecutor. Stereotyping can be activated by seeing one person from a stereotyped group, hearing a certain type of music, or being exposed to stereotype-consistent words (“priming”). [6] For example, a large majority of Americans associate black individuals with aggression, hostility, guns, and weapons. Id. At the same time, many dissociate white people in weapons. Unconscious bias increases in ambiguous situations. [3] The decisions that prosecutors engage in — such as what and how many charges to file — are inherently ambiguous. Id.
This explains why people of color are continually disproportionately entwined in the criminal justice system despite legislation attempting to even the playing field and prevent racial bias (i.e. the 2010 Fair Sentencing Act, which reduced unequal penalties and eliminated the five year mandatory minimum for crack cocaine possession, which punished blacks more harshly because they were more likely to have crack cocaine than powder cocaine). [5]
Given the wide latitude and discretion prosecutors have, bias in prosecutorial decisions can have a potentially disproportionate impact on defendants. How can we address this unintentional bias? Attempts to encourage people to become less biased rarely work; as most people exhibiting bias are unaware they are doing so. Id. Some scholars propose adopting a “blinding” system — where prosecutors are blind to the race of criminal defendant for as long as possible (the exception would be situations in which the defendant’s race is relevant to the charge; i.e. hate crime). [5] Although race blinding may not even be feasible (due to the complexity associated with removing all race-related information, especially in cases where relevant photo evidence must be reviewed), turning “blind” is not the best option.
Rather than attempt to blind prosecutors in a field that is already stacked against communities of color, prosecutors should do the opposite: pay attention to race and address the policies that lead to these disparities. Determine who is being charged with what, and at what rates, and why is this happening? Policy changes could include refusing to ask for cash bail for nonviolent offenders and refusing to bring cases based on illegal searches. [7] Most incarceration is done at the state and local level. By consciously observing the effects of your office policies and shifting your behavior to avoid unconscious bias and discrimination, local jurisdictions can have a huge impact and change the abysmal state of the criminal justice system that disproportionately punishes people of color.
While law enforcement officers are the gatekeepers to the criminal justice system, prosecutors ultimately decide and determine whether and how someone will be involved with it. There are two aspects of a prosecutor’s role that are vital for ethical success in the criminal justice system: (1) the prosecutor represents the public, not a single individual or law enforcement interests alone, and (2) prosecutors have a duty to work towards truth, fairness, and just results. [8] In order to ethically carry out their duties, the whole culture of prosecution must shift and shoulder the responsibility of consciously seeking out and addressing any racial bias is occurring in their offices. The good news is that the public supports a shift towards electing prosecutors who prioritize reducing incarceration, addressing racial disparities, and transparency. [9] Although our criminal justice system is broken, prosecutors have the power to stop perpetuating racial inequalities by proactively addressing the policies that lead to such disparities.
