THE BLOG

Prosecutorial Racial Bias Review

09/03/2009 03:53 pm 15:53:07 | Updated May 25, 2011

With the increased attention paid in recent weeks to race relations between police and citizens, we must remember that law enforcement does not end at the police station. While police departments and courts have come under intense scrutiny for racial bias, and have increasingly been subject to oversight by outside entities, District Attorney's Offices must also guard against racial bias in prosecutorial decisions. Public prosecutors should be rigorously examining their own practices in order to ensure that they are not affected by conscious or unconscious racial bias - and acting quickly and effectively to make changes if necessary. Doing so will build trust with the communities we serve by demonstrating that we are committed to impartial justice, and that we are not afraid to shine the light of truth on ourselves.

We must answer the question: are the decisions of Manhattan prosecutors racially neutral? Or does race play a role in prosecutors' decisions regarding bail, when to press charges, when to offer plea bargains, and the severity of sentences?

The District Attorney's Office should begin by conducting an internal evaluation, guided by experts such as the Vera Institute of Justice. Vera has worked successfully with DA's Offices in Milwaukee, Charlotte, and San Diego to evaluate racial disparities in prosecutorial decisions. As DA, I will ask Vera to partner with the Office in a rigorous analysis, both statistical and human, to discover where any racial bias might be harbored inside this influential Office. The District Attorney must then swiftly undertake the appropriate steps - which are often surprisingly simple - to resolve any issue.

This approach works, and the Manhattan DA's should not be hesitant to adopt best practices from prosecutors' offices around the country. In 2007, John Chisholm, District Attorney of Milwaukee, made an initial review of information provided by VERA, and the news was promising: Milwaukee prosecutors chose to prosecute white and non-white defendants at approximately the same rates overall. But when Chisholm delved further into the data, he discovered striking racial disparities. For example, for the misdemeanor charge of possession of drug paraphernalia (a charge usually leveled against addicts rather than serious criminals), white defendants were prosecuted only 59 percent of the time, while non-white defendants were prosecuted 73 percent of the time. A similar gap could be seen in prosecution rates for first time possession of marijuana and cocaine.

In response, Chisholm directed prosecutors to view drug paraphernalia possession less as a criminal offense than as evidence that the offender had a drug problem. Prosecutors were asked to refer these individuals to treatment programs rather than prison whenever possible. Those who still wished to press charges had to seek approval of a supervisor. None of these changes was drastic, and none of them dealt directly with race, but data collected after these steps were implemented showed the prosecution rates for white and non-white defendants for drug paraphernalia charges had become effectively equal.

We can draw important lessons from the experience of Milwaukee, a city which sees a similar number of crimes to New York County. First, we cannot be afraid of self-examination. Milwaukee's internal investigation ultimately made the Office seem more trustworthy. Second, the District Attorney's must aggressively collect and analyze data, as racial disparities may not be obvious at first glance. It is not enough to be concerned that our techniques might be racially biased; we must have the hard numbers to tell us exactly which steps in the process are vulnerable to racial disparities and which groups are affected. Finally, and most importantly, we must recognize that change is possible. The techniques applied by Chisholm were simple and inexpensive, yet they solved a serious problem and effectively eliminated racial disparities.

These steps are simple, but they are not inevitable. As Chisholm himself said: "Even though equal treatment of similarly situated individuals is a fundamental value of the criminal justice system, too many people--including prosecutors--are reluctant to have a truly open conversation about the influence race might have on those decisions."

If law enforcement proves that we are willing to examine our own biases, the public will have greater confidence that we will always act impartially. The shame is not in finding that we have unconscious biases or that our current policies have a disproportionate racial impact - the shame lies in refusing to ask the questions and correct the problems. If we can build the public's trust in our own impartiality, then when we are confronted by a difficult case with strong racial implications, the public will know that our decisions are fair and impartial. We must dare to know - for only by knowing our own biases can we rise above them.

Cy Vance is a candidate for New York District Attorney.