Prosecutorial Discretion And Racial Profiling

Introduction

The topic of prosecutorial discretion is of immense importance within the context of racial profiling due to its relevance in the lives of American citizens, especially people of coloured races. Prosecutorial discretion is the power of a prosecutor to charge a person for a crime and assist in the filing of criminal charges, which in the United States results in racial disparities. Over the last few decades, research in prosecutorial discretion has shed light on different aspects of the causes and effects pertaining to racial profiling. However, the legislative measures put people of coloured race at a disadvantage position vis-à-vis members of the ‘White’ race. My interest in the topic supplements my curiosity as a student of criminal law to understand the causes and effects of prosecutorial discretion within the context of racial profiling.

Literature Review

Davis’s (1998) research analyzes Mr McKnight’s legal case and deduces two factors associated with the case, that is, a killer gets away with homicide, and the killer is of a ‘white’ race. The outcome of McKnight’s legal case is reflective of racial profiling in the United States criminal justice system, where the ‘White’ race has a relative advantage over coloured races due to the majority composition in the national population pie. On the other hand, Chin and Vernon (2014) highlight radical objectivity and racial profiling in the case of “Whren v. United States,” and title it “reasonable but unconstitutional”; furthermore, it concludes that the case was decided ‘wrongly.’ Additionally, Howell (2014) mentions two significant problems facing criminal justice that result in over-policing with policies of zero-tolerance for minor offences, which includes substantial racial disparities and undermining of procedural justice. Over-policing produces a higher number of cases at lower criminal cases, which persecutes coloured individuals belonging to poor urban neighbourhoods. However, Levine (2018) argues that the courts have the ability and authority, through the adaptation of rules based on ethics, to effectively exercise ‘disciplinary review in charging decisions’ within the disciplinary process. Nevertheless, Lo’s (2017) research findings based on empirical evidence for sentence length suggest that the role of prosecutorial discretion is critical in the creation of racial disparity. The increase in racial profiling incidents throughout the United States is reflective of limitations in the U.S. criminal justice system.

In the absence of the ‘prosecutorial discretion’ factor in research analysis, racial disparities within the U.S. judicial system can mislead policymaking in favour of restricting judicial discretion. Henceforth, racial disparities in the processes of criminal justice have adverse effects on sentence lengths. In a similar way, Lu (2006) states that policymakers and advocates of pursuing racial justice in the imperfect criminal justice system of the United States emphasize that federal prosecutors need to take caution pertaining to the racial effects in practice, along with caution in discretionary decisions. Consequently, limiting the effect of law enforcement policies that are race-neutral, along with a reduction in the treatment of racial disparity. Additionally, Shermer and Johnson (2010) argue that criminal prosecution and the role of the persecutor with ‘extra-legal characteristics’ increases the likelihood of charge reduction while increasing the disparity for coloured races with compound disadvantages. Furthermore, Tuttle (2019) utilizes empirical evidence from drug mandatory minimum sentencing (federal) and the phenomenon of racial disparity in the U.S. criminal justice system. The findings of Tuttle (2019) reflect on the effect of the Fair Sentencing Act (2010) on the persecution of crack-cocaine cases at 280g, previously at 50g, with a minimum mandatory threshold of 10 years; and the increase places Hispanic and Black offenders in a disproportionate manner. The author explores the causes of racial disparities in sentencing within the context of racial discrimination through prosecutorial discretion and explains the increase in racial disparity almost completely due to state-level (racial animus) measures.

Defence Paper

Criminal Justice System and Citizens of the United States

The importance of prosecutorial discretion and racial profiling in the U.S. criminal justice system highlights the higher likelihood of coloured races receiving higher sentences, and the relaxation in sentencing lengths also affects adversely increasing racial profiling, especially placing people of colour in poor-urban spatial proximity. The U.S. criminal justice system requires effective policing and prosecution while keeping into account the inclusive and distributive nature of justice delivery to the diverse population living in the United States. The United States is the land of opportunity, and its status as the country with the most incarcerated people (Wildeman and Wang, 2017) attempts to reduce the well-being of the minority populations at the cost of providing an undue edge for the ‘white’ population. In recent decades, many cases with a ‘white’ race guilty party managed to get away with the charges, while the percentage of the population guilty of low-level crimes overburdens the U.S. criminal justice system and increases the burden on the lower courts.

Issues, Problems, or Policies

Prosecutorial discretion in the United States is the primary cause of racial profiling in the United States, and it is evident from numerous cases in courts. For instance, McKnight vs. United States (Davis 1998) highlights the element of race, that is, the ‘white’ race of McKnight, whereby the person guilty of murder is discharged of the homicide charge. In other words, people of colour are in a disadvantaged position vis-à-vis the ‘white’ majority. In a similar way, ‘Whren v. United States’ is another instance whereby Chin and Vernon (2014) argue that the decision was ‘wrong;’ however, the reasonability of the judgment can also be viewed as unconstitutional. U.S. criminal justice system has its weaknesses, and Howell (2014) sheds light on the two significant problems of over-policing with a zero-tolerance policy for offences that are of minor nature. First, it increases the burden on lower courts of the criminal justice system, which is supplemented with the second problem of persecuting individuals of colour races in an ‘unequal’ manner, although justice is defined as ‘blind’ because it is supposed to be unbiased. Consequently, tough policy on minor crimes also increases the likelihood of coloured people ending up in jail for a significantly higher sentence length when compared with ‘white people.’

Propose Changes to the Issue, Problems, and Policies

Lack of emphasis on the role of ‘prosecutorial discretion’ deprives researchers of the ability to understand racial disparities in the criminal justice system of the United States, and the resulting policies also lack emphasis on ‘prosecutorial discretion’ role in reducing racial profiling levels. The misleading nature of U.S. criminal justice policies also results in favouring restrictive judicial discretion, which has negative consequences in the form of sentence length for individuals, especially individuals of coloured races, living in poor urban dwellings. Lu (2006) emphasizes cautionary measures on the part of the federal prosecutor for the racial effects at a personal level in legal practice. Taking caution in discretionary decisions allows federal prosecutors to utilize the power and resources to guide the policy for equitable distributive justice. Pursuing race-neutral policies is at the core of ‘discretionary decision’ making power, while Shermer and Johnson (2010) argue ‘extra-legal characteristics’ of persecutor in the criminal prosecution process, which consequently increases the likelihood of a reduction in criminal charges, but in practice negatively impacts the disparity levels between races of colour. Additionally, policing, like Fair Sentencing Act (2010) increases the threshold from 50g to 280g for a 10-year minimum mandatory sentence, which also impacts people of coloured races disproportionately. However, Tuttle (2019) suggests that the rise in racial disparity within the criminal justice system owes to the racial animus measures at the state level.

References

Chin, G. J., & Vernon, C. J. (2014). Reasonable but unconstitutional: Racial profiling and the radical objectivity of Whren v. United States. Geo. Wash. L. Rev., 83, 882.

Davis, A. J. (1998). Prosecution and race: The power and privilege of discretion. Fordham L. Rev., 67, 13.

Howell, K. B. (2014). Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System. Geo. J. Legal Ethics, 27, 285.

Levine, S. J. (2018). Disciplinary Regulation of Prosecutorial Discretion: What Would a Rule Look Like. Ohio St. J. Crim. L., 16, 347.

Lo, K. (2017). The role of prosecutorial discretion in creating racial disparities in sentence length.

Lu, L. D. (2006). Prosecutorial discretion and racial disparities in federal sentencing: some views of former US Attorneys. Fed. Sent. R., 19, 192.

Shermer, L. O. N., & Johnson, B. D. (2010). Criminal prosecutions: Examining prosecutorial discretion and charge reductions in US federal district courts. Justice Quarterly, 27(3), 394-430.

Tuttle, C. (2019). Racial disparities in federal sentencing: Evidence from drug mandatory minimums. Available at SSRN 3080463.

Wildeman, C., & Wang, E. A. (2017). Mass incarceration, public health, and widening inequality in the USA. The Lancet, 389(10077), 1464-1474.