Racial Disparity Is a ‘Cancer’; Here’s How Prosecutors Can Cure It

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March for Racial Justice, Washington, D.C., 2017. Photo by thisisbossi via Flickr

The 2020 elections have swept into power yet another wave of progressive prosecutors. From Broward County in Florida to Washtenaw County in Michigan and Los Angeles County, voters have supported candidates who support ending cash bail, de-incarcerating our over-incarcerated nation, holding the police accountable, and reducing racial disparities.

While these prosecutors still represent a tiny portion of the 2,330 locally elected or appointed prosecutors, their impact will likely be felt from coast to coast.

Here’s why. First, the public demand for criminal justice reform has gained unprecedented momentum, with racial biases and white supremacist attitudes now being acknowledged and even condemned by many outside the black community.

Second, the media made these progressive prosecutors into darlings or scarecrows, depending on which news channel one tunes to—but there is still no such thing as bad publicity.

Third, progressives are taking over large cities with the greatest political, financial, and intellectual muscle, and it should be only a matter of time before their progressive ideas start penetrating mainstream America.

As a researcher who spent more than a decade measuring racial disparities in prosecution in more than a dozen offices, I have a few suggestions about how the newly elected prosecutors can deal with them.

Most disparities stem from existing policies and practices—so one should not overestimate the influence of individual prosecutor’s biases. When I did race and prosecution work in the Manhattan DA’s office, I uncovered racial disparities in nearly every stage of case processing from pretrial detention to custodial plea offers.

At the end of this two-year research, District Attorney Cy Vance Jr.  proposed two initiatives to reduce racial disparities: (a) diversifying the workforce, and (b) requiring line prosecutors to attend implicit bias training.

Does Increasing Minority Prosecutors Matter?

Recruiting minority prosecutors is often viewed as essential to addressing racial disparities, yet no evidence supports this assumption. In fact, earlier studies found that Black judges are more likely to sentence both Black and white offenders to prison, and my own research in Manhattan shows that while prosecutors’ caseloads, gender and race do not seem to influence most discretionary points, Asian and Black prosecutors made more punitive offers in misdemeanor marijuana cases, as compared to white prosecutors.

It might be that minority prosecutors in the predominantly white justice system consciously or subconsciously overcompensate to prevent being perceived as lenient.

Or it can also be a reflection of internalized racism.

Here is how Donna Bivens of the Women’s Theological Center, defined internalized racism:

…the situation that occurs in a racist system when a racial group oppressed by racism supports the supremacy and dominance of the dominating group by maintaining or participating in the set of attitudes, behaviors, social structures and ideologies that undergird the dominating group’s power.

While implicit bias training should be a solution for prosecutors of all races, we have no empirical evidence about the effectiveness of such training on reducing disparities in case outcomes.

It also does not help that some offices use this training as a matter of checking the box, and to avoid implementing more time-consuming and politically charged changes to their policies and practices, many of which have gone unchallenged for far too long.

Instead of trying to squeeze juice from dry fruit, why don’t we focus on two things that we know drive disparities: pretrial detention and prior record considerations?

Study after study shows that beyond the seriousness of the current offense, these two factors are the strongest predictors of incarceration. To meaningfully reduce racial and ethnic disparities, prosecutors should embrace bail reform (which many of them are starting to do) and halt the long-standing over-reliance on prior record when making filing, diversion, dismissal, charging, plea offer, and sentencing decisions.

Focus on Priors

We know that due to differential policing practices, Black and brown people have accrued greater prior records, which keeps minority communities in the vicious cycle of the criminal legal system.

My research has found that bad arrests lead to bad prosecution when prosecutors consider prior arrest in plea-offer decisions on subsequent unrelated cases. Considering prior arrest which did not result in conviction violates the presumption of innocence.

As such, prior arrest should be eliminated from the prosecutorial dictionary (although it can still be used for investigative purposes).

That’s not enough.

Prosecutors should also consider eliminating the considerations of prior misdemeanor conviction in diversion and sentencing decision making. In fact, more emboldened elected prosecutors should reject considerations of any prior record for deciding on subsequent unrelated cases, as well as risk assessment tools which heavily rely on prior record and have been shown to worsen racial disparities.

Keeping an eye on racial disparities on a monthly basis and developing a plan, and then following through, is another important quality of a progressive prosecutor. While prosecutorial data and case management systems are generally not great, what is especially lacking is prosecutorial ability to connect data to practice, identify red flags, diagnose problems with additional research, develop solutions, and assess their impact.

My colleagues and I from the Prosecutorial Performance Indicators project help prosecutors to bring this very data culture into this historically non-empirical field of prosecution. Prosecutors should collect, examine and report monthly data on racial disparities at every point of their decision making, and develop a realistic plan for ameliorating them.

Prosecutors should understand that the myopic focus on individual cases is no way to run an office or a division. Making the most “race-neutral” decision on each case does not guarantee racial equity.

So, prosecutors need to do both. They should assess each case and make the best possible decision on it, and examine the cumulative racial effect of these decisions. For example, consider the medical field: while to a doctor every patient is unique, good doctors also observe trends and research to come up with individualized treatment plans.

besiki kutateladze

Besiki Kutateladze

Racial disparity is our metastatic cancer which requires a holistic and aggressive treatment before it fully takes over our society.

A label of a progressive prosecutor gains its true meaning when these newly elected individuals take office and begin translating campaign promises into action.

These elected prosecutors will have to endure a lot of pushback and skepticism, outside or inside their offices. But they will have to prevail.

They will have to keep pushing for reforms, while being aware that there is no silver bullet to addressing racial disparities, and that most efforts will likely show only incremental change, at best.

 Besiki Luka Kutateladze is founder of the Prosecutorial Performance Indicators and an associate professor of criminology at Florida International University.

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