The Vera Institute of Justice study “revealed” that “the prosecutorial practices of the Manhattan district attorney’s office, one of the biggest and busiest in the country” weren’t quite as colorblind as most New Yorkers might have hoped.
The two-year study, conducted by the Vera Institute of Justice at the request of Cyrus Vance Jr., who took over as district attorney in 2010, found a pattern of racial disparities at multiple stages of the criminal justice process.
Even after controlling for factors like the seriousness of the charges and a defendant’s criminal history, blacks and Latinos were more likely than whites to be denied bail and more likely to be offered a harsher plea deal involving time behind bars. Blacks were also slightly more likely to be sentenced to prison than whites. When the charge was a misdemeanor drug offense, black defendants were 27 percent more likely than whites to get a plea offer that included incarceration.
This surprised some. Others, not so much.
When it comes to plea bargains, which is how the vast majority of criminal cases get resolved, the answer is fairly clear: Manhattan prosecutors consider a defendant’s prior arrests when making an offer. This is standard practice, and on its face it is race-neutral. But since blacks are more likely to come from heavily policed neighborhoods, where even minor arrests are a fact of life, they are more likely to face plea offers that involve jail time.
While priors are certainly a significant factor in bail and plea determinations, and given that almost no one gets away from the ‘hood without having been tossed a few dozen times along the way because that’s where police make their numbers, race-neutral alternatives are hard to come by.
In a letter to the editor in the New York Times, Martha Rayner, who teaches at the Fordham Law School criminal defense clinic, tries to tackle the problem:
While implicit racial bias plays a large role in this disparity, this is not a bias that can be easily righted. And it is one that permeates the system — police, corrections, court personnel, defense and judiciary have no less implicit bias than prosecutors.
This is unfortunately very true. We are all, to some extent, complicit in a system rife with implicit racial bias, though our relative roles in this system bear significantly upon how that plays out.
The extraordinary volume forces prosecutors to make bail recommendations and plea bargain offers by formula rather than through informed decision-making. And implicit bias is particularly acute in an environment where there is pressure to make quick decisions with little information.
This may overstate the problem more than a bit. The volume today is a fraction of what it was ten years ago, and a fraction of what it was ten years before that. Sure, there is volume, but it’s not extraordinary. Just the opposite. It’s routine.
Nor is there acute pressure to make quick decisions. It’s just not that hard, nor that pressured, that the three minutes required to read a rap sheet, ponder the crimes charged and circumstances, and arrive at a bail request and/or plea offer, is unavailable to the assistant district attorney.
Contrary to what may appear to the unwary at arraignment, the file is sent in with a note that includes recommendations from the prosecutor who wrote up the complaint. She’s had plenty of time to give it thought and arrive at a proper recommendation. If the recommendation is overbearing, it’s not because of time pressure, but because of the sensibility of the prosecutor. Don’t blame the system for a prosecutor’s bad and biased decision.
Which brings us to a problem more intractable and problematic than suggested by Rayner. The decisions are made by prosecutors, usually young, a bit too married to the righteousness of their job and their own infallible brilliance, infatuated with cops and almost wholly lacking in real world experience. To put it another way, we’ve put a loaded gun in the hands of children and are now surprised by their inability to handle it properly.
Consider that young assistants have the wealth of experience gained by a middle-class, suburban upbringing, living in the comfort of white neighborhood where they may have come across a couple of black kids, who similarly enjoy a suburban lifestyle. They move on to liberal arts colleges, where they are taught to appreciate diversity with the caveat that they need only read about the underbelly of urban reality in books and the occasional slide show. From there, it’s law school. And these days, likely a very good law school, as a job in the Manhattan DA’s office isn’t an easy gig to get.
That’s who is charged with making decisions about the future for a kid whose world consisted of 168th Street and St. Nicholas Avenue. Think of all the things they have in common.
As much as a defense lawyer can try to explain to a young assistant why the entirety of their worldly experience doesn’t quite match the world of a defendant, that their paradigm for good and evil doesn’t fit the world of kids who get thrown against the wall on their way to school, or whose school consists of a series of punishments interspersed with threats and drugs, they don’t get it. They are absolutely certain they do get it, and they don’t get it.
They cannot get it. There is nothing in their world even close to the life of a young black or Hispanic man. And still, they insist they get it. Every prosecutor is a genius. They know everything there is to know, including that the efforts by defense lawyers to help them to grasp a foreign world is just smoke and mirrors to try to confuse them and throw them off their game. They know that we’re just trying to spin their heads in circles to save our clients. They know better than to listen to the enemy.
Until we figure out a way to get the children in charge of making these decisions to open their minds, expand their experiences from the tiny little world of the entitled dilettante to the broader world of a person with far more authority than capability, the bias will permeate their decisions. You can’t blame them. They don’t know any better. They’re just sheltered, entitled kids. Kids with the power to destroy other people’s lives.