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Prosecutorial Discretion and Racial Profiling


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

Literature Review

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

In the absence of ‘prosecutorial discretion’ factor in research analysis, racial disparities within U.S. judicial system can mislead the policy making in favor of restricting judicial discretion. Henceforth, racial disparities in the processes of criminal justice has adverse effect on sentence lengths. In the similar way, Lu (2006) states that policy makers and advocates of pursuing racial justice in an imperfect criminal justice system of United States, which emphasizes 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 reduction in the treatment of racial disparity. Additionally, Shermer and Johnson (2010) argues that criminal prosecution and the role of persecutor with ‘extra-legal characteristics’ increases the likelihood of charge reduction, while increasing the disparity for colored 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. Findings of Tuttle (2019) reflects on the effect of Fair Sentencing Act (2010) for persecution of crack-cocaine cases at 280g, previously at 50g, with minimum mandatory threshold of 10-years; and the increase places Hispanic and Black offenders in disproportionate manner. Author explores 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.

Defense Paper

Criminal Justice System and Citizens of United States

The importance of prosecutorial discretion and racial profiling in the U.S. criminal justice system highlights the higher likelihood of colored races receiving higher sentences, and the relaxation in sentencing lengths also affects adversely in increasing racial profiling, especially placing people of color in poor-urban spatial proximity. 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. United States is the land of opportunity, and its status as the country with most incarcerated people (Wildeman and Wang, 2017) attempts to reduce the wellbeing of minority population at the cost of providing undue edge for ‘white’ population. In the recent decades, many cases with ‘white’ race guilty party managed to get away with the charges, while the percentage of population guilty of low-level crimes overburdens the U.S. criminal justice system, and increasing burden on the lower courts.

Issues, Problems, or Policies

Prosecutorial discretion in United States is the primary cause of racial profiling in United States, and it is evident from numerous cases in courts. For instance McKnight vs. United States (Davis 1998) highlights on the element of race, that is ‘white’ race of McKnight, whereby the person guilty of murder is discharged of the homicide charge. In other words, people of color race at a disadvantaged position vis-à-vis ‘white’ majority. In the similar way, ‘Whren v. United States’ is another instance whereby Chin and Vernon (2014) argues 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 zero-tolerance policy for offenses that are of minor nature. First, it increases the burden on lower-courts of criminal justice system, which is supplemented with the second problem of persecuting individuals of color 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 colored people to end-up in jail for a significant 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 criminal justice system of United States, and the resulting policies also lacks emphasis on ‘prosecutorial discretion’ role in reducing racial profiling levels. The misleading nature of U.S. criminal justice policies also results in favoring restrictive judicial discretion, which has negative consequences in the form of sentence length for individuals, especially individuals of colored races, living in poor-urban dwellings. Lu (2006) emphasize on cautionary measures on part of the federal prosecutor for the racial effects at personal level in legal practice. Taking caution in the discretionary decisions allows federal prosecutor to utilize the power and resources in guiding the policy for equitable distributive justice. Pursuing race neutral policies are at the core of ‘discretionary decision’ making power, while Shermer and Johnson (2010) argues ‘extra-legal characteristics’ of persecutor in the criminal prosecution process, which consequently increases the likelihood of reduction in criminal charges, but in practice negatively impacts the disparity levels between races of color. Additionally, policing like Fair Sentencing Act (2010), that increases the threshold from 50g to 280g for 10-years minimum mandatory sentence, which also impacts the people of colored races disproportionately. However, Tuttle (2019) suggest that the rise in racial disparity within criminal justice system owes to the racial animus measures at state-level.


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 Ethics27, 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 Quarterly27(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 Lancet389(10077), 1464-1474.



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