Even unbiased prosecutors perpetuate racial disparity through longstanding policies and practices

Evidence

As we saw from the previous section, there is little realization that prosecutors can cause racial disparities or exacerbate the disparities they inherit. I argue that, even most non-biased prosecutors can contribute to racial disparities. Prosecutors follow numerous laws, policies, and practices, many dating back decades. Some of these may contribute to disparities. The infamous crack versus powder cocaine sentencing law disparity is a powerful example. Risk assessment tools, the proliferation of which we have seen in recent years, are another example of how policies may trigger unintended racial disparity. When these tools are based on prior arrests, some of which may be the result of biased arrest practices, prosecutors can introduce disparity without even being aware of it. Understanding how disparity can metastasize in the CJS helps prosecutors challenge those practices and implement appropriate reforms. … First, prosecutors can influence police arrest practices by simply refusing to file certain cases brought to their attention. Prosecutorial offices that file nearly all cases brought to them do not help improve police performance and may, in fact, give the green light to continuing business as usual, no matter how biased. If prosecutors file more than 90 percent of cases brought to them by the police, they automatically approve arrest and evidence gathering practices, good or bad. This means prosecutors are not doing their job as guardians of justice and impartiality. I think this is the type of balance of powers prosecutors should worry about, rather than worrying about whether they are stepping on the legislative branch’s toes by introducing new policies. And, to clarify what was discussed above, the executive branch does in fact issue more policies than legislators, and it is up to prosecutors to decide what to prosecute. We simply cannot prosecute every case, so case prioritization should be the norm rather than the exception. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 607

Categorization

• QUESTION: The claim that simple filing decisions count as a form of prosecutorial power over police — worth checking how refusal-to-file is or isn’t used in practice in specific jurisdictions.
• XREF: Connects to the broader prosecutorial discretion literature and to plea-bargaining critiques of the American CJS.