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.