In America, the vast majority of criminal prosecutions end in plea bargains, giving prosecutors enormous discretion over which offenders are sent to prison, and how much of their lives they’ll spend there. And in states that elect prosecutors, almost none of the men and women making those decisions are black.
Sixty-six percent of those states have no minority prosecutors working at any level of their justice systems, according to a new study by the Women Donors Network, first obtained by The New York Times. In 2014, roughly 95% of elected state and local prosecutors across the country were white, and 79% were white men, the study found.
The study speaks to growing concerns over the racial disparities in American incarceration. While whites are over-represented in prosecutors offices, blacks are proportionally over-represented in U.S. prisons — African-Americans make up 13% of the U.S. population but 40% of its prisoners, according to the 2010 census.
During the summer of 2014, the justice systems of 14 states were staffed entirely by white elected prosecutors: Colorado, Connecticut, Delaware, Idaho, Maine, Montana, Nebraska, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington and Wyoming.
Kentucky and Missouri, which both employ more than 100 elected prosecutors, each had only one minority prosecutor on their payrolls.
The role that prosecutors play in perpetuating the racial disparities in American prisons has drawn increasing attention in recent months.
In May, The New Yorker’s Jeffrey Toobin profiled the district attorney of Milwaukee County as he worked to combat the influence of racial bias in his office’s decision-making. More than half of the African-American men between 30 and 40 years old in Milwaukee County had served time in state prison as of 2010, according to a study by the University of Wisconsin-Milwaukee. A more recent study by the Vera Institute suggested that prosecutorial discretion contributed to that disturbing statistic:
“According to the Vera study, prosecutors in Milwaukee declined to prosecute forty-one per cent of whites arrested for possession of drug paraphernalia, compared with twenty-seven per cent of blacks; in cases involving prostitution, black female defendants were likelier to be charged than white defendants; in cases that involved resisting or obstructing an officer, most of the defendants charged were black (seventy-seven per cent), male (seventy-nine per cent), and already in custody (eighty per cent of blacks versus sixty-six per cent of whites).”
In June of last year, Vera released a similar study on prosecutorial discretion in Manhattan, which found that black and Hispanic defendants were more likely to be held in jail before trial — and less likely to be offered plea bargains free of a prison sentence — than whites or Asians charged with the same crimes.
And there is abundant evidence that racial bias exerts a profound influence over the most consequential decision any prosecutor can make: Whether or not to seek the death penalty. Among that body of research is a 2007 study from the American Bar Association, which concluded that one-third of African-Americans on death-row in Philadelphia would have received sentences of life imprisonment if not for their skin color.
Bryan A. Stephenson, the founder of the Equal Justice Initiative, a group that provides legal services to poor defendants and prisoners, told The New York Times that he wasn’t surprised by the lack of diversity among American prosecutors.
“I think most people know that we’ve had a significant problem with lack of diversity in decision-making roles in the criminal justice system for a long time,” he said. “I think what these numbers dramatize is that the reality is much worse than most people imagine and that we are making almost no progress.”