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It’s long past time for U.S. prosecutors to recognize the role they have played in perpetuating racial inequality in the justice system, and to “lead the charge” in reforming it, according to a paper produced by the Institute for Innovation in Prosecution (IIP) at John Jay College.

“Every action that a prosecutor’s office takes is colored by this country’s historical record of oppressing racial minorities,” said the paper, the latest in a series of think pieces released by the IIP aimed at reimagining the role of the prosecutor in local communities.

Their report, released amid a nationwide groundswell of support for justice reform, was co-authored by Angela J. Davis, a law professor at the American University Washington College of Law; David Noble, a former communications associate for the National Network for Safe Communities; and John Chisholm, District Attorney of Milwaukee County in Wisconsin.

The authors said prosecutors should take advantage of the enhanced data capabilities now available and, the growing opportunities for partnerships among all stakeholders of the justice system, correct longstanding racial disparities in prosecutorial outcomes, and rebuild vital relationships with communities of color and other vulnerable populations.

“Prosecutors wield significant discretion and should therefore lead the charge in creating a system that is fair for all individuals,” the paper said.

The authors wrote that contemporary prosecutors should keep three objectives in mind:

  • Reimagine the role of prosecution in democratic society;
  • Produce public safety while reducing harm to communities and individuals from the justice system; and
  • Address the historical legacy of racial inequality and structural injustice that have stubbornly persisted in different forms in the U.S. for centuries.

The report stresses that today’s prosecutors, law enforcement, researchers, and advocacy organizations should work together to collect data from procedural points where prosecutors have broad discretion: case intake, bail, charging, plea recommendation, and sentencing.

“Before devising strategies that will effectively address disparities, prosecutors should analyze current decision-making at key discretionary points and use these data to determine if certain practices are contributing to racially disparate outcomes,” the paper said.

“This process should also encompass a thoughtful examination of internal and external office policies around these practices. The primary objectives of such an investigation are to pinpoint the institutional contributors to disparities; examine how prosecutors are utilizing discretion; and ultimately institute necessary changes in policy and practice.”

Focus on Racial Impact of Daily Decisions

In other words, prosecutors’ offices can begin the search for racial disparities with daily policy decisions that are under their control, such as whether a case is recommended for a diversion program or prosecution.

Importantly, the report invites prosecutors to examine the racial impact of decisions made based on seemingly race-neutral considerations, such as determining whether to accept a case based on prior court interactions.

The report argues that considerations such as prior convictions create a racial disparity in case intake because communities that are historically over-policed will show on average more prior offenses than other communities.

This often leads to higher case intakes for the same over-policed communities, resulting in a self-fulfilling feedback loop.

Prosecutors should also harness data collection and analysis technologies to measure future case intake and impacts, including the demographic characteristics of defendants, types of charges filed, outcomes of charges, the percentage of victims who were previously defendants, and the number of juveniles processed in the system, the paper said.

They should then make the information readily available and actively share it with their communities, according to the report.

This broad dissemination and democratization of the data could serve as the basis for meaningful partnerships between prosecutors’ offices and their constituencies.

These potential partnerships stand to increase community trust that local prosecutors are “ready, willing, and able to deliver justice in a fair manner based on community standards of safety, equity, and wellness.”

The report cites two national examples of such community-prosecutor partnerships.

In Milwaukee County, the District Attorney’s office has created a “community prosecution model consisting of a partnership with residents, other criminal justice stakeholders, and community organizations.”

“Within this model, prosecutors help address quality of life issues and discuss public safety concerns with community members,” wrote the authors.