The following is an adaptation of a talk I gave to the Leadership Conference of the ABA Center for Professional Responsibility.
The carceral state is the civil rights issue of our time. What I mean by that statement is not just about mass incarceration but also the even greater numbers of individuals under probation, parole, and other forms of post-release supervision. This system makes the United States the most carceral nation globally, with approximately 2.3 million individuals in prisons and jails, approximately 3.6 million on probation supervision, and approximately 870,000 on parole.
It’s a civil rights issue because Black and brown people are incarcerated at more than six times the rate of whites. Though African Americans make up approximately 13 percent of the population, they account for 30 percent of the people on probation or parole. It’s a civil rights issue because our practices dehumanize black and brown people, fail to deliver on the promise of enhancing public safety, and ravish underserved and under-resourced communities of color.
The responsibility for—and the causes of—these race-based disparities in the criminal legal system find their origins in this nation’s failure to deliver on its promise of equal justice under the law. It fails to provide fair, just, and equal healthcare or equal social, educational, and economic opportunities to people of color. So, it should be evident to us all that the ultimate solution lies in the accountability and transformation of these systems.
But that’s not the purpose of my observations for this column. Today we are not here to discuss the cure but how best to treat the symptoms. The criminal legal system is the manifestation of the failures of these more fundamental systems. More specifically, I seek to discuss the role of arguably the most powerful actor in the criminal legal system, the prosecutor, to address and redress the civil rights issue of racial disparities, racial inequalities, racial inequities, and racial injustices in this system.
The ABA Center for Professional Responsibility is deeply committed to advancing the public interest by promoting and encouraging high ethical conduct and professionalism by lawyers and judges. And the Center most likely has given a lot of thought to how the Model Rules of Professional Responsibility, in particular, Rule 3.8: Special Responsibilities of a Prosecutor and Rule 8.4: Misconduct, are applicable and should guide the obligations and conduct of prosecutors to ensure fair, just, and equal treatment for all. But suppose you are anticipating an academic discourse built around these rules. In that case, I refer you to an excellent article authored by Teresa J. Schmid, director for the Center, on racial justice as an ethical imperative. My remarks center more on my own experiences and observations.
Let me begin by sharing a story with you. As a young prosecutor, I was trying my first solo felony trial. I had already tried numerous misdemeanors and had the good fortune of second chairing many high-profile felonies with some of the best senior lawyers in the office. After the jury was selected and impaneled, the defense attorney came over to me with a smug look on his face and remarked I must be a “newbie.” My heart started racing, and I was filled with apprehension over what tragic, unknown faux pas I had made. But I calmly enquired as to why he made that statement. He replied, “You have to be. How did you let me get all those black people on the jury?” I felt an immediate wave of relief! My reply? “Do you think I’m afraid to talk and connect with my own people? I’m from Brooklyn!”
I share this story as one example of how the implication of race and bias was up close and personal for me from day one of my career. I was not consciously considering race when I calculated that the middle-aged teacher of Jamaican descent would be a strict disciplinarian or that the Haitian home attendant would understand the frailties and sometimes mental confusion of my elderly victim or that I happened to notice how one of the black women had a surprised but maternal look on her face when she saw a young Black man in my role…and even glanced at my left hand, which I speculated was her checking for a wedding ring. The defense attorney saw gender and race primarily, following the premise that too many white prosecutors (and often prosecutors of color also) that Black jurors are sympathetic to Black defendants and white jurors are biased against them. I guess the cultural calculus of having a 30-something-year-old Black man accused of assaulting and robbing his elderly Black neighbor was secondary.
It initially took caselaw, not professional rules of conduct or intrinsic ethical values, to address racial bias in jury selection. Prosecutors just adapted and perfected race-neutral justifications for keeping people of color off juries. I do not imply that, as a class, prosecutors are racist. That would be an indictment of myself, along with well-meaning prosecutors around the nation. But in the battle to triumph in the adversarial process and win convictions, “playing within the rules” is not necessarily the equivalent of “playing fair and with integrity.”
I shared this story is because it reflects the implicit preferences and prejudices that we all have as human beings. That defense attorney had his implicit biases, along with some explicit biases, but I also had mine! I may not have focused overtly on skin color, but I damn sure was subconsciously influenced by culture. More on this later.
Let me focus for a moment on the most potent tool of the prosecutor—the exercise of prosecutorial discretion. In 2005, I took a leave of absence from the District Attorney’s Office and joined the Vera Institute of Justice in NYC as the founding director of the Prosecution and Racial Justice Program (PRJ). The mission of PRJ was to demonstrate that by collecting data at each of the critical decision-making points in the life of a case, including demographic data, it was possible to identify unwarranted disparate racial outcomes at each of these crucial points and in the final disposition of cases. Additionally, by further data interrogation and discussion with managers, it would be possible to identify policies, procedures, and practices that, on the aggregate level, were driving or contributing to these outcomes and then institute changes that would mitigate or even eliminate these racially biased outcomes.
Three long-time elected prosecutors agreed to pilot the project in their jurisdictions. These prosecutors understood that race-based bias and disparities in the criminal legal system were eroding confidence in the system. To maintain that confidence, prosecutors had to be more proactive. One prosecutor shared that he was a man of faith and strived to hire the most ethical lawyers because he loves the people of his community. Yet, his jurisdiction had the highest disparate prosecution of Black men in the state, if not the nation. Something was not right, and he sincerely wanted to find out why and to remedy it. Another quipped that inviting researchers into the office was like voluntarily letting termites into your home. But he had faith that in the end, the house would still be standing. These prosecutors knew then what prosecutors are bearing witness to today: that sooner or later, the microscope would be upon them. They had the courage and commitment to justice and equity to do something about it.
As it turned out, PRJ successfully identified unwarranted disparities in various decision points and many of the contributing factors. By working with the senior managers in the office, remedial efforts were successful in addressing these disparities. The preliminary results also showed that these disparities were not as widespread or insidious as one might believe. So, in terms of the prosecutor’s role in combatting racial bias and injustice in the criminal legal system, the first takeaway is that prosecutors have a role in contributing to racial disparities. It is possible for prosecutors to count, measure, and manage their direct contribution to this inequity and—more importantly—the power to mitigate it!
I must also acknowledge that prosecutor offices generally lack the technology infrastructure, resources, and knowledge of using data as a management tool. Learning from the example of law enforcement, some large offices are employing the use of data as a crime-fighting or predictive analytics tool. But that is far removed from using data as a justice and equity-focused performance management tool. It also means that one must appreciate that public safety is not merely the absence of crime but a feeling of wellbeing in the community and confidence in all the systems that the community relies upon for safety and justice.
This brings me to the second takeaway. I mentioned the role of implicit bias earlier. There was implicit bias at work in the first jurisdiction I mentioned. In another jurisdiction, PRJ was able to identify significant racial disparities in charging practices in two of the top seven crime categories the office prosecuted. We could even drill down to two specific charges in the drug crimes category that drove the identified racial disparity. But I want to share the interesting findings in the property crimes category.
That was the one category where if you were Black, you stood a better chance of having your case not accepted for prosecution than if you were white. At first, the consensus was that the office was making charging decisions equitably because there was a lack of sufficient evidence in many of those cases. But the manager of the Community Prosecution Team opined, not necessarily. What if they were devaluing the victims because of race? The African Americans in the community were very distrustful of the police and prosecutors. They also sometimes lacked the means to travel to the office to assist in the case or couldn’t afford to take off from work. In essence, they did not trust or want to engage with the system. As a result, we see yet another operation of implicit bias and how one prosecutor who was familiar with the community could challenge his colleagues’ views and conclusions.
Implicit prejudices and preferences are key factors in almost all human decision-making; and play an enormous role in information consumption and perception formation by the public. However, its role in prosecutorial decision-making can be harmful in its actual impact, resulting in unjust outcomes based on race, and equally damaging in its perceived impact, distrust of the system. Both of which contribute to reduced public safety.
The third takeaway is what I will call mindfulness and intentionality. PRJ’s work used data to reveal that African American women received the most disparate treatment in the prosecution of drug-related crimes. Cases involving Black women were accepted for prosecution almost 100 percent of the time, whereas the office had an overall declination rate of 33 percent. Their cases also spent the longest time in the prosecution pipeline, compared to other cases with similar charges, which ended in dismissals approximately 30 percent of the time. The general thought was that most of those women were also associated with prostitution to feed their addiction and received more prosecutorial scrutiny. Naturally, PRJ had controlled for that factor.
Additionally, there were a significant number of cases involving white women to examine a comparison. When the leadership in the office of this jurisdiction was made aware of the overwhelming disparity in their prosecutions of black women charged with drug offenses, they never outwardly acknowledged that gender and race may have played a role. Black women who engaged in prostitution to support their drug addiction to crack cocaine were treated more harshly than white women with similar cases or where the drug was a different narcotic substance. But the fact that the disparity was eliminated within six months means that they were now paying attention to what may have been subconscious or implicit biases and were now being more intentional and fairer.
The fourth point concerning the role of a prosecutor should be the obligation to have an office that reflects the diversity of the communities they serve. I have heard countless times the familiar refrain, “I can’t find or retain prosecutors of color.” Folks, it’s not an impossible task! It can be a challenging task, and you must be committed to it. But it’s not impossible if you know how. And for anyone interested, speak with me! I am a past national president of the National Black Prosecutors Association, and we know how to help you do it!
We must discuss redefining the primary role and obligation of the prosecutor. We preach that “Justice is Blind” and oft invoke that famous quote from Berger v. United States about the prosecutor: “He may prosecute with earnestness and vigor…indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones.” In other words, the criminal legal system is an adversarial process. So, kick the crap out of your opponent--I mean, the accused--just don’t hit him below the belt. Now the promise of the adversarial system could be met, in terms of fairness and equity, if the pernicious factor of race was not present, i.e., if all the system participants were a homogenous population. But such is not the case.
Imagine a system where the prosecutor envisioned her role, not primarily as the chief law enforcement executive of the jurisdiction, to prosecute crimes to the fullest extent of the law, to extract the most severe sanction, whether by plea bargain or trial, but where she viewed herself as the Chief Public Safety Official? And the primary objective is to examine what result or disposition in each case might best protect the victim from further harm and restore him as close to his pre-victimization status as possible? Where the defining question is what outcome would hold the perpetrator accountable while enabling her to take part in the process of making the victim whole and lowering the risk of causing further harm? What outcome would best contribute to making the community safer?
If this were the definition and mission of the prosecutor, most offenses, particularly nonviolent crimes, would not result in lengthy incapacitation. There will always be those individuals who will work hard to earn their extended community exile and sequestration! Do you think this is an unrealistic fairytale? I simply retort that:
The time is now for courageous prosecutors to stop defining their role as merely treating the symptoms of what ails our society and to step boldly into a leadership role to address the social, educational, health, and opportunity racial inequities that are the root cause of the disease. Around the nation, there are prosecutors who are committed to this challenge and who understand that this is the pathway to safe and healthy communities—or in other words—Public Safety!
