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The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion


Robert J. Smith


University of North Carolina School of Law

Justin D. Levinson


University of Hawaii at Manoa - William S. Richardson School of Law

April 24, 2012

Seattle University Law Review, Vol. 35, No. 795, 2012

Abstract:     
The disproportionate incarceration of minorities is one of the American criminal justice system’s most established problems. In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of criminal justice persist. The numbers are stark and clear: one out of every twenty-nine black adult women and men are currently incarcerated compared with only one out of every 194 whites. But less clear are the causes of these disparities. For decades, scholars have struggled to understand why America prosecutes and incarcerates minorities at such massive rates. Perspectives on this troubling issue cover an incredibly wide range of themes, spanning from racist discussions of “biological differences” to thoughtful considerations of structural racism. A scientific revolution, however, has generated new interest with regard to how upstanding people — including judges, jurors, lawyers, and police — may discriminate without intending to do so. This implicit bias revolution has created new opportunities to empirically investigate how actors within the legal system can perpetuate discrimination in ways that have been — until now — almost impossible to detect.

The idea that prosecutors might be partially responsible for propagating inequality in the criminal justice system is far from new. Until now, however, it has been difficult to explain in detail why prosecutors — the vast majority of whom would never intend to hold double-standards based on race — might nonetheless be unwitting propagators of bias. From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a plea bargain be offered or negotiated? Which prosecuting attorney will prosecute which alleged crime? What will the trial strategy be? Will minority jurors be challenged for cause or with peremptory challenges? What sentence will be recommended?

This range of discretion offers a starting point from which to investigate how implicit bias might infect the prosecutorial process. In this Article, we examine implicit bias in the daily decisions of prosecutors, focusing on prosecutorial discretion points and specifically connecting each of them to implicit bias. We argue that implicit racial attitudes and stereotypes skew prosecutorial decisions in a range of racially biased ways. We then conclude by suggesting possible avenues for future research and considering potential remedies aimed at reducing the impact of implicit racial bias on prosecutorial decision-making.

Number of Pages in PDF File: 32

Keywords: implicit racial bias, IAT, criminal justice, prosecutor, Brady

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Date posted: April 25, 2012  

Suggested Citation

Smith, Robert J. and Levinson, Justin D., The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion (April 24, 2012). Seattle University Law Review, Vol. 35, No. 795, 2012. Available at SSRN: http://ssrn.com/abstract=2045316

Contact Information

Robert J. Smith (Contact Author)
University of North Carolina School of Law ( email )
Chapel Hill, NC 27599
United States
Justin D. Levinson
University of Hawaii at Manoa - William S. Richardson School of Law ( email )
2515 Dole Street
Honolulu, HI 96822
United States
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