Prosecutorial Discretion 

Prosecutors, Race, and the Criminal Pipeline

90 U. Chi. L. Rev. 1889 (2023) 

This Article presents evidence that some state prosecutors reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Existing literature aims to identify whether prosecutors introduce new disparities by controlling for race gaps that prosecutors inherit from earlier decision-makers in the criminal pipeline. This Article takes a more holistic approach to understanding prosecutorial discretion by interpreting prosecutors’ impacts in light of the accumulated disparities that already exist when they first open their case files.

Using North Carolina state court records from 2010 to 2019, I evaluate how the sentencing penalty for prior convictions differs by defendant race. My principal finding is that the increase in the likelihood of a prison sentence for an additional prior conviction was 23% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcerated at similar rates, white defendants with criminal records were incarcerated at significantly higher rates. And the longer the record, the greater the divergence.

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 the urgent calls to limit or eliminate prosecutorial discretion. Constraining prosecutors or blinding them to defendant race — a proposal that jurisdictions have increasingly implemented or considered — may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not introduce new bias, it also ensures that any past bias is passed through to current (and future) decisions.

Prediction Errors, Incarceration, and Violent Crime: Evidence from Linking Prosecutor Surveys to Court Records

Manuscript  with Appendices (with Emma Harrington and William Murdock III)  (Revise and resubmit, American Economic Journal: Economic Policy)

In criminal cases, decision-makers aim to selectively incarcerate defendants with a high risk of future violent crime. If decision-makers have more accurate beliefs about this risk, can they reduce violent crime without simply incarcerating more defendants? We survey 162 prosecutors about how violent re-arrest rates vary across defendants of different ages and with different criminal records. We link prosecutors’ beliefs to their 104,039 cases, which offices assign quasi-randomly. Prosecutors’ beliefs vary widely and predict their sentencing patterns for defendants of different ages and criminal records. Prosecutors with more accurate beliefs (by one standard deviation) reduce violent crime (by 6%) without incarcerating more defendants.

Brokers of Bias in the Criminal Justice System:  Do Prosecutors Compound or Attenuate Racial Disparities Inherited at Arrest?

Manuscript with Appendices  (with Emma Harrington) (Revise and resubmit, Review of Economics and Statistics)

In criminal cases, prosecutors can adjust police officers’ charges between arrest and sentencing — and therefore have the discretion to check any racial bias in arrests. Yet previous research suggests that prosecutors simply compound earlier racial disparities with their own biases. We investigate prosecutors’ impacts on racial disparities using discontinuities in North Carolina’s sentencing laws. For defendants with criminal histories above certain thresholds, the law mandates prison sentences. However, prosecutors can sidestep mandatory prison for these defendants by reducing their charge. We ask who benefits from prosecutors’ charging responses to the mandatory-prison discontinuities. From 1995 to 2019, we find that Black defendants were initially less likely — but ultimately became more likely — to benefit from charge reductions to avoid mandatory prison. The reversal is concentrated in arrests typically initiated by police stops and absent from arrests typically initiated by victim reports, suggesting that prosecutors have increasingly questioned disparities introduced by the police.

Statistical Discrimination  in Sequential Systems

Draft  (with Emma Harrington) (Work in Progress)

Decision-makers often rely on information that may reflect racial bias in earlier decisions. Do decision-makers adjust for this upstream bias or, instead, passively allow it to turn into systemic discrimination? We model and measure this dynamic using prosecutors’ beliefs about police as a test case. We extend the canonical statistical discrimination model to allow signals from earlier in the system to be racially biased. We test this model by linking an original survey of North Carolina prosecutors to their court cases. The survey elicits prosecutors’ prior beliefs about racial differences in crime and their perceptions about the informativeness of police reports. We first document the significant variation in prosecutors’ impacts on incarceration disparities (1 SD = 3.6 pp), using the quasi-random of cases to prosecutors. We find that prosecutors’ prior beliefs and perceptions of police reports each explain a substantial share of the variation in prosecutors’ impacts on racial disparities. Indeed, each explains more of the variation in prosecutors’ disparate impacts than prosecutors’ race or politics.

Randomizations in Survey of North Carolina Prosecutors  

Slides  (with Emma Harrington and William Murdock III)

We elicit North Carolina Assistant District Attorneys' charging and sentencing preferences for eight case hypotheticals in which observable and unobservable characteristics are randomly varied.  Sixteen offices and 203 prosecutors participated.