Race, Prediction & Discretion
Brigham Young University - J. Reuben Clark Law School
April 5, 2012
81 George Washington Law Review 157 (2013)
Many scholars and political leaders denounce racism as the cause of disproportionate incarceration of black Americans. All players in this system have been blamed including the legislators who enact laws that disproportionately harm blacks, police who unevenly arrest blacks, prosecutors who overcharge blacks, and judges that fail to release and oversentence black Americans. Some scholars have blamed the police and judges who make arrest and release decisions based on predictions of whether defendants will commit future crimes. They claim that prediction leads to minorities being treated unfairly. Others complain that racism results from misused discretion. This article explores where racial bias enters the criminal justice system through an empirical analysis that considers the impact of discretion and prediction.
With a close look at the numbers and consideration of factors ignored by others, this article confirms some conventional wisdom but also makes several surprising findings. This article confirms what many commentators have suspected — that police arrest black defendants more often for drug crimes than white defendants. It also finds, contrary to popular belief, that there is little evidence to support the belief that drugs are linked to violent crime. Also, judges actually detain white defendants more than similarly-situated black defendants for all types of crimes. The important and surprising findings in this article challenge long-held conventions of race and help mitigate racial disparity in criminal justice.
Number of Pages in PDF File: 66
Keywords: race, prediction, judges, police, bias, prejudice, criminal justice, incarceration, violent crime, drug crime, war on drugs, black, racismAccepted Paper Series
Date posted: April 5, 2012 ; Last revised: February 3, 2013
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