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