Prosecutorial Discretion

“While people of color make up about 30 percent of the United States Population, they account for 60 percent of those imprisoned (American Progress).”

“One in three black men can expect to go to prison in their lifetime (American Progress).”
After reading these statistics one may ponder the questions raised on behalf of the minority population challenging the legitimacy of the modern day Criminal Justice System. These are just two of many statistics, which will be discussed later, supporting the claim of the minority population that there are issues in the current system; specifically with regard to prosecutorial discretion and racial disparities in sentencing amongst the American people.

Prosecutorial Discretion is defined as the authority of the Prosecutor to decide who to charge with a crime, what charges to file, when/if charges will be dropped, whether a plea bargain will be offered, and how to utilize prosecutorial resources such as preemptive strikes. Furthermore, in states where the death penalty is in effect the prosecutor ultimately decides whether one potentially lives or dies based on the charges they choose to file. With this, one can grasp the magnitude of the power at the finger tips of the Prosecutor and see how issues can arise as a result of: unintentional or intentional bias opinions, poor ethical decisions in regard to job responsibilities, and essentially the abuse of authority towards different races.

Opinions are something that every person has and is entitled to have. This creates somewhat of a gray area in the American legal system when addressing the prosecutor’s perception of the defendant and the specific crime he/she is being accused of and also the oath a lawyer takes to fight for justice according to the law regardless of personal opinion. Granted we are all human and sometimes have emotions we cannot suppress and here’s where things get complicated. Let’s say the prosecutor, or someone close to the prosecutor, experiences a rape by a black man. When/If another black man is arrested for sexual assault is that not going to hit a nerve within the prosecutor and possibly influence what charges will be filed? Whether a plea bargain will be offered, and if not, would a white man have been offered one in the same situation? How high to set bail, if any? This type of situation occurs numerous times everyday in the courts and because there is no definitive answer to these questions, this could unlawfully and negatively impact the defendant’s case based on racial profiling.

In addition to the legal factors that have been used for decades in the decision making process, extra legal factors (age, race, gender) are also used in deciding how to proceed with a case in the modern day era. The prosecutor’s discretion for when and how to use extra legal factors in decision making negatively impacts minorities in a few different ways. Studies confirm the notion that minorities are treated differently than whites throughout the judicial process. Black and Hispanic defendants were treated less favorable than white defendants by the prosecution in regard, but not limited to, higher bail amounts and reduction of charges. According to the textbook “ whites (68%) are more likely to be released on bail than blacks (62%) (Citation 156).” This statistic may not scream racism to the average person but it does show a disparity in prosecutorial discretion and as a result can negatively impact a minorities case because if imprisoned they cannot utilize resources and ultimately properly prepare for their case.

After extensive data collection and analysis it was found that “18% of persons jailed pending trial because they could not afford bail were acquitted where as 48% of persons released on bail were acquitted (Citation 143)” confirming the issue of prosecutorial discretion negatively affecting the cases of minorities. Furthermore, whites were also significantly favored when it came to reducing charges, “one-third of whites who started out with felony charges had their charges reduced to misdemeanors, while African Americans and Hispanics only received this benefit 25% of the time (citation 155).” With this, we begin to start seeing trends in prosecutorial discretion and how different races are handled and treated in the Criminal Justice System. In attempt to give the American Legal system the benefit of the doubt a deposition was taken from a criminal justice authority figure to address the issues pertaining to disparities in prosecutorial discretion. On the contrary to what kind of response one may expect from a criminal justice authority figure, he confidently stated: “If a white person can put together a halfway plausible excuse, people will bend over backward to accommodate that person.

It’s a feeling, ‘you’ve got a nice person screwing up,’ as opposed to the feeling that ‘this minority person is on track and eventually going to end up in a state prison.’ It’s an unfortunate racial stereotype that pervades the system. It’s an unconscious thing (Citation 155).” Not only does this further justify the issues with prosecutorial discretion when speaking on the use of extra legal factors in decision making, but it also touches back on the point mentioned previously discussing the expression of intentional or unintentional biased opinions. The criminal justice authority figure put it perfectly, “it’s an unconscious thing.” Parallel with the issues underlying prosecutorial discretion there are also many flaws in the sentencing phase of the judicial process resulting in negative impacts to minority defenses. Problems for minorities is sentencing stem from, but are not limited to: prosecutorial discretion, ineffective assistance of council, jury selection, and racism by jurors.

The common denominator amongst all the reasons just stated appears to be the ineffective assistance of council. As a result of low income for the majority of the minority population it is unrealistic for them to hire private attorneys and in turn are provided with a public defender. On one hand this appears to be a good thing because they are being represented and defended by an attorney at no cost. With that being said, however, the data and statistics argue public defenders may not be as helpful as portrayed. It is estimated that public defenders handle 80-90% of criminal cases while the prosecution has twice as many lawyers, seven times the amount of investigators, and a significantly larger budget allowing them to utilize crucial resources in constructing a strong case. As a result of the inferiorities in public defense, minorities are more vulnerable and subject to unnecessary pretrial detentions, wrongful convictions, excessive and inappropriate sentencing, and pressure to accept a plea bargain.

The public defenders office is assigned more cases than they can handle and this leads to short cuts being taken by both the prosecution and the defense in an attempt to speed the court process up and essentially keep the “less serious” cases moving to create time for the “more serious” cases. This is an issue that negatively affects minorities when it comes to sentencing because the representation is not looking out for the best interest of their defendant. Plea bargains decide 96% of all criminal cases that are filed. The plea bargain system has replaced our reliance on principles of justice, such as: right to counsel, trial by jury, and the right to have a judiciary apply punishment that fits the crime. With both public defense and prosecution pressuring defendants to accept plea bargains whether it’s due to the seriousness of the offense or just to keep the system moving; it cheats the defendant out of what the Constitution guarantees every American, they’re innocent until proven guilty and the right to trial by jury. In the jury selection process minorities are underrepresented because they receive fewer summonses than whites, have transportation issues to and from the courthouse, have child care issues, and have employment issues specifically dealing with employers who pay an hourly wage being unsupportive of jury service.

As a result of these barriers, a minority defendant is already at a disadvantage before he even gets to the courthouse. Touching again on prosecutorial discretion, in the voir dire process, the prosecution and the defense now have the power to strike jurors using preemptory challenges or challenge by cause on the basis of a juror having a biased opinion or not being able to deal with the dire issues at hand. It has been said that preemptory challenges have been used, largely in part, based on race. One can now see how this can become problematic for minority defendants. Blacks were most likely to me removed from the jury based on medical issues, body language, unemployment, education level, and manners. In fact, in big cities such as Philadelphia, all of the district attorneys were given clear instructions to strike all non-white jurors (Citation 157). Any reasonable person can see how these treatments create racial disparities in sentencing and negatively impacting a minority case. With all of that being said, it is unfair to the Criminal Justice system to say they have not taken drastic steps to try and fix some of the issues with prosecutorial discretion and disparities in sentencing.

Presumptive Sentencing Guidelines were adapted in the 1970’s and based sentencing decisions on varying aspects of the crime and the offender’s history. There is generally a sentencing committee or commission who make the recommendations for the guidelines. The guidelines take into account the severity of the offense and the offender’s prior criminal record. If the judge deviates from the specified sentence well then they too are required to justify they’re decision. In 1997 The Truth in Sentencing Act was implemented and awarded funds to states that kept their offenders, specifically those who committed violent offenses, in prison for at least 85% of their sentence. Mandatory minimum sentences were created in the 1970’s to address the drug dealing and violent crimes with guns epidemic. All in all I think the handful of policies just explained set the Criminal Justice System moving in the right direction. Without sentencing guidelines and mandatory minimum sentences there would be too much freedom with sentencing and I believe the abuse of authority would be inevitable.

The Truth in Sentencing Act is a great policy because it keeps the individuals who are harmful and potentially harmful to others off the streets and makes America a safer place by keeping them locked up for the sentence they earned. They deserve to be rewarded with monetary substance. In conclusion, based on the data and statistics used to analyze the trends of the Criminal Justice System as a whole it is evident and unarguable that not all races are treated the same whether it be under prosecutorial discretion or disparities amongst sentencing. The minority population has a valid point when claiming there are flaws in the criminal justice system that impacts them in a negative fashion and it is proven via The Uniform Crime Reports, the National Crime Victimization Surveys, etc. With all that being said the criminal justice system is striving to move forward and work out these kinks because everyone in America is created equal and should be treated that way.