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Robert J. Smith and Justin D. Levinson

Excerpted from: Robert J. Smith and Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion , 35 Seattle University Law Review 795 (Spring, 2012) (126 Footnotes omitted)


Prosecutors enjoy more unreviewable discretion than any other actor in the criminal justice system. In this Part, we analyze this vast discretion by first isolating its various component parts and then exploring how implicit racial bias can operate in each phase of prosecutorial discretion. We focus on three primary areas: (1) charging decisions, including both the decision of whether to charge and the decision of what crime to charge; (2) pretrial strategy, such as the decisions to oppose bail, offer a plea bargain, or disclose potentially exculpatory evidence to the defense; and (3) trial strategy, such as the decision to strike potential jurors or to analogize the defendant to an animal during closing arguments.