Too Great Expectations

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.

16 comments on “Too Great Expectations

  1. Roger

    At the beginning of the trial of a young, smooth, good-looking, middle class date rapist we were prosecuting the young, smooth, good-looking middle class female prosecutor who was trying the case with me said that this was a tough one for her, because the defendant reminded her of so many guys she went to high school with. I told her this was about the first case we had worked on together where the defendant didn’t remind me of someone I went to high school with. I’m not sure this problem is fixable. When your only experience with the poor is pointing your finger at them while asking a jury to make them pay for the hideous thing they did, you’re not likely to develop much understanding.

  2. lawrence kaplan

    How about not letting anyone serve as a prosecutor until they have served some time as a CDA?

    1. Alex Stalker

      I’m sure the quality of representation defendants receive when represented by a wanna-be prosecutor “putting in her time” as a defense attorney in order to get the job she really wants locking people up would be very high.

      1. SHG Post author

        Details. Cop ’em out and go “oh damn,” when you drink your beer. No one will ever know.

    2. SHG Post author

      Or spend a week in jail. Or know what a gang rape in the shower feels like. Or know what its like to lose your job, your apartment, your car, your children. There’s a long list of things that go into experience.

      1. Charles B. "Brad" Frye

        I think, sometimes without justification, that I can tell when a prosecutor has some life experience. The plea recommendations seem more thoughtful and there is some flexibility toward attaining the goal of resolution beyond merely “moving the case.” I know for myself that spending one night in the Harris County Jail (traffic ticket FTA warrant) makes me move a little quicker to arrange a client’s bond and release, as every hour is precious to the incarcerated. The latest example of a young prosecutor arrogating to himself the power to determine the course of my client’s life occurred today : felony DWI, range of punishment 2-20 (3rd offense, no bodily injury accident, 3x limit BAC), and the first offer was “2 years pen time, today only.” That progressed to “four years pen time, open for a week” ( which would be three weeks before docket call). Failure to accept would result in “no offer,” the ADA to advocate for twenty years in the pen.

        Sounded an awful lot like a game of numbers, designed not to obtain a just result, but to bludgeon my client into submission. The young ADA has experience moving his docket, but not in understanding the devastation of a trip to the penitentiary.

        Brad Frye

        1. APOM

          I’m sure the young ADA is bright enough to understand the devastation wrought by a trip to the penitentiary. My fear is that he ignores those consequences because he really doesn’t give a shit what happens to these people – and that his blindness is condoned, if not encouraged, by his bosses. That’s outrageous – and inhumane.

          1. SHG Post author

            There are a wealth of problems. It’s neither binary nor simplistic. There is no “the problem.” Your concerns aren’t necessarily wrong, but they reflect other problems that are not the subject of this post.

      2. John Barleycorn

        Yet another reason the back pages of SJ should have a tune dump thread.

        Think of all the fun you could have with virgin readers.
        Linking them to the cavern of tunes when appropriate.

        You could even make it mandatory listening while they spend a few days getting up to speed with your archives.

        I am currently conflicted…a scratchy Maggie’s Farm cover, Red Hot Chili Peppers, Swedish Punk Rock, or some Harry Nilsson could all work right now.

        P.S. I am very disappointed no one has suggested home body cams for prosecutors.

  3. Jesse

    I’m sure this ground has been covered before, but one suggestion towards remedying this problem is perhaps to require attorneys to serve time in the public defender’s office prior to being selected for prosecutor? Something along those lines. Nobody should be allowed that kind of power without having been on the other side of the table first.

    1. bill

      Well, i realize this is OT but the real fix for the problem would be to have every prosecutor agree not to prosecute anyone for any crime they ever engaged in that they weren’t busted for and ignore prior history item for item for the same offenses. If they were all honest and didn’t love benefitting from double standards they’d have a different job, but you get the point.

  4. bill

    I’m pretty sure every *every* 20 something prosecutor has seen each season of The Wire. They may have spent the summer smacking down shots in Ibiza but as long as they know who said “You want it to be one way, but it’s the other way”, they clearly know what it’s like to be a underprivileged minority.

  5. Craig

    I see a lot of focus on assumption that prosecutors don’t understand what is going on.
    I suppose that to be problem for some but I see lot of problem in the nature of the system that advancement for them people is based on conviction and not on discovering the truth of anything.
    Myself thinks that the adversarial system is FU when coupled with so much incentive to win by any means one can get away with.
    I have met a couple of lawyers and prosecutors who I thought might have some personal integrity they have not surrendered. None is ever going to become judge or move far up any career ladder.

    1. SHG Post author

      Issues with integrity and ethics are a separate issue, and not the subject of this post. I realize the view may be muddled from the outside, but the reason lawyers who are actually involved may see it differently than people who can only see it from the outside is that there are many problems, each of which is worthy of independent discussion.

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