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.”