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.