This is the second in an ongoing series of articles in The Daily Beast exploring prosecutorial misconduct, a series entitled Out of Order. Last week, Jay Michaelson surveyed the landscape of what one judge has called an “epidemic” of misconduct. This week, he turns to the intersection of the prosecutorial system and race.
About one in three black men in the United States can expect to be incarcerated at some point in their lives. Black men comprise 6% of the U.S. population but 35% of the prison population.
Along the way, they will meet a lot of white people.
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Local police forces are, on average, 88 percent white. Places like Ferguson, Missouri, are but the most extreme examples of nearly all-white police departments patrolling majority-nonwhite precincts.
But the white cop is only the first responder. Throughout the criminal justice system, defendants will repeatedly encounter disproportionately white—sometimes all-white—agents of the law. Most importantly, the charges against them will be set by 95 percent white prosecutors, elected on state and local levels. In fact, two-thirds of states that elect their prosecutors have no black prosecutors at all.
Since prosecutors convict 86 percent of the prison population, this means a nearly all-white cadre of attorneys is putting a disproportionately black cohort of defendants in jail.
Now, do all these statistics really matter? Sure, it looks bad that prosecutors are almost entirely white, but that doesn't make them racist, right?
In fact, the racial divide among prosecutors correlates with how they unequally treat black and white defendants.
Remember, the overwhelming majority of criminal cases never make it to judge or jury. A stunning 97 percent of federal convictions and roughly 95 percent of state convictions are the result of guilty pleas reached through plea bargaining between prosecutors and defense attorneys: If the defendant pleads guilty before a trial, he or she will receive a lesser sentence than what would likely result from a conviction after trial.
In this environment, prosecutors have enormous leverage, unchecked discretion, and nearly absolute immunity. They decide initial charges, how to negotiate with defense attorneys, and whether to accept a given plea bargain or proceed to trial.
Even initial charges can have enormous effects down the road. For example, prosecutors may apply a “gun bump” to the underlying charge, or decide whether a homicide is first-degree murder, second-degree murder, or something else like involuntary manslaughter. This totally unreviewed, discretionary decision sets the course of the entire case. (Yes, felony charges are technically presented by a grand jury, but prosecutors get the charges they ask for in an astonishing 99.9 percent of cases.)
Two researchers, Marit Rehavi of the University of British Columbia and Sonja Starr of the University of Michigan, measured how federal prosecutors used this discretion, drawing on a wide pool of multi-agency data. The results are remarkable.
In their meticulously researched report, and controlling for legally permitted characteristics (arrest offense, criminal history, etc.), they found an “unexplained” 9 percent disparity in sentencing between black and white defendants who committed the same criminal acts. (The disparity jumps to 13 percent when including drug cases.)
In other words, if you’re black, your sentence will be 9 percent worse more than if you’re white.
Why? Rehavi and Starr found that black men are 65 percent more likely to be charged with crimes carrying a “mandatory minimum” sentence than the average defendant, a factor they said accounts for “more than half” of the sentencing disparity. (This is true even though mandatory minimums only apply to a small number of cases; even that small number has a huge impact on the total.)
In other words, the driving factor of the racial sentencing disparity is not judges, not juries, not cops—but the unchecked discretion of 95 percent white prosecutors to push for mandatory minimum sentences.
“Racial disparity is potentially being baked into the DNA of cases through this pivotal decision,” Rehavi told The Daily Beast, “and judges are largely powerless to redress it in sentencing.”
Now, are there “smoking guns” that tie white prosecutors to individual cases of race-based bias? Not usually. Prosecutors don’t leave smoking guns lying around—they’re much too smart to do so. And anyway, the point isn’t whether an individual prosecutor is racist or not; the point is the institutional racism of the entire system.
Indeed, Rehavi pointed out that “many federal judges were once federal prosecutors, but we don’t find evidence of racial disparity in federal judges’ sentencing decisions.” In other words, the same people who over-prosecute as prosecutors do not over-sentence as judges. It’s the institution, not the individual.
So what can be done?
To remedy the disparity in the prosecutorial bar will not be easy.
To be sure, part of the reason prosecutors are so unrepresentative of the communities they serve is that the legal profession as a whole is unrepresentative. According to the American Bar Association, 88 percent percent of lawyers in the U.S. are white. Opinions of African-American law students and new lawyers may also play a role: relatively few opt for careers in prosecution, perceiving the profession as complicit in mass incarceration.
But elections play a central role. Unlike legislative districts, voting districts for prosecutors do not take race into account, and as a result, non-whites are permanent minorities in many of them. For example, consider St. Louis County Prosecutor Robert McCulloch, who declined to press for an indictment of Officer Darren Wilson in the shooting of Michael Brown. McCulloch made that decision as he was running for reelection in St. Louis County, which is 70 percent percent white. Coincidence? We’ll never know. Of course, even if St. Louis County is 70 percent white, towns like Ferguson are two-thirds black. Not unlike the Ferguson police force, the St. Louis County Prosecutor’s Office looks very different from the community it is meant to serve.
In addition to demographics, the nature of prosecutorial elections often amplifies the racial divide. Specifically, the common “tough on crime” messaging often includes coded racial language meant for white voters’ ears. If a white voter thinks of a person of color when she hears “crime” or “criminal,” then “tough on crime” means “tough on blacks.” It’s like a permanent “Willie Horton” advertisement, a racially coded dog-whistle to white voters. And think about it: Has a prosecutor run on a platform of “Compassionate to the Wrongly Accused”? Or “Wisely Balancing Justice and Fairness”?
The brutal fact is that majority-white voters often reward white prosecutors for defending perceived white interests. Consider Staten Island district attorney Daniel Donovan, who, as prosecutor in the Eric Garner case, failed to secure an indictment against a police officer for putting an unarmed man in a fatal chokehold, an incident captured on video. The grand jury voted not to indict on December 4, 2014. Did an outraged populace demand Donovan’s resignation? Hardly. He was elected to Congress in a special election on May 5, 2015.
Diversifying the prosecutorial bar would likely require reforming, or even eliminating, the uniquely American system of electing prosecutors—the subject of the next installment in the Out of Order series.
Of course, most prosecutors are diligently, honestly doing their jobs. Yet somehow, in the aggregate, this disproportionately white group treats a disproportionately black group of defendants in disproportionately harsh ways. At a certain point, the disproportions add up to injustice.
