Sunday Commentary: Report Finding 95% of Prosecutors Are White Punctuates Inequality in System

Marilyn Mosby, Baltimore state's attorney is one of the nation's few black prosecutors (AP Photo/Alex Brandon)
Marilyn Mosby, Baltimore state’s attorney, is one of the nation’s few black prosecutors (AP Photo/Alex Brandon)

Last summer, following the death of Michael Brown, it was reported that while two-thirds of Ferguson residents are black, 95 percent of the officers are white.

The Washington Post  reported, “Across the country, this racial imbalance is not rare. Fifty years after the Civil Rights movement called attention to the under-representation of minorities in police departments, the pattern is still widespread. More than three quarters of cities on which the Census Bureau has collected data have a police presence that’s disproportionately white relative to the local population. Meanwhile, in more than 40 percent of cities, blacks are under-represented among police officers, a Washington Post analysis of Census data revealed.”

This week, a report found 95 percent of elected prosecutors in the U.S. are white and that more than 60 percent of the nation’s 50 states have exactly zero black prosecutors in office. Of the 2,437 elected prosecutors serving around the country, which includes officials at the state and local levels, just 61 are black—and of those, more than half are concentrated in Virginia and Mississippi. In 14 states, all elected prosecutors are white.

Think about this: we have a system of predominantly white police officers arresting predominantly and far disproportionately people of color, who are then prosecuted almost exclusively by white prosecutors.

Studies have found that people of color make up about 60 percent of all those incarcerated with nearly half of all prisoners in custody for nonviolent offenses.

Whether one believes that the system is justified or not, the disproportionate numbers lend a lot of credibility to the idea expounded by Michelle Alexander (author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness) and others, that the system itself has become the New Jim Crow. There is a disproportionate confinement of largely young, black males, and the accompanying penalties for felony status – checking the felony box, ineligibility to vote, serve on juries, receive forms of public assistance or get employed – have produced and perpetuated a huge underclass.

We also see a disconnect in the system. For instance, last December, an NBC News/Marist College poll found that 52 percent of whites say they have a “great deal” of confidence that police officers in their community treat blacks and whites equally – 11 points higher than in September and the highest trust in history.

For African-Americans, “Just 12 percent express a great deal of confidence in local police’s equal treatment of blacks and whites — a number that is squarely within the 10-to-17-point range in previous surveys. Only one-third have at least a ‘fair amount’ of confidence in their neighborhood police, compared with 78 percent of whites.”

An article in Slate this week points out, “Much of the focus in the media and among politicians has been on police departments that target minorities, jails and prisons that ensnare the poor, and laws that impose harsh mandatory sentences on nonviolent drug offenders.”

However, as we have noted in the course of our Court Watch project – focusing on wrongful convictions and prosecutorial misconduct, “the real power in the American justice system rests with prosecutors.”

As the researchers point out, elected prosecutors “decide whether to pursue a criminal case or not, whether a crime will be charged as a misdemeanor or a felony, and even whether prison time is served and how long.”

As American University law professor Angela Davis wrote in a 2015 Op-Ed in the New York Times, “Prosecutors are the most powerful officials in the criminal justice system. They decide whether criminal charges should be brought and what those charges should be, and they exercise almost boundless discretion in making those crucial decisions. Prosecutors alone decide whether to offer the defendant the option of pleading guilty to reduced charges. When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers.”

She adds, “The lack of transparency in the prosecution function also leads to misconduct, like the failure to turn over exculpatory evidence — a common occurrence made famous by the prosecutors in the Duke lacrosse and Senator Ted Stevens cases.

“We live in a democracy in which we hold accountable those to whom we grant power, but we have fallen short when it comes to prosecutors. State and local prosecutors are presumably held accountable through the electoral process, but few voters know enough about the prosecution function to make a meaningful decision at the ballot box,” she writes.

Moreover, even if the voters were paying attention, 85 percent of prosecutors run for election unopposed.

The question is why aren’t there more black prosecutors? Slate Magazine writes, “To begin with, there are just not that many black lawyers: According to the American Bar Association, they accounted for just 4.8 percent of lawyers surveyed in the 2010 census (up from 4.2 percent a decade earlier). The reason so few of them become prosecutors, said Melba Pearson, president of the National Black Prosecutors Association, is that historically, black law students eyeing the job market with the hopes of helping their communities and combating injustice have believed that their best shot at doing so was to become defense attorneys. In that job, a person could use his or her legal expertise to aid the wrongly accused, fight for leniency on behalf of the accused, and generally act as an adversary to those in power. The prosecutor, Pearson told me, has been seen as ‘the means or the vehicle to oppress others—and why be part of the oppression?’”

There are also, of course, questions as to whether reducing racial disparities would change the system. Slate notes, “It’s often said that black police officers tend to turn ‘blue’ as soon as they become law enforcement agents, meaning they quickly absorb the culture of the department they’re working for and end up treating suspects no differently than any other officer. Would the same thing happen to a black prosecutor in a system that demands high conviction rates and rewards a ‘tough on crime’ philosophy?”

A follow up article by Slate interviewed Kenneth Montgomery, who worked for the notorious Brooklyn DA’s office from 1997 to 2001 as an assistant DA. He would end up becoming a defense attorney.

He said, “I found most of the black people were—and I hate to use the term—they were there as window dressing.” He continued, “A lot of them get in there and drink the juice… Meaning they would forget that race has a tremendous impact on law enforcement. And they didn’t really see the correlative effects of racism and prosecution work. The majority of them were indifferent about it.”

The bottom line here is that the system appears to be like this: people of color get arrested by white officers and are prosecuted by white prosecutors at rates disproportionate to their share of the population. How is this going to result in anything other than distrust in the system?

The perception issue may be resolved by hiring more black police officers and prosecutors, but in a way, without systemic change, even that is like putting a band-aid on a gunshot wound.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. PhilColeman

    My first reaction to this report was that this had no similarly relevancy here in California. Women and minorities are well represented in the California Bar and I based this on casual personal observation. Non-white males I know–friends, relatives, neighbors–who chose law as a career. Then, there was personal observations of law school classes. They resembled United Nations gatherings.

    Perceptions are often wrong, and this is the case here for me. A 2012 California Bar Journal article:

    notes there has been a noted increase in female attorneys in California, but African-American attorney figures are close to the national norm. Small.

    Speculating on this disparity can embrace the notion that racial bias is to blame. Proving it or refuting it, as per normal in such debates, is so terribly difficult to establish. That aside, there are other issues that have statistical backing and contribute to the discussion why persons of color are under-represented in California Law.

    The law is not nearly as financially lucrative as commonly believed. Particularly in California, and especially in urban areas, we have a glut of practicing attorneys who have small client workloads that translate to moderate income at best. Many attorneys turn away from the law to other more lucrative and less demanding professions. A qualified African American in ANY professional endeavor is highly coveted. Why choose a profession that is already over-populated and in fierce competition with each other? I wonder if law school enrollments by minorities have declined.

    Narrowing this to the legal specialty of prosecution, this is not a financially lucrative field to apply one’s legal talents. The same applies to the role of Public Defender. Neither have monetary compensation comparable to the corporate world or private practice. There’s where you will find concentrations of attorneys of color. These folks are bright, they follow the money, just like white folk.

    With all that, the premise that persons of color in the criminal justice system are relatively few in number is accurate, and will always give rise to racial prejudice be it true or not, provable or not. We also have a stable of starving writers who need a topic to publish. And this one is always available, one small redeeming virtue found there.


  2. Frankly

    I watched a new report a few weeks ago about the California Highway Patrol being under-represented in African Americans.   I remember this bit of new “reporting”, because it wasn’t until the end that they interviewed the CHP brass and we got to hear the frustration in all the effort they were putting into trying to reach out and recruit African American candidates, only to have the common experience of unreported criminal records coming to light, or a higher than average of candidates that just failed to show up for the first day of academy, or the higher than average number that dropped out before completing the training.

    I was driving last night in a south Sacramento neighborhood that is over-represented in poor and black residents.  In a 3-4  mile stretch, in which there were seemingly hundreds of people milling about… walking, driving, riding bikes… I experienced a level of obvious disregard for traffic laws that I had never experienced before.  Cars running red lights and stop signs, cars speeding and illegally passing other cars, bikes crossing right in front of oncoming-traffic causing the cars to have to apply breaks and with the bike rider staring down the drivers as if challenging them.  The same from pedestrians.  Crossing just as the light turns green and causing the cars to have to wait while the pedestrians stare down the drivers.

    It was a clear demonstration of menace and disregard for rules and laws.

    Driving home on the freeway, I reflected on what I just experienced and if any of it was reflective of any personal hidden racial bias.  Because most, if not all, of the people I observed breaking the laws and staring down drivers were African American.  I asked myself if I would have the same experience traversing any predominantly white poor area.

    My conclusion was “hell no” it does not matter what the race is.  It would not matter.  I abhor that type of behavior in anyone of any race.

    But the point to be made is that the black over-representation in negative outcomes and under-representation in positive outcomes is probably rooted in black culture and black behavior and is likely misreported as bias and discrimination.  Because if you are ignoring traffic laws, it is likely that you disrespect and break other laws.  And if you disrespect and break any laws, you increase the risk that you will develop a criminal record.  And if you develop a criminal record, your future prospects get shot to hell.

    Probably the best thing we can do to help the black community is to get into the black schools and black neighborhoods and drill into the heads of young people that breaking the law is a ticket to a new form of slavery where you will not be able to escape from low socioeconomic circumstances, and where those circumstances will be exploited for political reasons to keep you locked into that new plantation.

    The political left attempts to look for external blames for the problems with the black community.  And to some degree the political left is correct that there are external forces preventing the ascent of blacks into the mainstream middle and upper economic classes.  But that external force is the political left.  The black community needs to reject liberal thinking and liberal policies and start behaving as does people that become successful.    And with a large number of successful blacks, including the President of the US, there is plenty of evidence that the problem is not bias, but behavior.

  3. TrueBlueDevil

    How many distortions do we have to read before we question everything that is written? I think the Vanguard has to be careful not to lose journalistic merit in particular.

    Here it is, in brief:

    “Last summer, following the death of Michael Brown, it was reported that while two-thirds of Ferguson residents are black, 95 percent of the officers are white.”

    1. In the 2014 article which stated this, reading down a few paragraphs I read that according to the Bureau of Justice Statistics, police departments nationwide are 75% white and 12% African American, matching their nationwide representation.

    2. Given that there is such a high truancy and dropout rates in many predominantly African American communities, I think the opposite is true: we have done a wonderful job of diversifying our nations police agencies.

    3. I know that Baltimore’s department is quite diverse.

    4. Given the distortions, I’d like to see sources and links to the claims of such ethnic imbalance.

    As an aside, the death of Michael Brown occurred because he was high as a kite, attacked a store clerk, and then attacked and attempted to murder a police officer.

    I happen to know that we have a very large number of African American lawyers in America, so maybe because most are Democrats or liberals, it could be that they naturally chose not to be prosecutors. Maybe they chose to be civil rights or defense lawyers.

    1. TrueBlueDevil

      P.S. How did Baltimore having a very diverse police force help in their recent meltdown? I guess some could argue it hurt to be “diverse” if your own leaders aren’t enforcing laws, and take actions which actually do more harm than good. Like letting businesses and buildings burn … what was that about? Payback? Creating a bigger national story? Or just incompetence?

      I think it would be very tough to be a black prosecutor and have 40, 50, or 60% of those you’re trying to put away be part of your “group”, especially give history.

      I think a more interesting statistic would be how many black judges there are in America.

      1. TrueBlueDevil

        According to the Federal Judicial Center, there are 104 federal judges who are black, 12.8% of federal judges, higher than the population representation.

        FYI. Source: National Review online.

    2. Davis Progressive

      the question isn’t police departments nationwide, it’ police departments in a smaller subsection of departments.  of course most of this piece focused on prosecutors, which your comment didn’t even address.

  4. zaqzaq

    Before you can become a prosecutor you have to become a lawyer which requires a college degree to attend law school.  Colleges require a high school diploma.  It would be interesting to compare the high school graduation rates and then the college graduation rates by ethnicity.

    1. Davis Progressive

      but why is the percentage of black prosecutors lower than other professionals?  The problem here is they leave a huge population off the table – black dda’s.  Because to get elected requires political success.

      1. zaqzaq

        What about Asian and Hispanic prosecutors?  I did not see those statistics covered.  Are there cultural factors at play here that define what career success is?  When reading the names of prosecutors in the paper I do not hear many Asian names.  Just an observation.

  5. zaqzaq

    So are we supposed to care more about the black community than the Asian or Hispanic?  Is that because members of the black community commit more crimes?  Are more likely to be violent and kill people?  Is it because they are in general less educated than other ethnic groups.  It is telling that after affirmative action the proportion of blacks and Hispanics in the UC system dropped and was replaced by greater numbers of Asians.  The white population was relatively unchanged.  When do we stop making excuses for the black community’s inability to figure it out when other ethnic groups have done so?  This is just getting old.  At some point the excuses need to stop.  After all there is a black president, not an Asian or Hispanic one.

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