District Attorneys and Racial Disparities

People of color are disproportionately and negatively impacted by the criminal justice system. The racial disparities are staggering and well-documented.

People of color are more likely to be arrested.  As an analysis by USA Today using FBI statistics frames it, people of color are “more likely than others to be arrested in almost every city for almost every type of crime. Nationwide, black people are arrested at higher rates for crimes as serious as murder and assault, and as minor as loitering and marijuana possession.”

People of color are charged more harshly: Black men are more than twice as likely to be charged with an offense that carries a mandatory minimum sentence as white men facing similar circumstances, according to a study in the Yale Law Journal. Another study, published in Criminology, found that prosecutors are more likely to level “habitual offender” charges against people of color.

People of color are more likely to be incarcerated: People of color are more than five times as likely to be incarcerated in state prisons, according to research from the Research from the Sentencing Project.

Unfortunately, these disparities are not just a national problem. We see them in Oregon too.

Racial bias isn’t just a problem in other parts of the country.  Oregon’s criminal justice system is plagued by racially-motivated practices that treat people of color unfairly.

These statistics just scratch the surface.

Dispelling Myths about Racial Disparity:

Some law enforcement leaders will try and avoid responsibility by advancing the myth that people of color commit crimes at higher rates. The Oregon Criminal Justice Commission (CJC) did an excellent job dispelling that argument when examining the racial disparity of drug convictions in Oregon. The CJC looked at the disparate conviction rates for possession of controlled substance broken down by race. Then they looked at the national data on drug use broken down by race. What they found is that there is very little difference in drug use by race and whatever differences exist that can’t explain the huge disparities in arrests and prosecution.

Denial, Shock, Confusion – Some District Attorneys Deny the Problem

As the most powerful people in the criminal justice system, district attorneys need to acknowledge that our system is racially biased, and that these disparities exist.  The problem doesn’t get solved without a real commitment from leaders and stakeholders in the justice system. But unfortunately, many DAs have a history of ignoring the evidence, and responding with denial, shock, confusion, and finger pointing.

For example, when The Oregonian asked Clackamas County District Attorney John Foote about the startling disparities in heroin and methamphetamine convictions.  “I couldn’t see anything,” he said. “I took it back to the whole team. We don’t see a pattern.” While the Washington County DA, Bob Herman said he was surprised and was worried that the research’s sample size was too small to be useful.

Bias is real, both implicitly and explicitly.  Even the U.S. Supreme Court has acknowledged research on implicit bias showing that, despite our best intentions, unconscious prejudice affects all of us, molding our behavior in ways we are unaware of.  And sometimes racial disparity is indeed the result of intent. For example, a Georgia Supreme Court Case found that prosecutors violated the Constitution by proactively striking black jurors when the defendants were black.

The vast majority district attorneys and other officials within the criminal justice system intend to treat others with fairness and equality.  But our district attorneys and the prosecutors that work for them need to acknowledge that the racial bias exists to begin the process of fixing the disparities within our criminal justice system

DAs can help achieve reform

Aside from acknowledging that racial bias exists in our criminal justice system, here are some solutions that District Attorneys should take to address this issue:

District attorneys need to be advocates for change–not the hurdles to a better system.  As elected officials, district attorneys need to step up and be the leaders that we need.

Change is Possible: Profile of a Leader

Some District Attorneys are serious about working to reduce racial bias in the criminal justice system.  John Chisolm, district attorney of Milwaukee County in Wisconsin is working to tackle racial disparity head on. After a University of Wisconsin study showed disturbing rates of over-incarceration of African Americans, Chisolm wondered how his own office contributed to the problem.

The Milwaukee district attorney recognized that the problem was how prosecutorial discretion was being used, which also meant they could do something about it. Chisolm took leadership in tackling the problem. He worked to develop a series of screening processes that allow prosecutors to be more thoughtful in their decision-making and also developed an early intervention program designed to divert people from moving deeper into the criminal justice system. He provided more oversight for junior staff, and continued to look at the data to track their progress.

District Attorney Chisolm also adopted a refreshing philosophy about the role of his office. He recognized that in order to build safe and healthy communities, prosecutors can’t simply play the role of processing cases that law enforcement brings to them. That won’t make us safer and can often make our criminal justice problems worse. And given the long term damaging collateral consequences of justice system involvement, some offenses don’t make sense to prosecute at all.

The number of African American residents of Milwaukee County sent to prison on drug charges has been cut in half since 2006. Although there is more work to be done in Milwaukee, John Chisolm’s office is a good example of what it looks like when a district attorney tries to proactively tackle racial disparity within the system and take accountability for the problem.