Robert M.A. Johnson
"With Liberty and Justice for All"
There is an increasing concern across the United States that our criminal justice system does not treat people from a racial minority with the same fairness it treats people of the majority. Newspaper columnists, civil rights organizations and other critics of the system frequently raise important questions about this issue that deserve a response. For example, the debate about racial profiling in many states has resulted in litigation and important legislation. And, a disproportionate number of racial minorities in our prisons and jails makes the concern about fairness legitimate.
Our police chiefs, sheriffs, district attorneys, judges and legislators become understandably defensive when questions of justice and fairness are raised. Each of them is, of course, individually charged with the responsibility to see that the actions of their offices and employees are not the product of racial bias. But even as our criminal justice system evolves, and I would argue that it is improving, this issue of fairness will not simply go away.
Our criminal justice system is anchored by constitutional guarantees of fairness. It is the perception of fairness, however, that is the barometer of how well the system is working. As prosecutors, all of us work hard to maintain that perception. Along with law enforcement agencies, we are among the first to be called upon to answer questions about particular cases. When prosecutors and police cannot adequately explain their decisions and actions, the public at large can lose confidence in the system. This is unacceptable.
If we ever lose the public's confidence in the criminal justice system, our society is in grave trouble. Today, we have an increasingly successful society and economy, in large part a result of a solid criminal justice system. Citizens are assured that we will actively pursue and punish those who commit crimes. It does not take an economist to understand that if a business person were to lose confidence in the criminal justice system, the risk and expense of theft and fraud would have to be factored into every business deal. Similarly, if someone is assaulted or violated, without confidence in the criminal justice system, friends and family members will feel a need to seek retribution by taking the law into their own hands. Consider all of the possible consequences of a criminal justice system that fails to maintain the confidence of the public-it is apocalyptic.
Preserving the public's confidence requires much more than a fair and impartial criminal justice system. Our challenge is also to maintain the public's perception that the system is fair and impartial. Perception becomes reality and it is the key. Frankly, our well-meaning efforts to make our criminal justice system the most fair in the world are not going to be as successful as they should be if there continues to be a perception of unfairness.
What must we do? First, we must take this concern about fairness seriously. As prosecutors, we have a system-wide responsibility because we sit at the helm of the system. We decide who to prosecute and what charges to bring. When it is required in the interest of justice, we can decline to prosecute. The police must bring their cases to us, and judges can only preside over those cases we bring before them. And, our legislators depend on us for guidance in the drafting of criminal laws and for the implementation of those laws when passed. So, it is incumbent on us to bring together all of the parts of our system to face this issue.
Our greatest challenge, however, is the unconscious bias that can sometimes seep into the decisions we all must make. Do I consider statements of some defendants, victims or witnesses differently from others because they look like me and we share a similar background? Am I more skeptical of statements made by people who do not look like me and come from a different background? Do I treat one case more seriously than another, and do I want a greater penalty when the person is visibly different from me and I cannot understand the conduct? Like prosecutors, judges too must ask these questions. But how can we deal with the unconscious on a system-wide basis? The lack of an easy answer should not deter our efforts.
Our legislators have a similar serious concern. How many of our laws have inherent bias? How many times have legislators either refused to criminalize conduct or minimized the penalties because subconsciously they are more accepting of the conduct that people they know may undertake? And, how many times have they criminalized behavior, setting disproportionately harsh penalties for conduct that is completely outside their experience or comprehension? For instance, the more serious penalty for crack cocaine compared to powder cocaine in most jurisdictions should be examined to determine whether it reflects an unconscious bias. As prosecutors, we need to be able to help our legislators listen to the concerns of people of color and understand the whole effect of the laws that they enact on our different cultures.
In the future, prosecutors must take the lead to insist that our colleagues in the criminal justice system address legitimate concerns about racial unfairness. This will not be a comfortable debate. The only question is whether the debate occurs now, in an environment where we take the lead or later, when a faltering criminal justice system drags us into the debate because of a community-wide perception of racial unfairness.
