Eye on the Courts: Prosecutorial Bias and Racial Imbalance

It is often said that prosecutors are the single most powerful figures in the judicial system.  Far more powerful than judges, in fact.  Prosecutors are the gate-keepers.  They decide which cases to try. They decide what charges to press.  And when they commit misconduct – it is difficult to hold them accountable.

The courts have done little to hold prosecutors accountable.  The bar association has been shown to be notoriously lenient, even for prosecutors with multiple instances of willful misconduct.  And, unlike a police officer who can be civilly sued, a prosecutor has immunity.

“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” said Gordon Weekes, the chief assistant public defender in Broward County in an article this week in Fusion. They decide what charges to file – “or more importantly, what charges not to file.”

But as the Fusion article points out, “Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should.”

Moreover, the media should pay more attention to the racial and gender imbalance among elected prosecutors.

Fusion finds, “Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men — even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network.”

That disparity, the report said, “is a ‘structural flaw in the justice system’ that has cascading effects — like reducing accountability for police officers who shoot unarmed minorities.”

Fusion goes on to report, “The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is. At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men ‘were in state or federal facilities 3.8 to 10.5 times more often than white men.’”

Fusion’s data supports what social justice activists have long maintained: “At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities. There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real.”

Fusion’s analysis found it is true that there are large swaths of the country, at least in terms of area, where the population is overwhelmingly white.

However, Fusion found that “the imbalance persists even in communities of color.”

They found:

In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.

In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.

Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.

Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.

They note, “Existing data shows black prisoners are punished more harshly than white inmates across America. In 2008 and 2009, the average length of a federal prison sentence for black males was 90 months, compared with 55 months for a white male.”

Many variables are at play, but according to a 2014 study in the Journal of Political Economy, “an unexplained black-white sentence disparity of approximately 9 percent remains,” even after accounting for factors such as prior convictions.

“Estimates of the conditional effect of being black on sentences are robust,” the study concluded.

Rashad Robinson, executive director of Color of Change, according to the study, “said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as ‘tough on crime’ and make strong alliances with police.”

“They’re going into the job trying to get high conviction rates,” Mr. Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”

All of these factors come into play in Yolo County.

You would have to try very hard to find a single person of color in the DA’s office, and there may be no Hispanics and Blacks at all in the department.  And yet, the heavy majority of people in the system in Yolo County are people of color, particularly Hispanics, but disproportionately black as well.

Jeff Reisig, the DA, got elected on a tough on crime platform and Yolo County’s statistics demonstrate that.  Yolo County, a middle of the tier county in terms of crime rate, is near the top in per capita incarceration rate and at the top in most trials per capita.

In 2010 and 2011, the DA’s office put in place a gang injunction in West Sacramento.  Many have believed that injunction simply targets youth of color.

When we covered the gang injunction trial back in 2010, it was not clear that the gang problem was a traditional gang problem.  The DA identified a number of individuals involved in crime, but most of those were not gang crimes – there were some assaults, but a lot of property and drug crimes as well.

The DA did not demonstrate at that time that the individuals were acting in concert or under the guise of some criminal street gang organization.  In fact, there were no shot callers or leaders identified whatsoever.

Last year, the Vanguard did a Public Records Request for each individual served under the gang injunction since January 2011 when Judge Kathleen White granted the new gang injunction. Since January 2011, 69 people were served under the gang injunction, creating 278 reports by the West Sacramento PD.

We then cross-analyzed those reports with Yolo County court records.  Of the 278 reports generated, we only found 83 incidents that were charged. Only 41 of the 69 individuals served with the gang injunction were charged with a crime. Only 19 of the 83 charged incidents were charged with a gang crime. That’s only 13 individuals. While there are several pending trials. It appears only two people were actually convicted of a gang crime.

Of the 83 overall charged cases, 18 were misdemeanors. Fifty-two resulted in some sort of conviction  but 23 were either dismissed or acquitted with 8 pending. Among the 83 overall charged cases, 17 involved a firearm or a weapon as the main charge, 14  were drug cases, nine were burglary, five were resisting or obstruction with no other charge, four were robbery, four were DVs, three were thefts, driving with a suspended license, attempted murder, weapons, and assault. Two were a DUI and two were contempt. And there was one for a variety of different charges including murder (Wolfington).

While we note the case of Billy Wolfington, we should note that, while he was convicted of second degree murder (the DA sought first degree murder), the co-defendant was acquitted and the gang charges were dismissed by the jury.

The Fusion article notes that “tough on crime” becomes “tough on minorities.”  That is precisely what we see in Yolo County.

—David M. Greenwald reporting

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