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February 03, 2023

Prosecutors confront ugly repercussions of bias

The pervasive problems with racism in our criminal justice system has been clear. Black Americans are incarcerated in state prisons at nearly five times the rate of white Americans.

The systemic racism in the system starts before the first contact and continues through charging decisions, plea deals, conviction, sentencing recommendations, incarceration, release and beyond.

A Feb. 3 program at the American Bar Association 2023 Midyear Meeting in New Orleans looked at one area where unfairness can be found: prosecutorial biases.

The program, sponsored by the ABA Section of State and Local Government Law, featured two defense attorneys representing both trial and appellate perspectives.

Daniel S. Harawa, an associate professor of law at Washington University in St. Louis, directs the appellate clinic and conducts research on the intersections of race, civil rights and criminal law, and whether adequate process is afforded to criminal defendants.

He described prosecutorial bias simply: unreasoned or unfair judgment or pre-judgment based on nonrelevant characteristics.

The second panelist, Kevann A. Gardner, has practiced for more than 10 years serving indigent clients in felony and misdemeanor cases and is currently a supervising attorney in the Trial Division of the Public Defender Service for the District of Columbia. Gardner pointed out that everyone has biases and, for most people, these biases are unconscious; but because of the power prosecutors have over people’s lives and freedom, they have a greater responsibility to examine these biases.

Harawa discussed the ample degree of discretion given to prosecutors, but noted that statistics on white and Black defendants show that prosecutors charge Black Americans more harshly, offer worse plea deals and seek more severe sentences.

“Discretion is disproportionately worse for Blacks,” Harawa said.

Gardner stressed the importance of such statistics and studies in this area, because without them, many prosecutors would not even recognize these biases. Looking at each case individually, Gardner said, does not provide a broader view that demonstrates how Blacks are getting harsher punitive outcomes.

The panel, which was moderated by Sydney Jakes, a senior attorney at the Law Offices of Samuel Jakes Jr. LLC, in Clarkston, Georgia., explored how prosecutorial discretion is a good thing, but that bias with a whole lot of discretion gives prosecutors a lot of control over people’s lives. Harawa evoked Spiderman, saying “with great power, comes great responsibility.”

Addressing the problem, the panel agreed, requires accountability and oversight, but unfortunately, too often that only happens after something terrible occurs. “Hard looks come after dysfunction,” Harawa admitted.

Gardner explained that sometimes, prosecutors just want to win and believe they are doing the right thing, bringing justice to a victim or victim’s family. But Harawa said that prosecutors need to take a more “holistic” approach to the whole process. They need to be the gatekeepers that ensure the process is fair and the playing field is level. Without a fair fight, Harawa added, you cannot really achieve justice.

“The ‘ends justify the means’ should not be a philosophy that a prosecutor should have,” Gardner added.

Prosecutorial bias is an important element in the whole picture of criminal justice reform. While addressing your personal biases may be uncomfortable, it is necessary to move forward. Gardner said that is why the system is generally talked about instead of the biases of individuals.

Harawa stressed the need to “destigmatize the concept of bias.” People, he said, get their guard up when bias is mentioned. We all have biases so we should all be open to the idea of examining them, he said.

Given the wide discretion and key role prosecutors hold in the criminal justice system and the great sway they have over a defendant’s life and liberty, there needs to be scrupulous attention paid to biases in the system, the two said.

In many cases, prosecutors are self-regulating and need to be vigilant not only in high-profile cases, but even more importantly in the lower-level cases that get less scrutiny.

Overall, the panel agreed that prosecutors have great power and discretion in our system and need to be open to exploring and checking any biases. Doing this is the only way that the process can be fair and justice can be served.