Bloomberg Law
May 4, 2023, 8:00 AM

Discriminatory Policy Pinned on Wall Should Shock All Prosecutors

Kay Levine
Kay Levine
Emory University School of Law
Ronald  Wright
Ronald Wright
Wake Forest University School of Law
Marc Miller
Marc Miller
University of Arizona Law

It recently came to light that prosecutors in Jefferson County, Fla. have a policy to offer people of Hispanic origin harsher plea deals than people of other ethnicities. This policy hangs on the wall in the office.

Defendants of color and their attorneys have long complained of maltreatment in the criminal courts. They have argued that they receive higher bail amounts—or are denied bail altogether—when White defendants are freed from custody. They have claimed they get worse plea offers from prosecutors, or harsher sentences after trial from judges, for the same crimes that White defendants commit.

Because many prosecutorial decisions are made behind an impenetrable veil, these complaints largely fell on deaf ears. This peek behind the curtain should be a wake-up call for prosecutors to take measures to ensure they are exercising their discretion fairly.

For the past few decades scholars have shed light on discrimination, using statistical techniques to uncover racial disparities throughout the justice system. They have documented the racialized impact of bail decisions and sentencing decisions. They have identified racial patterns in which defendants get offers of diversion (compared to full prosecution) and which defendants receive parole while others remain behind bars.

Famously, scholars and defense attorneys have taken their evidence of racial bias to the US Supreme Court. In a death penalty case arising out of Georgia, scholar David Baldus and his co-authors established that people who kill White victims are more likely than people who kill Black victims to receive the death penalty, even when all of the features of the crime and the accused’s criminal background are comparable.

In a 1987 case whose importance is not fully appreciated, the Supreme Court found these aggregate data were not enough to prove an equal protection violation.

The response from prosecutors to this evidence has largely been a collective shrug. They say they handle each case individually on its unique facts. If aggregate patterns arise, that’s too bad, but it must be because of other offices, or other prosecutors.

Moreover, they say if defendants of color are receiving harsher bail terms or harsher sentences, it must be because they have significant criminal histories, or because they used weapons that white defendants didn’t. (Data contradicts all these claims.) Finally, prosecutors say, even if those patterns are true, this is all unintentional. It’s not as if you have proof that anyone does it on purpose.

That claim—about the absence of evidence of prosecutors discriminating intentionally—has largely been true. Until now.

A search of the Jefferson County office database reveals this policy was created in 2022, and that it applies to misdemeanors—low-level crimes that subject a person to at most one year in county jail.

Who knows how many people in Jefferson County have been the victims of this flatly unconstitutional and bigoted policy? How many people of Hispanic origin have been prosecuted by this office and received harsher sentences simply because of their ethnicity? How many extra days in jail did they serve, relative to non-Hispanic defendants?

The elected prosecutor now claims that the harsh treatment directed at “Hispanic” defendants under this policy was merely a clumsy shorthand for “undocumented residents.” Is the data available to test whether these sudden and convenient claims reflect the actual practices in Jefferson County? Are prosecutors asking for citizenship records of all arrested persons at the time they file charges? If so, is the office seeking harsh sentences against Europeans who overstay their visas, as well as against people of Hispanic origin?

The whistleblower who revealed this office policy should be honored. The Jefferson County court should require new trials or pleas for all defendants who have been affected. And prosecutors around the country should ask whether the decisions, patterns, and practices in their offices are truly just and equal.

Do they have policies that they would be proud to pin on their office walls?

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Kay Levine is professor at Emory University School of Law.

Ronald F. Wright is the Needham Yancey Gulley Professor of Criminal Law at Wake Forest Law.

Marc L. Miller is the Dean & Ralph W. Bilby Professor of Law at University of Arizona Law.

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