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Racial Disparities In Justice Demand 'Seismic Shift' In Prosecutions

High-profile indictments have put a spotlight onto a profoundly influential aspect of the criminal justice system: prosecutorial discretion. Each year, more than 2.3 million felonies and 10 million misdemeanors are handled by over 2,300 individual prosecutor’s offices.

These crucial decisions are largely made outside public scrutiny. Prosecutors control secret grand jury proceedings, determine who will face prosecution, and decide the specifics of charges. They operate within a labyrinthine legal framework, armed with the threat of lengthy mandatory minimum sentences. This creates strong incentives for defendants to admit to lesser charges, even for crimes they did not commit.

More than 90% of both federal and state court cases are resolved through plea bargaining. Critics question whether this power is wielded too selectively, undermining the right to a fair trial, fostering mass incarceration, and eroding public faith in equal justice.

Black defendants disproportionately bear trial penalties (the risk of receiving a harsher sentence for exercising one’s right to trial), overcharging, and over-prosecution.

A study found that Black individuals received sentences nearly 10% longer than their similarly situated white counterparts, a disparity linked to prosecutor charging decisions. The initial charging process has a significant influence on individual case outcomes.

A new study aimed to highlight the implications of this decision-making process and the effects of the charging process on a defendant’s race, write Howard Henderson, Kiana Henley and Tri Keah Henry for the Brookings Institution.

Their study showed that defendants who were formerly charged without grand jury involvement were more likely to be convicted than those who were indicted by grand juries. This trend became even more pronounced in the case of Black and Latinx defendants.

Prosecutorial decision-making considers multiple factors during the charging process, including offense type and severity. The study highlighted persistent disparities in the criminal legal system that disproportionately impact Black and Latinx defendants.

"When swayed by stereotypes, such as perceived criminality, prosecutorial decisions become the crucible in which the fates of Black and Latinx defendants are sealed," write Henderson and his colleagues.


Black defendants who were formerly charged without a grand jury, despite being more likely to be convicted, were also more likely to be granted deferred adjudication.

This was not the case for Latinx defendants, despite the increased likelihood of case dismissal for this group when charged without a grand jury indictment. These findings underscore not only the significant influence of case processing decisions on case outcomes but also the disparate ripple effects of these decisions across different groups.

The Brookings writers make these recommendations:

--For minor offenses and individuals who are likely to receive deferred adjudication, diversion at the preliminary hearing should be the default course of action.

--Legal representation should be made available from the onset of early case processing, including during charging decisions.

--Transparency in the early-case processing outcomes, including the charging phase, should be significantly increased. This bolsters public trust and confidence in the criminal justice system.

--Thorough research should be conducted to understand the extent to which charging decisions are influenced by police behavior. Such an examination would not only shed light on potential biases and practices that need rectification but also inform evidence-based policies that promote equitable outcomes.

The authors contend that reforming the prosecutorial system is "an urgent imperative ... This is not about making incremental adjustments or tweaking the system; it is a clarion call for a seismic shift in our prosecutorial decision-making framework ... We must galvanize our collective will and engineer a prosecutorial system that embodies unassailable justice—a justice unaffected by the variables of race, ethnicity, or economic status. Inaction or complacency is a luxury we cannot afford."


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