A new report says that a stunning 95 percent of elected prosecutors in the U.S. are white and that more than 60 percent of the nation’s 50 states have exactly zero black prosecutors in office. The study found that, of the 2,437 elected prosecutors serving around the country, which includes officials at the state and local levels, just 61 are black—and of those, more than half are concentrated in Virginia and Mississippi. In 14 states, all elected prosecutors are white.
The study, based on a data set that was current as of last summer, was funded and published by the Women Donors Network, a philanthropic group with an interest in the representation of race and gender among elected officials. Their findings arrive at a moment when the American criminal justice system is under intense scrutiny for its role in crippling black communities through mass incarceration.
Much of the focus in the media and among politicians has been on police departments that target minorities, jails and prisons that ensnare the poor, and laws that impose harsh mandatory sentences on nonviolent drug offenders, but this new report is premised on the idea that the real power in the American justice system rests with prosecutors. In forceful terms, the report articulates something that some experts have been arguing for a long time: that elected prosecutors “decide whether to pursue a criminal case or not, whether a crime will be charged as a misdemeanor or a felony, and even whether prison time is served and how long.”
The near-total absence of black people from their ranks, according to the authors of the report, results in “systemic bias.” Changing the racial demographics among prosecutors, they argue, is the key to making progress on two of the biggest issues in criminal justice: shrinking the American prison population and holding police officers who use improper deadly force against unarmed black people accountable for their actions.
Why are there so few black prosecutors? To begin with, there are just not that many black lawyers: According to the American Bar Association, they accounted for just 4.8 percent of lawyers surveyed in the 2010 census (up from 4.2 percent a decade earlier). The reason so few of them become prosecutors, said Melba Pearson, president of the National Black Prosecutors Association, is that historically, black law students eyeing the job market with the hopes of helping their communities and combating injustice have believed that their best shot at doing so was to become defense attorneys. In that job, a person could use his or her legal expertise to aid the wrongly accused, fight for leniency on behalf of the accused, and generally act as an adversary to those in power. The prosecutor, Pearson told me, has been seen as “the means or the vehicle to oppress others—and why be part of the oppression?”
Pearson, who has been the assistant state attorney in the Miami-Dade State Attorney’s Office since 2002, said that one of the central goals of the National Black Prosecutors Association since its founding in 1983 has been to try to convince law students that they should see the profession differently and to make them realize that the power that prosecutors wield in the courtroom can be used to help black communities instead of harming them.
I asked Pearson how she and her colleagues make their pitch when they visit campuses and host job fairs. “The key is to emphasize that a prosecutor’s job is to do justice—it’s not just about putting people in prison,” she said. “It’s about looking at a set of circumstances and understanding to the best of your ability what happened and what’s the right thing to do.” Sometimes that’s going to mean putting the defendant in prison for life, she said. But other times it’s going to mean dismissing the case. The point is that, as a prosecutor, “you are the one who’s driving the decision-making process.”
Addressing the shocking racial disparities in our prosecutorial ranks is clearly imperative. But should we expect black prosecutors to behave differently than their white counterparts when dealing with defendants? Does the fact that someone is black necessarily mean that he or she is less likely to be overzealous in pursuing charges or coercive in negotiating plea agreements? It’s often said that black police officers tend to turn “blue” as soon as they become law enforcement agents, meaning they quickly absorb the culture of the department they’re working for and end up treating suspects no differently than any other officer. Would the same thing happen to a black prosecutor in a system that demands high conviction rates and rewards a “tough on crime” philosophy?
There’s no empirical data to cite here. But Brenda Choresi Carter, who worked on the prosecutors study for the Women Donors Network in her capacity as the director of the group’s Reflective Democracy Campaign, argued in a conference call with reporters on Tuesday that the system would work better and be less unjust if there were more prosecutors who shared the life experiences of the people they prosecuted. (She emphasized that this is true in terms of gender as well as race: As the report points out, 83 percent of elected prosecutors are men.)
“There are certain kinds of life experiences that one has when one is a woman or when one is a person of color … that simply are not the same as if you are a white person or a man,” Carter said. “So there’s no guarantee, of course, that more diverse prosecutors will result in a more fair system. But I think it’s a red flag to us and something that we need to grapple with as a society when the life experiences of the majority of the population are excluded from these powerful positions.”
Pearson said life experiences can translate into a wiser and, perhaps, more forgiving sense of justice. “I think all prosecutors have the ability to be fair, and I’m certainly not besmirching my brothers and sisters of other races—that’s not what I’m saying,” she said. “But what I am saying is that African-American prosecutors, based on their life experiences, may approach a case differently. They may be willing to give them a second chance if they deserve it. … They may be aware of certain nuances … or certain cultural norms that other prosecutors may not be aware of.” She added, “It’s about looking at the totality of the circumstances and saying, ‘OK, what led up to this? How did we get to this point?’ Not just about looking at someone’s rap sheet and saying, ‘OK, you’re just a bad guy, and that’s it.’ ”
Will recent news events make young black lawyers and law students more interested in pursuing careers as prosecutors? Might they see Baltimore’s black state’s attorney Marilyn Mosby moving swiftly to charge six police officers in the death of Freddie Gray as evidence of the need for more diverse prosecutorial ranks?
“I don’t think anybody is really going to say, ‘I’m becoming a prosecutor because I want to get bad cops,’ ” Pearson said. But, she added, it is possible that seeing the influence that a prosecutor like Mosby or Brooklyn D.A. Kenneth Thompson can have in a situation where race is an operative factor might prove inspiring.
“You see examples in the news of African-American prosecutors taking a stand and taking an active role in cases,” Pearson said. “People are really seeing the importance of what a prosecutor does … and as more people are educated about the prosecutor’s role, going forward you’re going to see more African-Americans taking that path.”
There are still major barriers to entry, however. “The culture of prosecution has been really hostile to people of color,” said Bryan Stevenson, founder of the pro bono legal services organization Equal Justice Initiative, during the conference call Tuesday. “You’ve got offices that have been run primarily by white men … and they’ve had priorities that did not serve communities of color, so I think there’s been real resistance in the black community to seeking positions as prosecutors.” The way to fix that, he said, is to get more black prosecutors into positions of power, from which they can affect a culture change that will make their offices more welcoming to other black people.
But it’s no easy task. Incumbent prosecutors defeat their challengers 95 percent of the time, according to research by Wake Forest University School of Law professor Ronald Wright. Creating opportunities for young black prosecutors to rise through the ranks is part of the challenge. Stevenson suggested that sitting prosecutors who are preparing to vacate their seats should name minorities in their offices as their interim successors, in an effort to help candidates gain a foothold and public recognition. Those candidates can, in turn, change the way their offices are run, by setting charging priorities for the prosecutors working under them, instructing them to put more black people on juries during jury selection, and act with more empathy and restraint during plea negotiations.
The fact that there are just 61 black elected prosecutors in this country matters—not just because it reflects a shamefully closed-off system, but because so much of what is broken about the modern American justice system—starting with the 2.3 million people currently in prison—is a consequence of prosecutorial discretion. The monopoly that white lawyers have had on exercising that discretion got us where we are. Busting that monopoly will be a crucial step in getting us out.