Racial Disparities in Federal Prosecutions
From the Foreword...
Prosecutors and law enforcement officers have enormous power; they can make the difference between a community united by common aims and one riven by conflict. The men and women of the United States Department of Justice (DOJ) wield the power of the state to enforce the rule of law and keep our communities safe. Most discharge their duties in a vigorous and fair way, but neither human beings nor the institutions they run are perfect. As a result, our ability to reach a deep sense of fairness with criminal enforcement efforts is compromised by the racial and ethnic disparities that bedevil our criminal justice system and continue to damage individuals and communities. What is so exciting, today, is the new opportunity that exists to illuminate and address these disparities. . . The momentum we are seeing in the states would be dramatically accelerated by federal leadership on this issue. There is no more powerful message for the entire criminal justice system than to have federal prosecutors lead the national effort to eradicate the impact of racial and ethnic disparities in the criminal justice system.
James E. Johnson
Chair, Board of Directors
Brennan Center for Justice
In 2005, the Brennan Center for Justice at NYU School of Law and the National Institute for Law and Equity brought together 12 former prosecutors, most of whom had served as United States Attorneys, to look hard at racial and ethnic disparities within the federal criminal justice system and begin to craft a solution to this long-standing and troubling problem.
All acknowledged that prosecutors wield great power throughout criminal prosecution. All agreed that it is essential to monitor the role that race and ethnicity play in each stage of the prosecutorial process. Together, the participants proceeded to draft guidelines for federal prosecutors in six distinct areas:
1. Prosecutorial Decision-Making:
Prosecutors should consider racial and ethnic disparate impacts when setting priorities and should partner with law enforcement to eliminate racial and ethnic bias in charging practices.
2. Law Enforcement and Task Forces:
Prosecutors should lead ethnically diverse task forces formed to promote equal treatment without regard to race and ethnicity.
Prosecutors should train staff and law enforcement to identify and eliminate racial bias at all phases of criminal prosecution process.
4. Management and Accountability:
Prosecutors and the Executive Office of United States Attorneys should collect data to identify systemic racial and ethnic disparities in the federal criminal justice system and should work to increase the racial and ethnic diversity of U.S. Attorney’s staff.
Prosecutors should adopt practices to obtain views of community members on real or perceived disparate treatment by prosecutors based on race and ethnicity.
6. Influencing Legislation and Policy:
Prosecutors should support sentencing policy reforms designed to reduce racial and ethnic disparities in the federal criminal justice system.
These Guidelines are hardly radical. However, the Department of Justice (DOJ) declined to implement them after they were formally published in the 2007 Federal Sentencing Reporter. We are republishing them now, in the hope that the election of the nation’s first African-American President reflects an environment in which renewed and deepened efforts can help to improve race relations in this country.
. . .
A critical opportunity exists for DOJ to take concrete actions to achieve meaningful reform at both the federal and state levels. Our hope is that DOJ will: i) expand its capacity to track data on practices that produce bias; ii) support local and state-based initiatives run by prosecutors and by defenders that aim to reduce unwarranted racial and ethnic disparities in the criminal justice system; and iii) provide racial and ethnic sensitivity training to the staff of U.S. Attorney offices, and where practicable, state and local prosecutors and law enforcement officials.
As we republish these Guidelines, our hope is that Congress and the Administration will work together to take all necessary steps to incorporate these core principles into legislative and administrative directives designed to eliminate unwarranted racial and ethnic disparities from our criminal justice system and to begin to restore public confidence in the promise of equal justice.
James E. Johnson chairs the Board of Directors of the Brennan Center for Justice. A litigation partner at Debevoise and Plimpton in New York, Mr. Johnson was Under Secretary of the Treasury for Enforcement during the Clinton Administration, prior to which he was an Assistant U.S. Attorney for the Southern District of New York. Mr. Johnson was appointed chairman of the New Jersey Advisory Committee on Police Standards by Governor Corzine in August 2006. His Committee’s recommendations have been codified in a pathbreaking law: The Law Enforcement Professional Standards Act of 2009. In August 2009, he became the federal court appointed monitor overseeing the consent decree intended to promote fair and affordable housing in Westchester, NY. Mr. Johnson clerked for the Hon. Robert E. Keeton, U.S. District Court for the District of Massachusetts. He received his J.D. cum laude from Harvard Law School and received his A.B. cum laude from Harvard College.
Nicole Austin-Hillery is Director and Counsel of the Washington, D.C. office of the Brennan Center for Justice. Ms. Austin-Hillery oversees the Center’s D.C. operations and serves as the chief advocate for the Brennan Center on a host of justice and democracy issues. Her primary focus is on criminal and racial justice reform and voting issues. Formerly with the firm of Mehri & Skalet PLLC where she handled employment discrimination class action cases, Ms. Austin-Hillery was the George N. Lindsay Civil Rights Law Fellow at the national office of the Lawyers’ Committee for Civil Rights Under Law, where she also served as a member of their NGO delegation to the 2001 World Conference Against Racism and Xenophobia. A graduate of Howard University School of Law and Carnegie Mellon University, Ms. Austin-Hillery was a 2006 - 2007 Wasserstein Public Interest Fellow at Harvard Law School.
Melanca Clark is Counsel in the Justice Program at the Brennan Center for Justice where she directs the Community Oriented Defender Network, and works on other criminal justice initiatives dedicated to strengthening defender services and addressing racial disparities in the criminal justice system. Ms. Clark also works on legislative and policy reform to increase access to legal representation for low-income individuals in high-stakes civil cases, including in foreclosure proceedings. Ms. Clark, a former John J. Gibbons Fellow in Public Interest and Constitutional Law and a Skadden Fellow at the NAACP Legal Defense and Education Fund, also was an associate at Paul, Weiss, Rifkind and Garrison and clerked for Judge Joseph A. Greenway, Jr. of the U.S. District Court for the District of New Jersey. She received her J.D. from Harvard Law School and her B.A. from Brown University.
Lynn Lu was Katz Fellow and Counsel at the Brennan Center for Justice when she conducted her work on this report. Ms. Lu is currently an Acting Assistant Professor of Lawyering at NYU School of Law. She served as a Staff Attorney at the National Center for Law and Economic Justice (formerly the Welfare Law Center) following her work at the Brennan Center and before becoming Acting Assistant Professor of Lawyering. After graduating from NYU School of Law magna cum laude, Lynn clerked for the Honorable Kermit V. Lipez, U.S. Court of Appeals for the First Circuit.
Pieces of this report were published previously, under the title “Prosecutorial Discretion and Racial Disparities in Federal Sentencing: Some Views of Former U.S. Attorneys,” authored by Lynn Lu, and appeared in the Federal Sentencing Reporter, Vol. 19, No. 3: 192-201. To access the Federal Sentencing Reporter and other University of California Press journals, visit http://www.ucpress.edu/journals.