A recent study illustrates just how racially skewed the U.S. criminal justice system is with respect to its most powerful participants: prosecutors.

Of 2,437 elected state and local prosecutors holding office in 2014, 95 percent were white and 79% were white men, according to data released by the San Francisco-based Women Donors Network (WDN).

Considering that white males make up just 31 percent of the U.S. population, the paucity of black and Hispanic prosecutors is telling; prosecutors have been empowered by state legislatures to act all but autonomously in determining the fates of hundreds of thousands of criminal defendants, most of whom are disproportionately black and Hispanic.

“The tremendous power and discretion in the hands of prosecutors, combined with the concentration of those positions among one demographic group, virtually guarantees inequality in our criminal justice system,” said Brenda Chores-Carter, director of WDN’s Reflective Democracy Campaign, in a written statement.

The data, compiled by the nonpartisan Center for Technology and Civic Life, indicated that 14 states – Colorado, Connecticut, Delaware, Idaho, Maine, Montana, Nebraska, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington and Wyoming – had exclusively elected white prosecutors in 2014. In two other states, Kentucky and Missouri, all but one of more than 100 elected prosecutors were white.

Of the states that elect prosecutors, from district attorneys to state attorneys general, 66 percent have none who are black.

“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,” said Bryan A. Stevenson, founder of the Montgomery, Alabama-based Equal Justice Initiative, which offers pro bono legal assistance to poor defendants and prisoners. “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.”

Stevenson argued that changing the numbers isn’t as simple as electing more diverse prosecutors, because 85% of incumbent prosecutors nationwide, according to one study, run unopposed and are being elected to long tenures in office. Sitting prosecutors will need to either make diversity a priority or, said Stevenson, legal entities such as state bar associations will have to step in to help change the existing system.

According to Kenneth Montgomery, a black former prosecutor for the Brooklyn, New York district attorney’s office, any effort to recruit people of color into prosecutors’ offices will require shifts in the perception of prosecutors – particularly the perceptions of those in black and Hispanic communities.

“Prosecution is about locking black people up,” said Montgomery, who is now a high-profile defense attorney and critic of law enforcement. “[As a prosecutor], you’re only doing what police officers and policies dictate and allow you to do. And the policy is to focus on certain communities.”

“I thought that because of who I was,” Montgomery told Slate.com, “because of the street and academic smarts I had, I was able to do some things that were more in line with justice. But, it was like putting a Band-Aid on a gunshot wound. In the long run, I didn’t think it was worth it, so that’s why I left.”

So how do racial disparities among prosecutors play out in our nation’s criminal justice system? Two studies – undertaken with the cooperation of prosecutors in Manhattan and Santa Clara County, California – provide some clues.

As reported by the San Jose Mercury News, in October 2016 the Santa Clara County District Attorney’s Office released a report that contained some alarming numbers related to prosecutions from 2013 to 2015.

According to the report, 50 percent of defendants charged with resisting arrest during that time period were black; 14 percent of those arrested for the same offense were Hispanic. Further, the report noted that Hispanic defendants accounted for 44 and 46 percent of felony and misdemeanor prosecutions in the county, respectively, while Hispanics comprised 26 percent of the county’s population. Blacks accounted for 11 and 9 percent of felony and misdemeanor prosecutions, respectively, though they comprised just 3 percent of the county’s population.

Whites, on the other hand, accounted for 24 and 27 percent of felony and misdemeanor prosecutions – while composing 33 percent of the county’s population.

Coverage of the report by the Mercury News did not mention whether the racial composition of the district attorney’s office or of local law enforcement agencies had been addressed in the study.

As reported by the New York Times, in July 2014 the Vera Institute of Justice released a report that presented an analysis of more than 220,000 concluded prosecutions (including all misdemeanors and some felonies, including drug offenses) handled by the Manhattan District Attorney’s Office between 2010 and 2011.

The report’s findings bore out patterns of apparent racial bias in policing and prosecutions. For example, they found that blacks received jail or prison sentences for misdemeanor drug offenses with 27 percent greater frequency than their white counterparts. Similarly, Hispanics received prison or jail sentences as a result of drug offenses at a rate 18 percent higher than whites.

The Vera Institute report also showed distinct differences in how prosecutors handled cases along racial lines; for example, 40 percent of black and 36 percent of Hispanic defendants were offered plea bargains for misdemeanor offenses that included jail time, while whites were offered such deals just 3 percent of the time.

The New York Times’ coverage of the Vera Institute report did not disclose whether the authors had examined the racial composition of the district attorney’s office or law enforcement agencies, but the results – like those of the WDN and Santa Clara County studies – are perfectly clear.

Sources: www.slate.com, www.nytimes.com, www.theatlantic.com, Women Donors Network, www.wholeads.us, www.mercurynews.com, The New York Times

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