Prosecution and Race: The Power and Privilege of Discretion

Abstract

This article examines prosecutorial discretion and argues it is a major cause of racial inequality in the criminal justice system. It asserts that prosecutorial discretion may instead be used to construct effective solutions to racial injustice. The article maintains that since prosecutors have more power than any other criminal justice officials, with practically no corresponding accountability to the public they serve, they have the responsibility to use their discretion to help eradicate the discriminatory treatment of African Americans in the criminal justice system.

Part I of the Article explains the importance and impact of the prosecution function. Part II discusses the role of race and racism in discretionary prosecutorial decisions. Part III examines the difficulty in bringing successful legal challenges to discriminatory prosecutorial decisions. Part IV suggests the use of prosecutorial discretion as a remedy for race discrimination in the criminal justice system. Finally, Part V proposes the use of racial impact studies in prosecution offices to advance the responsible, nondiscriminatory exercise of prosecutorial discretion.

Keywords: Criminal justice, racial justice, criminal defense, prosecutorial misconduct, race discrimination, prosecutorial power, racial inequality