Prosecution & Equity
Prosecutors typically view racial and other disparities as a regrettable systemic issue over which they have no meaningful control. Inequitable policing practices as well as criminal laws that skew outcomes are significant problems that help to bake in disparities before a prosecutor ever even touches a case. In addition to providing ready scapegoats, the sheer size of these external contributors to disparities can make prosecutorial action appear futile. At the same time, some of the potential remedies—dismissal of cases or other forms of leniency to correct imbalances—can strike prosecutors as at odds with the need to apply equal justice in each case without reference to a person’s race, gender or class. A form of paralysis sets in with prosecutors equating simply not exacerbating disparities with success.
In the process, they not only set the bar too low, but also may miss how their own policies or practices inadvertently add to the problem. Implicit, or in some instances explicit, biases may shape how prosecutors make recommendations or take actions with regards to suspects and defendants. Policy can further compound these problems, with seemingly neutral ones nevertheless resulting in a disparate impact. Take, for example, the standard prosecutorial reliance on arrest records to inform bail, sentencing and other recommendations. Many prosecutors see these as objective and relevant accounts of a person’s past misdeeds; yet they may also reflect inequitable policing practices. Placing undue weight on them in prosecutorial decisions can thus work to magnify racial and ethnic disparities.
The problems with this approach to disparities are self-evident but bear repeating. It is, of course, morally offensive for one’s demographics to alter their treatment within the criminal justice system. As those entrusted with seeking justice, prosecutors should find this especially repugnant. More practically, it can make the achievement of prosecutorial goals more difficult by degrading the legitimacy of the system. This, in turn, can predispose jurors and potential witnesses against the prosecution, making worthwhile prosecutions harder. The disparities, of course, also point toward unjust convictions and sentences; a system in which demographics govern is one that neither fulfills its promise to protect the innocent or hold the guilty responsible.
Further, prosecutors must overcome any learned helplessness on these disparities and claim greater ownership of the issue. The collection and analysis of data on criminal justice outcomes as well as the recommendations and rationales of line prosecutors can help to identify those areas in which prosecutors may be increasing disparities or have the ability to influence them positively. Legislators and state leaders should ensure that funding and technical assistance exists to help prosecutors improve these data processes, which may be outside of the budget or traditional expertise of some prosecutors’ offices.
Policies should then follow that target these pressure points and start moving the data without jeopardizing justice in any individual case. Offices must train line prosecutors to spot sources of bias in individual cases, but the lion’s share of the work will fall to leadership, who must alter office priorities and instruct line prosecutors to weigh factors so as to make small changes across the entire universe of cases. Devices such as prosecutor decision checklists may similarly help push the decision-making process toward equity without prejudging individual case outcomes. And, of course, this all must be accompanied by a cultural shift—supported by outside political actors and other leaders—that affirmatively asserts these equal justice imperatives as part of the prosecutorial mission.
Racial and other disparities in the criminal justice system represent one of its most pernicious and seemingly intractable problems. Eliminating them will truly require an all-hands-on-deck approach. Long accustomed to focusing on individual cases rather than systemic issues, prosecutors should lean in to this problem and wield their influence and discretion to help ensure that justice looks the same regardless of how somebody does.