Executive Summary

The most pressing problems facing criminal justice policymakers and practitioners are racial disparities within the criminal justice system. In many instances, the data on outcomes at each stage of the criminal justice process are stark, with Black individuals disproportionately bearing the brunt of system involvement and severe sentences. While nearly every actor and policymaker associated with the criminal justice system can play a part in addressing this issue, prosecutors remain some of the most powerful. With a hand in decisions ranging from charging to plea bargaining, the policies and practices of prosecutors inevitably influence the existence and extent of any racial disparities. This paper examines the sources of racial dis- parities in the criminal justice system, the ways in which prosecutors may contribute to them and finally, actions that prosecutors can take to help reduce these disparities. These recommendations include better understanding of disparities, decreasing reliance on cash bail and pretrial detention, prioritizing diversion programs and implementing algorithmic color-blind charging.

Introduction

Persistent racial disparities have long been a reality in our criminal justice system. Black individuals are incarcerated in state prisons at approximately five times the rate of white offenders.1 Black men face disproportionately harsh incarceration experiences, including being more likely to be wrongfully convicted and to face the death penalty.2 These disparities stem from many sources in the criminal justice system, but prosecutorial decision-making is a key a factor. Prosecutors hold enormous power in the system, from charging decisions to plea bargaining. These decision points can be used to make disparities worse or to respond proactively.

Recently, a number of prosecutorial policy changes have reduced disparities, which demonstrates that such changes are possible. The disparity between white and Black individuals sentenced for federal drug crimes reduced from 47 months in 2009 to zero in 2018, in large part due to instructions not to seek the maximum penalty for drug trafficking given by then Attorney General Eric Holder.3 At the state level, the ratio of Black to white individuals under some kind of supervision (incarcerated, on probation or parole) declined from around 8.3-to-1 to 5.1-to-1.4 The causes for the reduction at the state level are complicated and include the rising imprisonment of white men, but prosecutorial discretion, particularly in drug cases, has played a part.

There is hope: prosecutors can make a difference and already have made positive changes in some jurisdictions. This paper begins by discussing the problem of racial disparities in the system and potential causes. The second part discusses a prosecutor’s role in the criminal justice system and how they might contribute to this issue. The final part looks to innovative strategies that prosecutors can utilize to reduce disparities.