Prosecutors Are Not All Colorblind—and That Can Be a Good Thing

Kevin Woodson

The scholarship on criminal justice disparities has often cast prosecutors in a harsh light. Prosecutors are among the most powerful actors in the criminal legal process, due to their vast discretion in deciding whether and how to proceed with cases, and researchers have found that they use this discretion in ways that produce racially disparate outcomes, to the detriment of Black defendants.¹ Studies have described prosecutors’ offices with bias-laden cultures that breed contempt and callousness toward poor Black defendants and indifference to systemic racial inequities.² Against this backdrop, scholars and other reformers have championed strategies to limit prosecutorial discretion in charging decisions, including by “colorblinding” their cases, to reduce racial disparities in case outcomes.

Though well-intentioned, these reforms may be counterproductive and the underlying understanding of prosecutorial discretion outdated. In her important new article, Prosecutors, Race, and the Criminal Pipeline, law professor Hannah Shaffer demonstrates that limiting prosecutorial discretion may not only fail to alleviate racial disparities but may actually make them much worse. Through evidence from her original empirical research project, a 2020 survey capturing 203 North Carolina prosecutors’ views about criminal justice disparities that Shaffer links to comprehensive data from their real-life cases from 2010 to 2019, Shaffer reveals that prosecutors who attribute racial sentencing disparities to racial bias are significantly less likely to incarcerate Black defendants compared to White defendants with similar criminal records. In other words, prosecutors use their discretion to discount the prior convictions of Black defendants—records that may be inflated as a result of discriminatory policing practices—and thereby reduce racial disparities in sentencing outcomes. And this tendency is not just limited to attorneys working in progressive prosecutors’ offices: Shaffer’s findings hold across different types of jurisdictions—conservative and liberal, urban and rural, and for politically liberal and conservative prosecutors alike. Further, between 2010-2019 prosecutors increasingly gave less weight to Black defendants’ prior records, suggesting that their race-conscious decisionmaking may be an enduring and growing source of racial progress. The fact that newer cohorts of prosecutors express far greater awareness of racial bias in the criminal legal process also bodes well for the racially equitable use of prosecutorial discretion in the future.

While the article is dense with empiricism, it is clearly written and highly accessible. Shaffer does not wax poetic about the criminal legal system or advance provocative theoretical claims about the racial disparities therein. Instead, she uses careful language to precisely describe her research methodology and analyses in great detail, both in the text and, helpfully, in extensive online appendices. Impressively, Shaffer anticipates and addresses a wide variety of possible alternative explanations for her findings and runs additional analyses that confirm that her conclusions are robust. Although the research is based solely on data from one state, Shaffer makes the case that the results very likely apply elsewhere and are probably not artifacts of any state-specific dynamics. Still, one hopes that future researchers will confirm that this is so by conducting similarly rigorous studies using data from other states and jurisdictions.

The article’s implications are not only significant for reform efforts that would limit prosecutorial discretion, but also for racial-justice-minded lawyers and law students who might pursue careers in prosecution and for those of us who teach them. Some scholars in the past have argued that “good people” and people who care about racial justice ought not to take jobs as line prosecutors on the view that these lower-level prosecutors, no matter their values and intentions, face constraints that render them powerless to effect meaningful change.³ This article challenges that view. It affirms instead that line prosecutors can, and in many cases do, use their positions to reduce the over-incarceration of Black people. For law professors, this article’s findings sustain our hope that we may be able to play some small, indirect role in fighting criminal justice disparities by educating lawyers and students about sources of racial inequities in the criminal legal process and means of combating them. This article is essential reading for anyone interested in better understanding prosecutorial behavior and its impact on case outcomes, as well as for anyone concerned about racial disparities in the criminal justice system more broadly. It is a model of rigorous empirical scholarship that contributes meaningfully to academic discourse while informing criminal justice policy and practice.

1. See, e.g., M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, 122 J. Pol. Econ. 1320 (2014).
2. See Nicole Van Cleve, Crook County: Racism and Injustice in America’s Largest Court (2016).
3. Abbe Smith, Can You Be a Good Person and a Good Prosecutor?, 14 Geo. J. Legal Ethics 355 (2001); Paul Butler, Let’s Get Free: A Hip-Hop Theory of Justice (2009).