Hiring black prosecutors won’t fix the criminal justice system

The number of black prosecutors in the United States is shockingly low. Florida, a state where more than 16 percent of residents are black, has no black elected prosecutors. In most states that elect prosecutors, none are black. Nationwide, elected prosecutors are 95 percent white, and overwhelmingly male.

These statistics are more skewed than the already-abysmal racial disparities among judges and lawyers. It is hard to think that any part of the law could be more racially exclusive than big law firms, where only 3 percent of attorneys are black, with even that number continuing to drop. But the realm of prosecution is the most white-dominated of all. 

These numbers are finally receiving the attention they deserve. The New York Times recently reported on a new study by the Women Donors Network, exposing just how racially exclusive these offices continue to be. The Times quotes criminal justice experts who point out that prosecutors wield an inordinate amount of power, since almost all criminal cases are resolved through plea bargains brokered by prosecutors. Thus, they reason, it is important to make sure district attorneys' offices are not heavily racially skewed, since those offices play a large part in perpetuating racially biased criminal justice outcomes. Wouldn’t adjusting prosecutorial diversity go a long way toward rooting out that racism?

Civil rights activists, too, have pointed out the dearth of black prosecutors. Former NAACP president Ben Jealous has said that because prosecution is a key “lever of power,” having more black prosecutors is essential in order to effect change. Melba Pearson, who heads the National Association of Black Prosecutors, says that unless defendants see “someone who looks like them” when they enter a courtroom, faith in the system is impossible. The authors of the new study emphasize that diversity is important because of the extreme concentration of power in prosecutors’ hands, from the choice as to whether to prosecute, to the ability to strike bargains with witnesses, to the plea process with defendants.

It’s completely correct to say that prosecutors’ extreme power, combined with racial disparity, means white people end up almost exclusively in control over a large part of criminal justice decision-making. But minority representation does not automatically eliminate racism. Focusing on electing black prosecutors would be a mistake for those concerned about race and criminal justice, because the injustices inflicted by prosecutors will not disappear without far deeper change. 

To give a parallel example, some of the most brutal and unaccountable police departments in America have a majority black population of officers. The New Orleans police department is 60 percent black — exactly the same as the percentage in the city itself. Yet the department is responsible for countless infringements of civil rights, and a Justice Department investigation found that it consistently “engages in a pattern or practice of discriminatory policing in violation of constitutional and statutory law.”

Detroit’s black police chief has enforced and defended the city’s stop-and frisk practices. And the Baltimore police department is no different; one need only remember that half of the officers arrested in Freddie Gray’s death are black.

The point should be self-evident. One need only read the opinions of Supreme Court Justice Clarence Thomas to realize that it is perfectly possible to be both black and completely unsympathetic to criminal defendants. (Similarly, no accused African American would feel fortunate to have a case before the staunchly conservative African American Janice Rogers Brown of the D.C. Circuit, who defended the use of “stun belts” on courtroom defendants.)

Increasing the diversity of people in power does often produce some non-superficial consequences. We need only look to the difference between the bizarre, half-hearted grand jury presentation conducted by the white prosecutor in Michael Brown’s death, versus Marilyn Mosby’s vigorous pursuit of indictments in the case of Freddie Gray. The Justice Department’s intensive investigation of the Ferguson police department, and its steps in the direction of prison reform, are undoubtedly in part due to the leadership of Eric Holder, Loretta Lynch and Barack Obama, black lawyers who to some degree appreciate the need for reform.

But this just goes to show the limitations of a diversity-based approach. Having a black attorney general did not prevent the Justice Department from using coercive threats of extended sentences to badger defendants into pleas, and has certainly not kept the federal justice system from being gargantuan and destructive. It has not changed the racial composition of our federal prisons, or changed the fact that millions of black men are regularly ensnared in the American criminal justice juggernaut.

No matter how much lip service President Obama may pay to the need for change, he has not meaningfully exercised his pardon power in the pursuit of criminal justice reform. Likewise, the fact that the Attorney General of California, Kamala Harris, is a reform-minded black woman did not prevent her from defending a racist death penalty or maintaining unaccountable asset seizure programs.

Solely diversity-based goals also play into the hands of those who wish to legitimize America’s broken criminal justice system. When Eric Garner was choked to death by New York police on July 17, 2014, online conservatives tried frantically to prove that the supervising officer at the scene had been a black woman, as if this would have somehow justified his death. There is worrying potential for diversity to create a stamp of legitimacy on injustice. Defendants who see “someone who looks like them” at the state attorney’s table may gain the mistaken impression that the system is fair.

Obviously, having de facto racial exclusivity in any part of the government, especially one so important as criminal prosecution, is unacceptable. The statistics on African Americans and the legal profession are a national disgrace. Law is the least diverse profession in the country, which strongly casts doubt on our legal institutions’ capacity for neutrality.

But in a criminal justice system whose central problem is the expansive reach of racially biased prosecutorial power, the ultimate goal is not to increase the number of prosecutors who are black, but to decrease the number of prosecutors to begin with.