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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.
A. Charging Decisions
The first decision that a prosecutor makes in most criminal cases is whether to charge the suspect, and if so, with what charge. In some cases the decision involves whether to charge the suspect at all. This power is an expression of mercy--holding back the legitimate power of the State. But as the United States Supreme Court noted in McCleskey v. Kemp,"[T]he power to be lenient [also] is the power to Empirical studies confirm that the Court's observation has played out; prosecutors are less likely to charge white suspects than black suspects. These findings are true even when statistically controlled for prior criminal record. Faced with such discrepancies in charging decisions, the question becomes: If two suspects with substantially similar backgrounds are arrested for identical crimes in the same jurisdiction, how can the suspect's race possibly matter? One possibility is that implicit bias is at play.
1. Charge or Release?
In order to understand the role that implicit racial bias might play in a decision of whether to charge a suspect with a crime, consider an ambiguous case of self-defense. Imagine two homicide cases with identical facts except the race of the victim: one is black and the other is white. The suspect in each case claims self-defense, specifically alleging that he accidently bumped into the deceased outside of a bar at night, at which point the deceased warned, "You better watch yourself, or you're going to get yours."The suspect contends that the deceased then reached toward his waist and began to pull out a shiny object. The suspect, thinking the deceased was reaching for a weapon, fired his own handgun in what turned out to be a fatal shot. No gun was located near the victim's body, but police found a silver cell phone several feet from the deceased.
Prosecutors must assess the strength of a potential self-defense claim to determine whether they should bring charges at all, and if so, whether to offer a plea to manslaughter or another less serious charge. Assessing the strength of a possible self-defense claim requires an instinctual judgment: did the suspect reasonably believe that the deceased was reaching for a weapon? Recall our discussion of research indicating that Americans implicitly associate black citizens with aggression and hostility. Additional empirical research shows that people specifically associate blacks with guns and other weapons. For example, thousands of IATs taken online over the years have confirmed that the vast majority of Americans implicitly associate blacks with weapons and whites with harmless objects. Other studies using priming methodology support this finding. Keith Payne, for example, found that when participants viewed rapidly flashing photos of black faces immediately before seeing photos of guns, they were significantly faster at identifying the guns than after being primed by white faces. Applying this research to the scenario above, one could predict that a person perceived to be hostile and implicitly associated with weapons--a black person--would be perceived by prosecutors as likely reaching for a weapon.
The research, especially IAT findings that people implicitly dissociate whites and weapons, also suggests that prosecutors might be more likely to believe that the white victim was reaching for his cell phone, and thus, that the suspect acted unreasonably in shooting the deceased. So, switch the facts and assume that both victims are white. If suspect one is black, because Americans associate black citizens with hostility and aggression, then the prosecutor might be inclined to believe that the black suspect acted too quickly in shooting the unarmed man, while the same prosecutor might be inclined to believe that the white suspect--not only unencumbered by these negative associations but also bolstered by positive stereotypes such as lawful, trustworthy, and successful--acted reasonably in discharging his weapon. Of course, these dynamics would be amplified in a cross-racial shooting because stereotypes affect the evaluation of both the suspect's and the victim's behavior. A white victim would be more likely to be perceived as reaching for a cell phone, and a black victim would be more likely to be perceived as reacting unreasonably in discharging his weapon.
Implicit racial bias might also affect prosecutorial discretion in the charging decision in a non-self-defense scenario. Consider a case in which the prosecutor must decide whether to charge a suspect with forcible rape. According to the suspect, after a romantic dinner and a movie, the complaining witness invited him back to her house. They entered her bedroom. The complaining witness grabbed his crotch area and started kissing him. He directed her onto the bed and began taking off her (and then his) clothes and began having intercourse. After roughly one minute, she slapped his face. Taking this as a sign of sexual play, he slapped her back. After roughly another minute, he saw tears rolling down her face, immediately stopped having intercourse and asked her, "What's wrong?"
The witness tells a different story. She contends that the suspect closed the door after they entered the bedroom. He approached her quickly as though he was going to shove her against the door. She put up her hand in a defensive posture and struck him in the crotch area. He began kissing her. At first she tried to pull away, but then she "just sort of stopped resisting." He shoved her onto the bed and began taking off her (and then his) clothes. She said it "all happened so quickly" that she didn't know what was happening and felt like she was in "shock." She slapped his face as hard as she could muster. He then slapped her across the face with such force that she thought "my jaw had shattered." She began to sob. After a pause, he asked her, "What is wrong?" and then rolled off from on top of her. She began to sob very loudly. How does the prosecutor evaluate whether to charge this crime as a rape or consider the conduct to represent a reasonable mistake?
As prosecutors process the contested facts of the case, they cannot help but consider both the rape suspect and the complaining witness. Regarding the race of the suspect, research confirms that people associate the crime of rape with black perpetrators. A study by Jeanine Skorinko and Barbara Spellman found that when asked to identify societal conceptions of criminals for certain crimes, participants overwhelmingly selected black perpetrators as being associated with the crime of rape. After reading the competing statements of the suspect and the complaining witness, and seeing the mug shot of the suspect, a black male, prosecutors might implicitly associate black male with sexual aggression and insatiability, and even, as the research suggests, specifically with the crime of rape. It is not that the prosecutors consciously think about the black suspect and purposefully decide that black males are rapists. Rather, the associations are automatic; the prosecutors might "sense" aggression in the interaction or might have an instinctual reaction that the suspect is an incorrigible offender, but those thoughts are not necessarily consciously linked to race. And, again, it matters who the complaining witness is too. White women historically have been portrayed as pure and sexually modest. Black women, by contrast, are stereotyped as promiscuous and seductive. If the complainant in a rape case is a black woman, the prosecutor might implicitly associate the victim with such stereotypes and unintentionally devalue the accusation.
2. Determining What Crime to Charge
In other cases, the question is what crime to charge. The American Bar Association's Standards for the Prosecutorial Function lists the following factors among those for the prosecutor to consider in making the charging decision: What motives did the accused possess? Is the offense proportionate to the potential punishment? What is "the extent of the harm caused by the Each of these guideposts requires highly subjective decision-making. Evidentiary assessments in these contexts are not as simple as determining whether a gun was fired. Consider a scenario in which a prosecutor must choose between charging a suspect with simple drug possession or possession with intent to distribute. Imagine two suspects are arrested, both possessing the same quantity of drugs--one suspect is black, one is white. Stereotypes related to drug using versus drug dealing become relevant, and any implicit associations that prosecutors might have regarding race and the particular crimes can affect the charge rendered. If we assume that prosecutors hold similar stereotypes as the rest of us (and there is little reason to believe otherwise) then it becomes clear how when a prosecutor sees a young black male with drugs, the association between young black male and drug dealer can affect the evaluation of whether this particular person intended to sell the drugs or to consume them for personal use.
Another charging decision that illustrates how implicit racial bias might infect prosecutorial decision-making involves the decision to charge juvenile suspects (those under the age of eighteen) in adult court as opposed to juvenile court. The differences between juvenile and adult proceedings are drastic. Although the goal of adult court is to punish the offender, the goal of juvenile court centers on the well-being of the juvenile delinquent. Moreover, while in most jurisdictions a juvenile charged with a serious offense in juvenile court faces detention until his twenty-first birthday (or five years after the commission of the crime, whichever is longer), the same juvenile charged in adult court could face decades of (or, in the most serious cases, life) imprisonment.
Several criteria guide the decision to transfer a juvenile into adult court, including: "The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living";"[t]he seriousness of the alleged offense";"[w]hether the alleged offense was committed in an aggressive, violent, premeditated or willful manner"; and "[t]he prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the In order to get a sense of the various ways in which implicit racial bias can operate in the decision to transfer a juvenile to adult court, once again consider the stereotype that black Americans are more aggressive and hostile than their white counterparts. When prosecutors assess "the seriousness of the alleged offense" or whether the offense was committed in an "aggressive or violent" manner, they assess the facts not in a vacuum but in relation to the offender. Similarly, when prosecutors evaluate the juvenile's "home, environmental situation, emotional attitude and pattern of living," stereotypes of Latino families living in crowded and squalid conditions may affect the prosecutors' judgments. Thus, given the broad discretion of prosecutors and the close connection between the legal standards and racial and ethnic stereotypes, it is likely that two identical charges can end up in different courts (juvenile versus adult) despite substantially similar facts.
Imagine a sixteen-year-old youth who steals a candy bar from a convenience store, the store clerk struggles to restrain the juvenile before he exits the store, and the juvenile punches the clerk in the face, rendering him unconscious. Did the juvenile strike the store clerk because it was the only way he could get free and avoid apprehension? Did the juvenile just panic? Or is the juvenile the type of person who will react violently at the drop of a dime? If the juvenile is black, the prosecutor assessing the facts of this case might be primed by the picture of the juvenile, the notation that he is black, or even the recognition of a stereotypically black name that triggers associations between the black juvenile and the concepts of aggression and hostility. The activation of these negative constructs can translate into a sense that the crime (or the offender) is more aggressive or violent than would be the case if the prosecutor assessed the facts of the case in a truly race-neutral manner. This implicitly biased evaluation process has been documented in juvenile probation officers and police officer participants. Sandra Graham and Brian Lowery, for example, found that when these participants were subliminally primed with words related to the category black, they judged an adolescent's behavior as more dispositional, of greater culpability, and more likely to lead to recidivism.
Consistent with these startling results, research from the field suggests that decision-makers in fact possess the perception that misbehavior by black youth is more dispositional than misbehavior by white youth. Analyzing official court assessments of juvenile offenders, George Bridges and Sara Steen found that officials "consistently portray black youths differently than white youths in their written court reports, more frequently attributing blacks' delinquency to negative attitudinal and personality Just as in Graham and Lowery's study, the researchers found that perceived "negative internal attributes" that the black children possessed outweighed even characteristics such as the seriousness of the offense and prior criminality.
The operation of implicit racial bias on the charging decisions of prosecutors can even mean the difference between life and death. For offenses eligible for capital punishment, the decision to prosecute also includes whether to seek the death penalty. If prosecutors decide to prosecute for capital punishment, they need to choose which aggravating factor(s) (those elements which elevate ordinary first-degree murder to a murder that is eligible for a possible death sentence) to allege. For example, prosecutors could assert that this particular murderer deserved the death penalty relative to the average murderer because he is a "future danger" to society. All murderers have, by definition, purposefully taken a human life. But how do prosecutors decide which murderers are among the most likely murderers to represent a future danger to society? The decision requires prosecutors to make a highly subjective predictive determination and thus a determination prone to bias. When prosecutors evaluate the capitally accused suspect, whom do they see? As we have explained, the mere activation of a racial stereotype has been shown to lead to harsher attributions of criminal disposition and hostility, even in ambiguous situations. In the case of a black defendant, particularly one who possesses more Afrocentric features, these same negative stereotypes of a hostile black defendant could, in turn, influence whether the prosecutor views the defendant as a future danger.
Thus, whether the charging decision involves the prosecution of a forcible rape case, the decision to charge a drug crime as either simple possession or possession with the intent to distribute, or even whether to seek the death penalty against a particular defendant, the discretion enclosed in each of these moments of prosecutorial decision-making permits the operation of implicit racial bias in the criminal justice system.
B. Pretrial Strategy
1. Bail Determinations
Once a charging decision has been made, prosecutors must determine whether to oppose bail and, if not, how high of a bail to recommend. There is empirical evidence to suggest that, at least in some jurisdictions, minority defendants receive less favorable pretrial detention determinations than their white counterparts. Similar to a prosecutor's decision to charge, this finding might be partially driven by implicit racial attitudes and stereotypes. In the bail context, in addition to the stereotype of the black defendant as hostile and prone to criminality, which itself could lead to inflated bail requests, implicit racial bias might also operate through a functionally distinct mechanism--namely, the implicit devaluation of the defendant. One major factor in all bail determinations is the strength of the defendant's ties to the community, including employment situation. Here, the assumption is that if a defendant has a good job and a solid connection with the community, then the defendant will be less likely to flee.
As studies such as stereotype IATs repeatedly demonstrate, black Americans are stereotyped as being less intelligent, lazier, and less trustworthy than white Americans. If a prosecutor is primed with a picture of the black defendant as she reviews the case file prior to the bail hearing, these negative work- and character-related stereotypes might cause the prosecutor to view the black defendant's work history and community connection with more skepticism than a similar background provided by a white defendant's background. On the other hand, a white prosecutor might view a similarly situated white defendant with positive implicit attitudes and stereotypes activated. These stereotypes might lead to the judgment that a hard-working and intelligent white defendant has a strong employment background and an intimate connection with the community.
2. Disclosure of Exculpatory Evidence
The Due Process Clause of the Fourteenth Amendment requires prosecutors to disclose to the defense any exculpatory information they uncover. But the evidence does not always make its way into the defense counsel's hands. Sometimes this is because prosecutors willfully refuse to turn over the evidence despite its exculpatory nature. Take the case of Connick v. John Thompson spent eighteen years in the Louisiana State Penitentiary--most of them on death row--before his release in 2003. At his capital murder trial, Thompson opted not to testify in his own defense because he was previously convicted of armed robbery. The proof of his innocence of the armed robbery languished in the files of the New Orleans Crime Laboratory. One month before his scheduled execution, a defense investigator stumbled upon a lab report indicating that the blood evidence the prosecution presented at trial did not match Thompson's blood type. One assistant district attorney "intentionally suppressed [the] blood evidence," and then, shortly after being diagnosed with terminal cancer, confessed his wrongdoing to another assistant district attorney who did not reveal the secret until five years later. The Louisiana Supreme Court vacated both convictions. Upon his release, the Jefferson Parish District Attorney retried Thompson for capital murder. A jury acquitted him.
Why would prosecutors choose to not turn over exculpatory evidence? One possibility is that they are convinced that the defendant committed the crime despite the potentially exculpatory evidence, and they believe that the evidence would unduly harm the chance to convict a dangerous offender. Under this theory, whether to disclose potentially exculpatory evidence turns, in part, on the seriousness of the charges and the perceived strength of the defense case as discounted for revelation of the piece of evidence to the defense. Perceptions of the seriousness of the crime, in turn, depend in significant part on the how the prosecutor views the defendant. If the defendant is implicitly associated with hostility, criminality, or dangerousness, then implicit racial bias can influence the decision to disclose (or not) the ambiguous evidence by altering the perception of the defendant, which, in turn, alters the perception of the seriousness of the crime. Thus, prosecutors' decisions to comply with their Brady obligations also can be infected by implicit racial bias.
3. Plea-Bargaining
Most criminal cases are resolved by plea bargain, where the defendant admits guilt in exchange for a reduced charge (or a lesser sentencing recommendation). Unlike the disclosure of exculpatory evidence, plea-bargaining is subject to almost zero oversight. We have argued that, in several contexts, implicit racial bias thrives in the midst of discretionary determinations. Plea-bargaining is no exception. Consider a sampling of four "factors" among those the Department of Justice instructs federal prosecutors to consult in deciding whether to pursue a bargained disposition: (1) "[T]he nature and seriousness of the offense or offenses charged"; (2) "the defendant's remorse or contrition and his willingness to assume responsibility"; (3) "the public interest in having the case tried rather than disposed of by a guilty plea"; and (4) "the expense of trial and How might the defendant's (or the victim's) race have an impact on the prosecutor's decision whether to offer a plea bargain, and if a plea is in fact offered, how much of a charging reduction will be offered in exchange for the guilty plea?
First, consider prosecutors' assessment of the "seriousness of the offense charged." Imagine a domestic violence case where a man severely abuses his spouse. Does it matter if the spouse is black? Imagine white prosecutors deciding whether to offer the suspect a plea deal on a misdemeanor battery charge. As the prosecutors attempt to quantify the seriousness of the offense, they might not be able to empathize with the fear and pain of a black woman as much as they could empathize with a white woman subjected to domestic abuse. This phenomenon is known as "in-group favoritism," which is defined as "our tendency to favor the groups we belong Justice Scalia might use the term in-group favoritism to label the "undeniable reality" he described in his dissent in Powers v. Ohio"that all groups tend to have particular sympathies ... toward their own group
There is experimental support for the existence and power of ingroup favoritism, or bias, as it relates to empathizing with a victim. Alessio Avenanti used a method called transcranial magnetic stimulation (TMS) to measure corticospinal activity level in participants who viewed short video clips of a needle entering into the hand of either a lightskinned or dark-skinned person. Consistent with the in-group empathetic-bias explanation, Avenanti found that region-specific brain activity levels were higher when Caucasian-Italian participants viewed the clip of a light-skinned participant experiencing pain than when they saw a clip of a dark-skinned target being subjected to pain. Returning to the white prosecutors trying to assess the seriousness of the domestic abuse suffered by a black woman, prosecutors might undervalue the extent of the harm caused by the abuse relative to the harm that they would consider a similarly situated white woman--perhaps someone who reminds them of their mothers, sisters, or daughters--to have suffered.
The defendant's race (as well as the victim's race) can also influence the plea-bargaining process. Imagine a prosecutor trying to determine whether to offer a defendant a plea to manslaughter (and thus a term of years) or to proceed to trial to try to obtain a second-degree murder conviction (and thus, in many jurisdictions, life without parole). Whether "the public interest" is satisfied by a plea bargain (as opposed to going to trial where the defendant could receive a harsher sentence) and whether "the expense of trial" is worth it turn on how the prosecutor views the defendant. Is this person dangerous and thus likely to commit a future crime? As a white prosecutor reviews the case file of a young white defendant, the prosecutor might be unknowingly affected by positive implicit stereotypes relating to lawfulness and trustworthiness. This could lead to a more lenient evaluation of the defendant--troubled, but not a bad person, for example--and thus a plea offer is more likely to follow. As we have well-covered by now, the opposite will be true when the prosecutor views a black defendant; the prosecutor's mind will likely trigger automatic associations between the defendant and the concepts of violence and hostility. On a related point, as the prosecutor attempts to determine the degree of remorse the defendant has displayed (for example, during plea negotiations), the stereotype that black citizens are less fully human might render the prosecutor less able to detect remorse from a defendant's body language or more likely to reject a black defendant's apology as self-serving or otherwise not genuine. So too might the stereotypes that black citizens are violent, hostile, and prone to criminality have an impact on the degree of remorse that the prosecutor is able to detect in a defendant.
C. Trial Strategy
1. Jury Selection
Lawyers selecting a jury in a criminal case are allocated a predefined number of peremptory challenges, which they can use to eliminate prospective jurors without justification. Under the Due Process Clause of the Fourteenth Amendment, these strikes cannot be used to eliminate jurors based on their race. The prohibition against race-based strikes is clear, but policing the rule is far murkier. Courts routinely uphold peremptory challenges based on largely unverifiable race-neutral explanations, for example, those based on avoiding eye contact, possessing an apparent lack of intelligence, or showing signs of nervousness. Indeed, it is so difficult to detect conscious evasion of the prohibition against racially motivated strikes that Justice Powell noted in Batson,"[P]eremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to
Striking black jurors used to be based on explicit racism. For instance, in Miller-el v. Cockrell, the U.S. Supreme Court discussed a trial manual (titled Jury Selection in a Criminal Case) used in the Dallas County District Attorney's Office in the 1960s and 70s. Among the advice offered by the manual to trial prosecutors: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well Even in the twenty-first century, prosecutors struggled to mask racially motivated strikes. For example, in one Louisiana capital case, the prosecutor explained that he struck one black juror because he was "the only single black male on the panel with no There is less reason to believe that the vast majority of prosecutors today strive to strike jurors on the basis of race. This does not mean that race-based strikes are not a problem. Indeed, Justice Breyer recently noted that "[he] was not surprised to find studies and anecdotal reports suggesting that, despite Batson, the discriminatory use of peremptory challenges remains a
Implicit racial bias might help to explain why egalitarian-minded prosecutors nonetheless disproportionately strike black jurors. In addition to the stereotype that black citizens are prone to criminality (and thus might sympathize more with those who commit crime), prosecutors might associate black citizens with lack of respect for law enforcement and opposition to the prosecution of drug crimes or use of the death penalty as a punishment. If a prosecutor questions a prospective black juror, the simple act of even talking to that person might activate any of these negative stereotypes as well as more general negative implicit attitudes, causing the prosecutor to think or feel negative thoughts about the juror. The prosecutor might project this negativity through body language and gestures, which could, in turn, cause jurors to avoid eye contact, provide awkward or forced answers that make the juror appear less intelligent, or simply fidget and look nervous. Thus, even accurate raceneutral behavior descriptions might stem from racialized assessments (albeit, without conscious thought) of the characteristics of individual jurors.
2. Closing Arguments
Implicit racial bias can also have an impact on the content of a prosecutor's closing argument and, in turn, on the manner in which the jury (or judge) views the evidence in the case. In Darden v. Wainwright, the prosecution referred to the defendant during closing arguments as an "animal" that "shouldn't be out of his cell unless he has a leash on him and a prison guard at the other end of that"In a recent Louisiana case, the prosecution referred to the black ... defendant as '[a]nimals like that (indicating)' and implored the jury to 'be a voice for the people of this Parish' and to 'send a message to that The use of animal imagery in reference to the accused can both depend on and perpetuate the negative effects of implicit race bias.
Referring to the accused in nonhuman terms dehumanizes the defendant in the eyes of the jurors and could potentially lead to harsher punishment. In a compelling empirical study that showed how people continue to mentally link blacks with apes, Philip Goff and colleagues asked participants to view a degraded image of an ape that came into focus over a number of frames. When primed with a consciously undetectable image of a black face, participants were able to identify the ape in fewer frames; conversely, when primed with a consciously undetectable white face, participants required more frames to detect the ape than when they received no prime at all. The study confirmed that people, most of who claimed not to have even heard of the stereotype linking blacks to apes, nonetheless implicitly associated blacks with apes, a finding that heightens the concern surrounding the use of animal imagery during prosecution.
In a related study that linked the animal-imagery study to criminal sentencing, Goff next explored the black-ape association by comparing the frequency of animalistic references to black defendants with that of similar references to white defendants in a dataset of 600 criminal cases prosecuted in Philadelphia between 1979 and 1999. The study found that coverage from the Inquirer, Philadelphia's major daily newspaper, of black defendants included, on average, nearly four times the number of dehumanizing references per article than articles covering white capital defendants. Furthermore, the study found a strong correlation between the number of times an animalistic reference was made and the likelihood that the defendant received the most severe punishment available.
D. Beyond the Trial: More Prosecutorial Discretion
This Part has provided a step-by-step account of the potential impact that implicit racial bias can have on prosecutorial discretion. We have focused narrowly on case-specific decisions ranging from the decision to charge a suspect to how the prosecutor maneuvers through the pretrial process to the decisions the prosecutor makes at the trial. This discussion remains incomplete, however. The idea that easily activated stereotypes of certain defendants can influence the decision-making process applies with equal force to other forms of prosecutorial discretion. For example, prosecutors must decide whether to join defense lawyers in urging for a conviction to be vacated in a case of actual innocence. Is a prosecutor convinced by a lower quantum of evidence in a case involving a white prisoner (who might or might not be a violent offender) than in a case involving a black or Latino prisoner? Perhaps the question is whether to recommend a defendant to drug counseling or to press instead for jail time--do implicit stereotypes of black citizens have an impact on the prosecutor's assessment of the suitability of alternative sentencing?
Or consider office-wide decisions, such as on which crimes to concentrate prosecution efforts given limited resources. Is the decision to target street gangs--one recently made a top priority by the Department of Justice--influenced by the perceived explosion of Latino gangs and the conception of Latinos as drug dealers and "illegal aliens," or is the decision based solely on the seriousness of the crime involved? Again, before we can answer that the seriousness of the crime drives the policy choice, are we able to gauge the seriousness of the crime without being influenced by our conception of the offenders? Indeed, the race of the defendant might infiltrate the prosecutor's core beliefs about the justifications of punishment--do black defendants tend to activate the conception that offenders deserve to be punished whereas white defendants tend to activate other justifications for punishment, such as deterrence or rehabilitation?
We hope that we have conveyed a sense that the potential impact of implicit racial bias on prosecutorial discretion is broad and deep. In the remainder of this Article, we explore the ways in which we might build a body of proof to support our contention that implicit racial bias infects the decisions of prosecutors, and finally, we consider possible remedies for avoiding or minimizing the damage associated with the operation of such bias.
