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90 U. Chi. L. Rev. 1889 (2023)
Prosecutors, Race, and the Criminal Pipeline

handle is hein.journals/uclr90 and id is 1932 raw text is: This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the pre- vailing view that prosecutors compound disparities. Given prosecutors'positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past-and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Spe- cifically, I estimate how the sentencing penalty for prior convictions differs by de- fendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the likelihood of a prison sentence for an additional prior conviction was 25% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcer- ated at similar rates, white defendants with records were incarcerated at signifi- cantly higher rates. And the longer the record, the greater the divergence. To understand this finding, I link an original survey of 203 prosecutors to their real-world cases. This survey-to-case linkage helps reveal how prosecutors' beliefs about past racial bias influence their decision-making. I find that the subset of pros- ecutors who attribute racial disparities in the criminal legal system to racial bias have lower prison rates for Black defendants with criminal records than facially similar white defendants, thereby offsetting past disparities. In concrete terms, racial disparities in North Carolina prison rates in 2019 would have increased by 20% had the state mandated equal treatment of defendants with similar case files. These findings should lead reformers to exercise caution when considering calls to limit or eliminate prosecutorial discretion. Blinding pros- ecutors to defendant race-a policy that jurisdictions are increasingly implement- ing may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not intro- duce new bias, it also ensures that any past bias is passed through to current (and future) decisions. t Assistant Professor, Harvard Law School. For helpful comments and conversa- tions, I thank Douglas Baird, William Baude, Omri Ben-Shahar, Tony Casey, Adam Chil- ton, Adam Davidson, Evelyn Douek, Bridget Fahey, Alison Gocke, Janet Halley, Emma Harrington, William Hubbard, Aziz Huq, Louis Kaplow, Larry Katz, Emma Kaufman, Genevieve Lakier, Josh Macey, Jonathan Masur, Richard McAdams, Mandy Pallais, John Rappaport, Adriana Robertson, David Sklansky, Sonja Starr, Lior Strahilevitz, and Daniel Wilf-Townsend. This project was enriched by the survey of North Carolina prosecutors and hundreds of follow-up conversations, which would not have been possible without sup- port from the North Carolina Conference of District Attorneys, particularly Peg Dorer and Kimberly Spahos. 1889

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