D. Racial Disparities in Prosecutorial Decisions
The Sentencing Guidelines were promulgated primarily to eliminate discriminatory practices in sentencing individuals after trial. However, before there is a criminal trial and ultimately sentencing, individuals must first be charged with a crime. This responsibility rests with state and federal prosecutors. The Sentencing Guidelines have in effect moved the capacity for discrimination from judges to prosecutors. There are concerns that prosecutorial discretion and plea bargaining practices might “reintroduce unwarranted sentencing disparities into the criminal justice system.” These concerns, as will be shown, are amply justified.
The prosecutor has broad discretion to determine what crime the defendant will be charged with, if charged at all. Of course, a lesser charge normally results in a lesser penalty--i.e., a lesser jail term. The prosecutor also has unbridled authority to plea bargain a case allowing the defendant(s) to admit to a lesser offense and avoid trial in lieu of a more severe charge with a trial. How this presentencing process impacts African-Americans has been the topic of a number of studies.
One leading statistical study conducted to determine whether the race of the victim was a factor prosecutors considered when determining whether to proceed with the severest charge available under the law revealed that when the victim was white, prosecutors were more likely to seek full prosecution. Indeed, in high profile cases where the defendant is black, the prosecutor is more likely to pursue the greatest penalty; this often involves the death penalty in homicide cases where the victim is white. A study of homicide defendants conducted in Florida further supports the thesis that prosecutorial decisions are often impacted by racial bias. The courts' acceptance of such discriminatory conduct on the part of prosecutors sanctions the use of disparate treatment at other stages of the criminal justice system. It also supports the argument that the justice system values the lives of whites more than the lives of African-American males. Such an unconscionable decision by the prosecutors should violate the Equal Protection Clause if the prosecutors' decisions were racially motivated.
In another study investigating whether felony charges initiated against blacks, whites, and Hispanics are more or less likely to be rejected by prosecutors, the results indicated that disparity existed against blacks and Hispanics. Various other studies support this finding of a disparity between whites and blacks as to when charges are filed and pursued by prosecutors.
Aside from the issue of prosecutorial discretion, the racial makeup of the prosecutor's office may also impact how charges are pursued against African-American defendants. The typical prosecutor's office is predominately staffed by young white male attorneys. The power of prosecutorial discretion is wielded “almost exclusively [by] the hands of white males.” State prosecutors are elected officials. Thus, they have the continuous burden of illustrating to the public that they are “tough on crime” in order to get reelected. Prosecuting drug dealers in the African-American community gives prosecutors immediate news coverage. A similar scenario is found at the federal level. A lack of representation of African-Americans in the prosecutor's office gives the appearance of and likely leads to, a lack of sensitivity to the needs of the African-American community.
