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  • Annemarie Gregoire

Prosecutorial Discretion and its Impact on Racial Inequality in the Criminal Justice System

Updated: Oct 25, 2023

The disproportionate impact of mass incarceration on black communities has been widely recognized for years. Various causes of racial disparities in the criminal justice system have been evaluated, including “socioeconomic disadvantage and its consequences, disproportionate offending in certain categories of crime, and discriminatory treatment in the criminal justice system”. Research by the Sentencing Project found that “higher crime rates in black communities explain about 61% to 80% of black overrepresentation in prisons, meaning… other factors like racial bias or past criminal record influencing prison sentences, are behind… [roughly] 39% of the overrepresentation of black people in prisons”.

Prosecutorial discretion exists at various stages of the criminal process. Prosecutors make the initial determination of whether to prosecute an individual and what charges to bring. This charging decision affects all the subsequent stages of the criminal process. Professor John Pfaff found that “at least since 1994, the primary force behind prison expansion has been an increased willingness of district attorneys to file felony charges”, even though crime rates, arrest rates, and prison sentences per felony case were generally stable or decreasing. At the initial charging stage, prosecutors have an enormous amount of discretion that directly influences incarceration rates.

When making charging decisions, prosecutors consider factors like the prior criminal record of the defendant, including both convictions and prior arrests, and the victim’s interest. Prior records are used to assess a defendant’s criminal tendencies and likelihood of recidivism. However, race can affect the existence of a prior criminal record. Even in the absence of criminal tendencies, race influences law enforcement’s decisions to arrest and detain a suspect. Because of the differential enforcement of minority groups (including racial profiling, heavy policing of minority communities, and more), the existence or nonexistence of a prior arrest or conviction may not accurately reflect criminality in defendants. Additionally, the victim’s race has been shown to influence charging decisions. Cases involving black defendants and white victims receive more punitive charging decisions and more punitive outcomes at later stages of the criminal process than cases involving non-white victims.

Prosecutors also make recommendations to judges for either pretrial release or some amount of cash bail. The practice of cash bail inherently produces discriminatory results because it makes a defendant’s release dependent on whether the defendant has the money to pay for their release while their case is in process. When a defendant cannot pay their bail, they remain incarcerated until they either take a plea deal, or are convicted or acquitted of their charges. White defendants are more likely than black defendants to receive low bail amounts. Bail determinations significantly influence the final outcomes of cases because pretrial detention increases the likelihood that a defendant will plead guilty, and defendants “who are detained pretrial receive harsher sentences than people who remain home in their communities while their cases are pending”.

The vast majority of felony cases are resolved through plea bargaining, and prosecutors largely control the charges offered, the type of sentence and sentence length, and any conditions of supervision offered during plea bargaining with little to no oversight. A study of the New York County District Attorney’s office found that prosecutors were more likely to recommend that black defendants be denied bail compared to similarly situated white defendants, and that black defendants were more likely to receive a plea deal with more incarceration time than similarly situated white defendants. Additionally, the study found that prosecutorial discretion at every stage of the criminal process “found more severe outcomes for minority defendants compared to similarly situated white [defendants]”.

The need for more progressive prosecution has gained attention in recent years. Several potential solutions have been proposed to reduce prosecutorial discretion and to produce more equitable results for racial minorities who enter the criminal justice system. Prosecutors’ offices can institute solutions like implicit bias training, increased diversity, and racial impact studies. Some large-scale solutions include using alternatives to cash bail (i.e., risk assessment tools) and instituting guidelines for charging practices and plea deals to prevent overcharging and emphasize substitutes for incarceration. Kim Foxx has led the Cook County State’s Attorney’s Office, the second largest prosecutor’s office in the country, since 2016. Under Foxx’s leadership, Cook County prosecutors have pursued fewer felony charges and diverted more defendants in drug cases to treatment and counseling programs. The Philadelphia District Attorney’s Office, led by Larry Krasner, stopped seeking cash bail for certain low-level crimes in 2018. Krasner’s policy resulted in more defendants being released without owing money to the court, and the policy had no effect on recidivism or failure to appear in court. Prosecutors have the power to reduce racial inequality and improve the criminal justice system by evaluating the effects of prosecutorial discretion on racial minorities and reforming the way they prosecute crimes.


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