Race, prediction, and discretion

George Washington Law Review

Volumn 81, Issue 1, 2013, Pages 157-222

  Baradaran, Shima ^a  

^a BRIGHAM YOUNG UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84882328918     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (211)

1. Melissa Hickman Barlow, Race and the Problem of Crime in Time and Newsweek Cover Stories, 1946 to 1995, 25 SOC. JUST. 149, 151 (1998).
2. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 16 (2010) ("The fact that more than half of the young black men in many large American cities are currently under the control of the criminal justice system (or saddled with criminal records) is not-as many argue-just a symptom of poverty or poor choices, but rather evidence of a new racial caste system at work.");
3. GREGG BARAK ET AL., CLASS, RACE, GENDER, AND CRIME: THE SOCIAL REALITIES OF JUSTICE IN AMERICA 286 (3d ed. 2010) (describing discrimination based on race as "produc[ing] more prosecutions and harsher punishments," and mass-mediated representations of race as "reproduc[ing] . . . the structural relations of oppression associated with crime");
4. MICHAEL TONRY, The Malign Effects of Drugs and Crime Control Policies on Black Americans, in THINKING ABOUT PUNISHMENT: PENAL POLICY ACROSS SPACE, TIME AND DISCIPLINE 81, 111 (2009) ("[I]nsensitivity to the interests of black Americans continues to characterize American crime policies.");
5. Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REV. 1016, 1017, 1023-31 (1988) (explaining that even the Supreme Court has recognized that race impacts jury decisions and a defendant's ability to defend himself against the government, and further explaining that ignorance of racism blinds judges, and indirect, covert, and unconscious racism often goes unnoticed in the criminal justice system);
6. Ian F. Haney López, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 YALE L.J. 1717, 1722, 1725, 1806 (2000) [hereinafter López, Institutional Racism] (discussing judicial institutional racism in criminal justice cases resulting from unconscious societal bias, even though judges lack discriminatory intent);
7. Ian F. Haney López, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CALIF. L. REV. 1023, 1028 (2010) [hereinafter López, Post-Racial Racism] ("Even the most cursory engagement with American criminal justice at the start of the twenty-first century drives home the twin points that the United States puts people under the control of the correctional system at an anomalously high rate, and that it shuts behind bars an overwhelmingly disproportionate number of black and brown persons.");
8. Lisa L. Miller, The Invisible Black Victim: How American Federalism Perpetuates Racial Inequality in Criminal Justice, 44 LAW & SOC'Y REV. 805, 805 (2010) ("One of the most discouraging facts of racial inequality at the dawn of the twenty-first century in the United States is the disproportionate impact of crime, violence, arrest, and incarceration on African Americans and Latinos compared to whites.");
9. Naomi Murakawa & Katherine Beckett, The Penology of Racial Innocence: The Erasure of Racism in the Study and Practice of Punishment, 44 LAW & SOC'Y REV. 695, 701 (2010) (stating that racial power in criminal justice is "a systemic and institutional phenomenon that reproduces racial inequality and the presumption of black and brown criminality");
10. Angela J. Davis, Benign Neglect of Racism in the Criminal Justice System, 94 MICH. L. REV. 1660, 1674 (1996)
11. reviewing MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA (1995) (mentioning literature suggesting the "existence of racial bias at various stages of the criminal process, including the arrest, prosecution, trial, and sentencing phases");
12. Jennifer Haberkorn, In Previous Roles, Holder Took Both Sides in Civil Rights Cases, WASH. TIMES, Feb. 22, 2009, at A6 (noting that Eric Holder, the first black Attorney General, "called the United States a 'nation of cowards' for not discussing more openly the country's troubled racial history and vowed that the department, under his leadership, would take a greater role in fighting racism");
13. Charles Hurt, Minority Appeal: Barack vs. Hill in D.C. Duel, N.Y. POST, June 29, 2007, at 8 ("The criminaljustice system is not colorblind."(quoting Barack Obama)).
14. Indeed the bulk of criminal procedure in the last 100 years has attempted to overturn the systemic racism that has existed in much of the United States. WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 43-45, 264-71 (2011) (noting that more trials with local juries, laws that accurately define what prosecutors seek to punish, and an equal protection guarantee like the one that died in the 1870s would help to make prosecution and punishment less discriminatory);
15. Marc Mauer & David Cole, Five Myths About Americans in Prison, WASH. POST, June 17, 2011 (noting that "African Americans . . . make up 34 percent of those arrested for drug offenses and 45 percent of those serving time for such offenses in state prisons" because "[i]nner-city, open-air drug markets are easier to bust than those that operate out of suburban basements").
16. PAUL GUERINO ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, PRISONERS IN 2010, at 26 (2011), available at http://www.bjs.gov/content/pub/ pdf/p10.pdf.
17. LAUREN E. GLAZE, U.S. DEP'T JUSTICE, CORRECTIONAL POPULATION IN THE UNITED STATES 2010, at 8 (2011), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/cpus10.pdf.
18. MICHAEL TONRY, PUNISHING RACE: A CONTINUING AMERICAN DILEMMA 7 (2011) (pointing out that studies by media scholars demonstrate that the mass media portrays criminals as blacks and victims as white and that "most white people assume the typical offender to be black");
19. Tracey L. McCain, The Interplay of Editorial and Prosecutorial Discretion in the Perpetuation of Racism in the Criminal Justice System, 25 COLUM. J.L. & SOC. PROBS. 601, 613-14, 621-28 (1992) (discussing pretrial racism in the media and prosecutorial discretion that perpetuates discrimination in criminal justice).
20. Numerous studies suggest that prosecutors are more prone to strike black potential jurors and defense attorneys are more prone to strike white potential jurors. Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. ECON. 1017, 1023 (2012);
21. see, e.g., David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. PA. J. CONST. L. 3, 10 (2001);
22. Shari Seidman Diamond et al., Achieving Diversity on the Jury: Jury Size and the Peremptory Challenge, 6 J. EMPIRICAL LEGAL STUD. 425, 425-26 (2009);
23. Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 LAW & HUM. BEHAV. 695, 696 (1999);
24. Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure, 31 LAW & HUM. BEHAV. 261, 262 (2007);
25. Billy M. Turner & Rickie D. Lovell, Race and Peremptory Challenges During Voir Dire: Do Prosecution and Defense Agree?, 14 J. CRIM. JUST. 61, 68 (1986). In a recent study, conviction rates for blacks and whites in the absence of potential black jurors were 81% and 66%, but when there was at least one potential black juror, those rates were 71% and 73%, suggesting that the application of criminal justice is highly uneven in the studied counties.
26. Other scholars have explained that family relationships may be at the root of the link between race and crime. See Amy L. Anderson, Individual and Contextual Influences on Delinquency: The Role of the Single-Parent Family, 30 J. CRIM. JUST. 575, 585 (2002);
27. Lynn D. Wardle, The Fall of Marital Family Stability and the Rise of Juvenile Delinquency, 10 J.L. & FAM. STUD. 83, 88 (2007).
28. Robert D. Crutchfield, Warranted Disparity? Questioning the Justification of Racial Disparity in Criminal Justice Processing, 36 COLUM. HUM. RTS. L. REV. 15, 20 (2004) (expanding on the extent to which racial differentials in arrests actually represent crime involvement given the potential bias in some jurisdictions);
29. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945, 966 (2006) ("[I]mplicit race bias is pervasive and is associated with discrimination against African Americans.").
30. However, a few scholars have found that racism is not to blame as much as other factors that cause more blacks to be incarcerated. See Alfred Blumstein, On the Racial Disproportionality of United States' Prison Populations, 73 J. CRIM. L. & CRIMINOLOGY 1259, 1261 (1982) (asserting that attacking discrimination in the criminal justice system will not likely have the desired effect on reducing prison populations);
31. Patrick A. Langan, Racism on Trial: New Evidence to Explain the Racial Composition of Prisons in the United States, 76 J. CRIM. L. & CRIMINOLOGY 666, 680, 682 (1985) (presenting a study that does not prove or disprove that racism exists but stating that if racism does exist it would only account for a small part of the disparate levels of blacks in state prisons).
32. But see Matt DeLisi & Bob Regoli, Race, Conventional Crime, and Criminal Justice: The Declining Importance of Skin Color, 27 J. CRIM. JUST. 549, 555 (1999) (presenting research indicating that the criminal justice system does not systematically discriminate against African Americans). Note that at least one scholar has mentioned that arrest rates are not helpful in determining the fairness of criminal justice decisions because there may be bias in police arrests.
33. Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. COLO. L. REV. 743, 747 (1993).
34. Clarence Lusane, In Perpetual Motion: The Continuing Significance of Race and America's Drug Crisis, 1994 U. CHI. LEGAL F. 83, 99.
35. Jamie Fellner, Race, Drugs, and Law Enforcement in the United States, 20 STAN. L. & POL'Y REV. 257, 269-70 (2009) (remarking that even though whites commit drug crimes in greater numbers, blacks are disproportionately arrested and incarcerated when comparing the two populations);
36. see also William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 1971 (2008).
37. See, e.g., Marvin D. Free, Jr., Racial Bias and the American Criminal Justice System: Race and Presentencing Revisited, 10 CRITICAL CRIMINOLOGY 195, 220 (2002) (finding evidence of discrimination in key criminal justice decision points);
38. Cassia Spohn, Race, Sex, and Pretrial Detention in Federal Court: Indirect Effects and Cumulative Disadvantage, 57 U. KAN. L. REV. 879, 898-99 (2009) (finding that being under the control of the criminal justice system increased the odds of pretrial detention for blacks but not for whites, and being employed or having more education decreased the likelihood of detention for whites but not for blacks, suggesting that judges "interpret the legally relevant criteria set forth in the bail statute in ways that disadvantage black offenders.");
39. c.f. Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 CRIMINOLOGY 873, 898 (2003) (finding that Hispanic defendants are more likely to be detained than white and black defendants, and racial/ethnic differences are most pronounced in drug cases).
40. Alan M. Dershowitz, The Law of Dangerousness: Some Fictions About Predictions, 23 J. LEGAL EDUC. 24, 27-29 (1970).
41. Shima Baradaran, Restoring the Presumption of Innocence, 72 OHIO ST. L.J. 723, 741-42 (2011).
42. BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE 149-54 (2007).
43. Robert J. Smith & Bidish J. Sarma, How and Why Race Continues to Influence the Administration of Justice in Louisiana, 72 LA. L. REV. 361, 405-06 (2012) (presenting hypothetical of how police choose to patrol lower socioeconomic area, resulting in increased arrests for black defendants, and how prosecutorial discretion then results in a harsher penalty, and how it relates to exclusion of black Americans from juries);
44. RANDALL KENNEDY, RACE, CRIME, AND THE LAW x-xi (1997) ("[A]t the end of the twentieth century, racially discriminatory decision-making remains influential though controversial. . . . [N]othing has poisoned race relations more than racially discriminatory policing pursuant to which blacks are watched, questioned, and detained more than others.");
45. Paul Butler, One Hundred Years of Race and Crime, 100 J. CRIM. L. & CRIMINOLOGY 1043, 1045 (2010);
46. Adam Gopnik, The Caging of America: Why Do We Lock Up So Many People?, THE NEW YORKER, Jan. 30, 2012, at 73-74 ("Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today-perhaps the fundamental fact, as slavery was the fundamental fact of 1850. . . . [It has become] a way of reimposing Jim Crow.");
47. Barbara Lee, Race Is Still a Factor in America, HUFFINGTON POST (Aug. 10, 2011, 10:02 PM), http:// www.huffingtonpost.com/rep-barbara-lee/race-is-still- a-factor-in-b-923908.html ("Simply put, race is a factor in the growing economic inequalities we have in this country, and we can no longer afford to sweep this issue under the rug. . . . African-American males and Latinos continue to be overrepresented in the criminal justice system-more than 6.5 times and 2.6 times more likely to be incarcerated than their white counterparts, respectively.");
48. Jacob Weisberg, The Man Who Won't Be Used, SLATE MAG. (Aug. 1, 2000, 4:06 PM), http://www.slate.com/articles/news-and-politics/ballot-box/2000/08/the- man-who-wont-be-used.html (reporting that Republican Colin Powell bemoaned that "racism and the legacy of racism still hobbles African- Americans. . . . [He] decried the way the country fails to provide a basic education or meaningful economic opportunities for young black men, choosing to deal with them instead through the criminal-justice system.").
49. Gary Ford, The New Jim Crow: Male and Female, South and North, from Cradle to Grave, Perception and Reality: Racial Disparity and Bias in America's Criminal Justice System, 11 RUTGERS RACE & L. REV. 324, 329 (2010) ("Other recent empirical studies provide support for blacks' perception that the justice system systematically treats blacks unfairly and much more punitively than whites. The studies demonstrate that blacks were far more likely than white defendants to be arrested, prosecuted, and incarcerated; specifically, they show that blacks were 'six times as likely to be incarcerated.'");
50. Ruth D. Peterson & Lauren J. Krivo, Race, Residence, and Violent Crime: A Structure of Inequality, 57 U. KAN. L. REV. 903, 903 (2009) (drawing on arguments by race scholars who "contend that the social organization of U.S. society is structured to produce and reinforce a racial order where whites are privileged over other groups").
51. Racial disparities found in legislation include the crack-cocaine sentencing disparity that creates disproportionately longer sentences for black drug offenders. Lisa Rossi, Obama Condemns Jena Charges, DES MOINES REG., Sept. 22, 2007, at 4B ("Those kind of inequities, I don't think anybody believes in. It's not a black issue or a white issue. I think all Americans are upset when they see the justice system not working the way that it should." (quoting President Barack Obama)).
52. Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 SEATTLE U. L. REV. 795, 795-97 (2012) (discussing how implicit racial bias impacts everyday prosecutorial decisionmaking).
53. Racial Disparities in the Criminal Justice System: Hearing Before the Subcomm. on Crime, Terrorism, & Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 8-10 (2009) [hereinafter Racial Disparities] (statement of Rep. Steve Cohen);
54. HUMAN RIGHTS WATCH, TARGETING BLACKS: DRUG LAW ENFORCEMENT AND RACE IN THE UNITED STATES 48 n.87 (May 2008) ("Because of mandatory sentencing legislation, the decision regarding what charges to bring effectively determines the sentence.").
55. JAMES AUSTIN ET AL., NAT'L POL'Y COMM., THE USE OF INCARCERATION IN THE UNITED STATES: NATIONAL POLICY WHITE PAPER 18-20 (drft. 2000);
56. Research Working Group & Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington's Criminal Justice System, 87 WASH. L. REV. 1, 28 (2012) [hereinafter Preliminary Report on Race] (discussing disparate treatment of minority defendants in pretrial release decisions, with blacks being held longer than whites charged with similar crimes);
57. M. Marit Rehavi & Sonja B. Starr, Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences 22 (U. of Michigan Law & Econ., Empirical Legal Studies Ctr., Paper No. 12-002, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1985377 (finding that black arrestees face significantly more severe charges "conditional on arrest offense and other observed characteristics"). However, apparent discrimination in pretrial release decisions could be based on the fact that blacks have longer records. Given the apparent goal of pretrial release decisions to deter violent crime, prior record can be a useful empirical element in predicting violence.
58. JAWJEONG WU, CITIZENSHIP STATUS, RACE, ETHNICITY, AND THEIR EFFECTS ON SENTENCING 156 (2011);
59. Mona Lynch, Crack Pipes and Policing: A Case Study of Institutional Racism and Remedial Action in Cleveland, 33 LAW & POL'Y 179, 179 (2011) (examining racially disparate police tactics against low-level drug offenders). For instance, in Washington, which has the highest proportionate rate of incarceration of black defendants, prosecutors were 75% less likely to recommend alternative sentences for black defendants than for similarly situated white defendants, and in King County, prosecutors recommended longer confinement sentences for black defendants.
60. Julie Stewart, Don't Blame Judges for Racial Disparity, HUFFINGTON POST (Feb. 8, 2012, 3:42 PM), http://www.huffingtonpost.com/julie-stewart/dont-blame- judges-for-rac-b-1260907.html (arguing that prosecutorial discretion is to blame for the fact that black defendants are charged with crimes that have mandatory minimum sentences more often than white defendants for the same conduct).
61. MATTHEW R. DUROSE ET AL., U.S. DEP'T JUSTICE, CONTACTS BETWEEN POLICE AND THE PUBLIC, 2005, at 1 (2007), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/cpp05.pdf (showing that in 2005, the total number of white drivers stopped by the police exceeded that of black drivers, but black drivers were much more likely to be searched once they had been stopped);
62. Robert A. Rankin, Clinton Calls for Understanding, He Urged Blacks and Whites To Talk, Listen and Learn. He Criticized Louis Farrakhan, Though Not by Name, PHILA. INQUIRER, Oct. 17, 1995, at A1 (reporting that President Clinton said that while most police are honest lawmen, "[w]e have to root out the remnants of racism in our police departments.");
63. Press Release, Senator Ben Cardin, Cardin, Specter Introduce Bill to Return Equal Protection Under the Law To U.S. Justice System (Feb. 27, 2009), available at http://www.cardin.senate.gov/newsroom/press/release/cardin-specter- introduce-bill-to-return-equal-protection-under-the-lawto- us-justice-system (reporting that in response to a 2007 study, Senator Cardin stated that "[t]hese types of disparities and the perception of bias are unacceptable and we should take bold steps to correct these injustices. . . . We must follow President Obama's call to insist on a full measure of justice in every aspect of American life.").
64. Other recent studies have found that black drivers were more likely to be pulled over than other minorities, even though they had a lower probability of carrying large amounts of drugs than other minorities. See Katherine Y. Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction Absent Racial Profiling, 54 DUKE L.J. 1089, 1113, 1132-35 (2005).
65. Indeed, in many high profile federal charges and executions, discussions of racial bias are at the forefront. See, e.g., Clinton Postpones Federal Execution; Issuing a Stay: The Last Federal Execution Involved a Hanging in 1963 in Iowa, TELEGRAPH HERALD, Dec. 8, 2000, at B9 ("In deciding to stay Garza's execution until June 2001, Clinton said he wanted to give the Justice Department more time to gather and properly analyze information about racial and geographic disparities in the federal death penalty system . . . [and that examination of] the possible racial and regional bias should be completed before the United States moves forward . . . [because] 'there is no room for error'");
66. Eric Houston, Crime and Punishment: Minorities Get Most Serious Felony Charges, Study Says, SEATTLE POST-INTELLIGENCER, Nov. 4, 1995, at A1 ("'People of color get the short shrift of it,' said state Supreme Court Justice Charles Smith, who announced the findings yesterday at a news conference. 'The system is designed to prevent racial bias but, subjectively, bias enters into it'").
67. Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 318 nn.1-2 (1987);
68. See Summary and Recommendations, HUMAN RIGHTS WATCH, UNITED STATES: PUNISHMENT AND PREJUDICE: RACIAL DISPARITIES IN THE WAR ON DRUGS (May 2000), available at http://www.hrw.org/legacy/reports/2000/usa/Rcedrg00.htm#P54-1086;
69. see also Graham Boyd, Collateral Damage in the War on Drugs, 47 VILL. L. REV. 839, 846 (2002);
70. Abbe Smith, Can You Be A Good Person and A Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355, 370 n.104 (2001);
71. Keith Rushing, The Reasons Why So Many Black People Are in Prison Go Well Beyond Profiling, HUFFINGTON POST (June 23, 2011, 4:55 PM), http://www.huffingtonpost.com/keith-rushing/the-reasons-why-so-many-b-b-883310. html.
72. Arthur H. Garrison, Disproportionate Incarceration of African Americans: What History and the First Decade of Twenty-first Century Have Brought, 11 J. INST. JUST. & INT'L STUD. 87, 92 (2011) (asserting that "the war on drugs . . . drastically increased the disproportionate representation of African-Americans in federal and state prisons");
73. Lizbet Simmons, Buying into Prison, and Selling Kids Short, 6 MODERN AM. 51 (2011) (noting that a significant component of the prison population expansion during the war on crime was the result of disproportionately high incarceration rates for African Americans).
74. James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow, 87 N.Y.U. L. REV. 21, 48 (2012).
75. DORIS J. JAMES, U.S. DEP'T JUSTICE, PROFILE OF JAIL INMATES, 2002, at 1 (2004), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pji02.pdf (comparing data from 1996 to 2002).
76. While some violent crime is drug related, the Bureau of Justice Statistics estimates that in 2007 only 3.9% of murders were drug related. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, Drugs and Crime Facts, http:// bjs.ojp.usdoj.gov/content/dcf/duc.cfm (last visited Sept. 23, 2012, 1:51 PM) (explaining that murders that occurred specifically during a narcotics felony, such as drug trafficking or manufacturing, are considered drug related).
77. MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA 65 (1995).
78. GARY LAFREE, LOSING LEGITIMACY: STREET CRIME AND THE DECLINE OF SOCIAL INSTITUTIONS IN AMERICA 48-52 (1998) (arguing that social institutions are the key to understanding the U.S. crime wave; crime has increased along with growing political distrust, economic stress, and family disintegration);
79. DAVID M. KENNEDY, DON'T SHOOT: ONE MAN, A STREET FELLOWSHIP, AND THE END OF VIOLENCE IN INNER-CITY AMERICA 31 (2011) (stating that one out of every 200 young black men is killed every year);
80. HENRY RUTH & KEVIN R. REITZ, THE CHALLENGE OF CRIME: RETHINKING OUR RESPONSE 33 (2003) (showing that black arrest rates for rape are about four times higher than whites, and burglary and theft are about double white arrest rates). The report rates of serious crimes, like murder, are generally viewed as the most reliable among the Uniform Crime Reports.
81. Recent critics also point to several diseased areas of the criminal justice system, including its federalist structure, inequitable legislative policy, and lack of legal counsel. See, e.g., TASK FORCE ON RACE & CRIM. JUST. SYS., PRELIMINARY REPORT ON RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM 14 (2011)
82. reprinted in 87 WASH L. REV. 1, 22-25 (2012) (finding that "[p]olicies can produce foreseeable, if unintended, harms that run along racial lines");
83. Matthew P. Main, Promoting Self-Sufficiency? How HRA's Exclusion of Incarceration from the Definition of "Temporary Absence" Contradicts Statutory Mandates and Hurts New York Families, 14 CUNY L. REV. 105, 137-38 (2010) (identifying obstacles that low-income defendants face in the criminal justice system, including "an inability to afford adequate legal defense to advocate on their behalf" and being "unjustifiably targeted");
84. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 843-44 (2006) (arguing that "America's criminal justice system has a federalism problem" because Congress "criminalizes too much," "sentences too harshly," and "devotes far too much legislative energy to making law for the occasional federal prosecution, instead of regulating-and appropriating funds for-the local officials who do the real work of catching and punishing criminals"). These criticisms should all be studied individually, but are not addressed here.
85. Doris Marie Provine, Race and Inequality in the War on Drugs, 7 ANN. REV. L. SOC. SCI. 41, 41 (2011) (explaining that "a pervasive ideology of color blindness discourages serious discussion of inherent racial bias in the criminal justice system").
86. see also Clyde E. Murphy, Racial Discrimination in the Criminal Justice System, 17 N.C. CENT. L.J. 171, 188 (1988) (suggesting that the criminal justice system has not escaped the effects of racism and discrimination that have historically existed in America);
87. Robert J. Sampson & Janet L. Lauritsen, Racial and Ethnic Disparities in Crime and Criminal Justice in the United States, 21 CRIME & JUST. 311, 355-56 (1997) (asserting that indirect discrimination affects the criminal justice system and stems from initial disadvantages amplified over time).
88. David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265, 297 (1999) (describing a situation where less white defendants are convicted and sent to prison than black defendants who also received higher sentences than whites for the same crimes);
89. Darrell Steffensmeier, Jeffery Ulmer & John Kramer, The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black and Male, 36 CRIMINOLOGY 763, 786 (1998) (analyzing statewide sentencing outcomes in Pennsylvania for 1989-1992, and finding that "young black males receive more severe sentences than any other race, age, and gender combination").
90. relying on United States v. Brignoni-Ponce, 422 U.S. 873 (1975), it seems it would be "permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search").
91. Both Whren v. United States, 517 U.S. 806 (1996)
92. Alexander v. Sandoval, 523 U.S. 275 (2001), "wiped out racial profiling litigation nationwide" by requiring intent to discriminate by race.
93. Also, the Supreme Court has made it clear that it believes that complaints about the police are overblown and that overseeing complicated policing is better left to the executive branch. See City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983);
94. Rizzo v. Goode, 423 U.S. 362, 378-80 (1976).
95. This is evident in cases such as McCleskey v. Kemp, 481 U.S. 279 (1987)
96. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)
97. Washington v. Davis, 426 U.S. 229 (1976).
98. In McCleskey v. Kemp, the Supreme Court upheld a capital sentence in spite of evidence of significant racial disparity, exemplifying the logic of colorblindness as seen in the judicial system. Id. The Supreme Court recognized the compelling evidence of an inequitable criminal justice system, the fundamental unfairness present in drug sentencing laws, and the disparity in drug law enforcement policies and practices. See McCleskey, 481 U.S. at 286-88. However, the Court rejected McClesky's claim of discrimination.
99. For example, as a result of the Court's holding in United States v. Armstrong, 517 U.S. 456 (1996), a defendant claiming selective prosecution must "offer in advance the very evidence that generally can be obtained only through discovery of the prosecutor's file."
100. See Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. CRIM. L. & CRIMINOLOGY 829, 885, 936 (2001) (discussing "victimless [drug] possession cases" differing from those with victims and injuries).
101. Timothy C. Hart & Callie Rennison, U.S. DEP'T JUSTICE, REPORTING CRIME TO THE POLICE: 1992-2001, at 4 (2003), available at http://bjs.ojp.usdoj. gov/content/pub/pdf/rcp00.pdf (reporting that 90% of violence in which the victim was shot was reported to the police).
102. Id. See generally SUBSTANCE ABUSE AND MENTAL HEALTH DATA ARCHIVE, NATIONAL SURVEY ON DRUG USE AND HEALTH (2002), http://dx.doi.org/10.3886/ ICPSR03903.V3.
103. James Forman, Jr., Community Policing and Youth as Assets, 95 J. CRIM. L. & CRIMINOLOGY 1, 28 (2004). Through research, Forman has come to believe that many African American youths' acts of violence have often been closely connected to other youths feeling unsafe in that environment.
104. See Shawn D. Bushway & Anne Morrison Piehl, Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing, 35 LAW & SOC'Y REV. 733, 740-42 (2001) (reviewing studies of judicial discretion used to stray from sentencing guidelines and related claims of racial bias);
105. Ojmarrh Mitchell, A Meta-Analysis of Race and Sentencing Research: Explaining the Inconsistencies, 21 J. QUANTITATIVE CRIMINOLOGY 439, 462-64 (2005) (reviewing studies on racial discrimination in criminal sentencing and concluding lack of racial neutrality).
106. But see Patrick A. Langan, No Racism in the Justice System, 117 PUB. INT. 48, 51 (1994) (examining data from a Justice Department Survey about racial bias in the criminal justice system and concluding that no racial bias exists).
107. Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 HARV. L. REV. 1255, 1258-59 (1994) ("[S]ome of the policies most heatedly criticized by certain sectors of black communities are supported and enforced by other African-Americans within these same communities.");
108. see also JOHN MONAHAN, PREDICTING VIOLENT BEHAVIOR: AN ASSESSMENT OF CLINICAL TECHNIQUES 32 (1981) (noting that some of the "principal statistical correlates of future violent behavior are . . . sex, age, race, [and] socioeconomic status");
109. John S. Goldkamp, Prediction in Criminal Justice Policy Development, 9 CRIME & JUST. 103, 129-30 (1987) (noting that critics of prediction "fear that reliance on empirical modeling may institutionalize discriminatory practices");
110. Joan Petersilia & Susan Turner, Guideline-Based Justice: Prediction and Racial Minorities, 9 CRIME & JUST. 151, 167 (1987) (suggesting that the expanded use of racially correlated factors in prediction "may actually increase racial disparities in sentencing, probation supervision, and prison time served");
111. Michael Tonry, Prediction and Classification: Legal and Ethical Issues, 9 CRIME & JUST. 367, 399 (1987) (noting that the use of prediction may indirectly result in the occurrence of race effects if the prediction system "incorporate[ s] variables that are correlated with race").
112. See Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90 TEX. L. REV. 497, 502-03 (2012) (setting forth factors that can help determine who may commit pretrial crime and whether more defendants can safely be released pretrial without increasing crime rates.);
113. Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 3-4 (2003) (assessing the claims and counterclaims made about the psychological and prediction criteria for preventive detention.)
114. see also Yoram Margalioth, Looking at Prediction from an Economics Perspective: A Response to Harcourt's Against Prediction, 33 LAW & SOC. INQUIRY 243, 248-49 (2008). Harcourt claims that profiling is unlikely to be efficient when it is used to target minority groups.
115. Others disagree and believe that criminal profiling has been effective in deterring crime. Russell L. Jones, Bernard E. Harcourt's Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, 4 J.L. ECON. & POL'Y 219, 219 (2007) (book review) ("Scholars who support criminal profiles suggest that more streamlined suspect pools permit law enforcement officers to better target limited resources to protect the non-offending population.");
116. see Brandon del Pozo, Guided by Race: An Ethical and Policy Analysis of Racial Profiling in Law Enforcement Decisionmaking, 1 QUEENSLAND U. TECH. L. & JUST. J. 266, 272 (2001).
117. Judges fear incorrectly predicting which defendants will commit crimes. This in turn leads judges to fear releasing individuals and being personally blamed for pretrial crimes or crimes on parole. This fear is legitimate because society is weary of the heinous crimes that are committed by released defendants. See John A. Wilson, Don't Blame Bail Reform, WASH. POST, Sept. 20, 1992, at C8 (discussing community outrage at the carjacking and murder of a woman after a man was released pending trial on felony drug charges);
118. see also George E. Dix, Bail System Requires a Fresh Approach, TEX. LAW., Nov. 15, 1993, at 12 (questioning the Texas practice of reliance on money bail, which allows potentially dangerous defendants who can pay the ability to make bail);
119. Editorial, When a Life Becomes Cheaper Than a BMW, WASH. TIMES, Sept. 14, 1992, at E2 (discussing a crime where two men dragged a woman from her car and killed her when one of these men could have been detained under the city's new bail law, but the prosecutor chose not to pursue preventative detention);
120. William H. Freivogel, Drug, Gun Culture Tests the Definition of Excessive Bail, ST. LOUIS POST-DISPATCH, Dec. 10, 1991, at 1C (arguing for a bill that would deny bail to potentially dangerous young suspects who don't have criminal records by using the example of a young man who shot and killed a woman while on bail for assault charges);
121. Jason Geary, Homeless Man's Jailing Questioned, LEDGER (July 11, 2006, 12:01 AM), http://www.theledger.com/article/20060711/NEWS/607110400?p=1&tc= pg (discussing judicial scrutiny after a man with a record of probation violations was convicted of kidnapping and killing an eleven-year-old girl);
122. Dirk Johnson, Pretrial Detention: 2 Sides of an Issue, N.Y. TIMES, July 13, 1987, at A13 (analyzing the debate over preventative detention by comparing the case of a convicted burglar who, before being acquitted, spent four months in jail after he was denied bail, with the case of a man who was granted bail after raping and beating a woman, and who then drove to court with another woman in his trunk who he later killed).
123. Rather than speaking in terms of elasticity, Margalioth and Blumkin engage in marginal analysis between individuals who are equally likely to commit a crime or abide by the law (marginal offenders), arguing that law enforcement should seek to minimize crime by deterring marginal offenders because they will be more responsive than the higher offending group. Yoram Margalioth & Tomer Blumkin, Targeting the Majority: Redesigning Racial Profiling, 24 YALE L. & POL'Y REV. 317, 318-19 (2006).
124. Eda Katharine Tinto, The Role of Gender and Relationship in Reforming the Rockefeller Drug Laws, 76 N.Y.U. L. REV. 906, 942-43 (2001) (arguing that options such as drug treatment are less costly and more effective at reducing drug crime than imprisonment).
125. Tracey Meares, The Legitimacy of Police Among Young African-American Men, 92 MARQ. L. REV. 651, 654 (2009);
126. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1273, 1275 (2004) (offering statistics demonstrating that while whites use illegal drugs more often, a larger proportion of blacks were imprisoned for drug charges in 1998).
127. "[I]ncarceration plays a role in constructing the meaning of race in American society by defining race and crime in terms of each other," and this definition of blacks as criminals may also prompt people to associate other negative characteristics with blacks. R. Richard Banks, Beyond Profiling: Race, Policing, and the Drug War, 56 STAN. L. REV. 571, 598 (2003).
128. Banks views the criminal justice system as playing a role in the socialization of young black males and in the development of black popular culture. Id. It can also become a self-fulfilling prophecy, as racial stereotypes cause police to monitor blacks for criminal behavior more frequently and extensively than whites, resulting in a greater portion of arrested and incarcerated individuals being black. Katherine Y. Barnes, Assessing the Counterfactual: The Efficacy of Drug Interdiction Absent Racial Profiling, 54 DUKE L.J. 1089, 1093 (2005). Thus, "[o]ver decades, a stereotype that blacks are more likely to engage in criminal activity can transform itself into large and statistically significant differences" between blacks and whites.
129. Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 MICH. L. REV. 651, 659-60 (2002). After controlling for several variables, including characteristics of the driver such as gender and race, characteristics of the vehicle such as luxury cars and large commercial trucks, state or region in which the car was registered, characteristics of the encounter such as traffic violations, time of day, and direction of travel, Barnes discovered that "the driver's race is the most salient factor in a trooper's decision to search a stopped vehicle."
130. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 VA. L. REV. 391, 406-07 (2006).
131. See Daniel Weiss, California's Inequitable Parole System: A Proposal to Reestablish Fairness, 78 S. CAL. L. REV. 1573, 1575 (2005).
132. Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 MINN. L. REV 335, 380 (1990).
133. Norval Morris & Marc Miller, Predictions of Dangerousness, 6 CRIME & JUST. 1, 2-5 (1985). This list should not be taken as exhaustive.
134. see also Elyce H. Zenoff, Controlling the Dangers of Dangerousness: The ABA Standards and Beyond, 53 GEO. WASH. L. REV. 562, 562 n.2 (1985) (including sentencing, probation, parole, sexual offenses, civil commitment, and death penalty cases in a long list of decisions that rely on findings of dangerousness). Some find it alarming that "the use of dangerousness in death penalty deliberations and in setting prison terms is increasing."
135. Civil commitment laws for sexually violent predators generally require a risk that the individual will engage in repeated acts of sexual violence if not incarcerated. Melissa Hamilton, Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws, 83 TEMP. L. REV. 697, 703-04 (2011) (using Kansas law as an example).
136. Under Texas capital felony law, the jury is required to decide, among other things, whether the individual convicted of a capital crime would likely "commit criminal acts of violence that would constitute a continuing threat to society." George E. Dix, Administration of the Texas Death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness, 55 TEX. L. REV. 1343, 1352 (1977). If the jury answers "yes" to that inquiry and others, the judge is required to impose the death penalty.
137. Other states have similar schemes that include jury determinations of dangerousness before imposing the death penalty. See Mitzi Dorland & Daniel Krauss, The Danger of Dangerousness in Capital Sentencing: Exacerbating the Problem of Arbitrary and Capricious Decision-Making, 29 LAW & PSYCHOL. REV. 63, 64 n.5 (2005).
138. In California, both the governor and the parole board make dangerousness determinations to decide if the inmate would pose a risk to society if released. See Pearson v. Muntz, 606 F.3d 606, 611 (9th Cir. 2010) (per curiam).
139. With regard to expert testimony about dangerousness, the trial judge acts as the gatekeeper, determining what testimony can be considered by the jury in making its determination of dangerousness. M. Neil Browne & Ronda R. Harrison- Spoerl, Putting Expert Testimony in its Epistemological Place: What Predictions of Dangerousness in Court Can Teach Us, 91 MARQ. L. REV. 1119, 1130-40 (2008).
140. But see Sara Steen et al., Images of Danger and Culpability: Racial Stereotyping, Case Processing, and Criminal Sentencing, 43 CRIMINOLOGY 435, 437-38 (2005) (arguing that sentencing disparities are due in part to racial stereotypes that affect perceptions of danger).
141. The Violence Risk Appraisal Guide (VRAG) considers criminal history, failures during a prior conditional release, marital status, as well as other factors to predict dangerousness. Daniel A. Krauss et al., Limited Expertise and Experts: Problems with the Continued Use of Future Dangerousness in Capital Sentencing, in MENTAL DISORDER AND CRIMINAL LAW: RESPONSIBILITY, PUNISHMENT AND COMPETENCE 135, 140-41 (Robert F. Schopp et al. eds., 2009). While "education, vocational skills, employment record, family ties, community ties, age, mental and emotional condition, and substance abuse" were all listed as factors by the federal sentencing commission that "are not ordinarily relevant in the determination of a sentence," they are still used at times.
142. See, e.g., MARY T. PHILLIPS, NEW YORK CITY CRIMINAL JUSTICE AGENCY, INC., PRETRIAL DETENTION AND CASE OUTCOMES, PART 2: FELONY CASES 25-36 (2008) (confirming earlier studies demonstrating the link between pretrial detention and an increased likelihood of conviction).
143. See David Cole, The Paradox of Race and Crime: A Comment on Randall Kennedy's "Politics of Distinction," 83 GEO. L.J. 2547, 2566 (1995) (arguing that "[r]acial stereotypes are likely to influence the police officer's decision about whom to watch or stop");
144. Kenneth B. Nunn, The "Darden Dilemma": Should African Americans Prosecute Crimes?, 68 FORDHAM L. REV. 1473, 1489-91 (2000) (arguing that police disproportionately target African Americans and overpolice black neighborhoods);
145. See Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 COLUM. L. REV. 1655, 1656-57 (2010) (arguing that the reasoning behind prosecutorial discretion in charging falls into one of three categories: (i) "lack [of] sufficient proof of legal guilt, (ii) . . . preserv[ing] limited resources, or (iii) . . . conclud[ing] that the prospective defendant is insufficiently blameworthy");
146. David Cole, What's Criminology Got to Do with It?, 48 STAN. L. REV. 1605, 1617 (1996) (noting that prosecutorial discretion extends to plea bargaining and decisions of whether or not to prosecute);
147. Ellen S. Podgor, Race-ing Prosecutors' Ethics Codes, 44 HARV. C.R.-C.L. L. REV. 461, 464 (2009) (noting that "there are few legal restrictions to prosecutors in their decisions of whom to charge, what charges to use, and when to proceed or not proceed against an individual");
148. Andrew E. Taslitz, Judging Jena's D.A.: The Prosecutor and Racial Esteem, 44 HARV. C.R.-C.L L. REV. 393, 423 (2009) (noting that prosecutorial discretion extends to whether or not to charge a juvenile as an adult).
149. See Christopher M. Alexander, Indeterminate Sentencing: An Analysis of Sentencing in America, 70 S. CAL. L. REV. 1717, 1730 (1997) (discussing a study that indicated that African American males "receive longer sentences than similarly situated offenders of other races");
150. Margareth Etienne, Pain and Race: A New Understanding of Race-Based Sentencing Disparities, 3 U. ST. THOMAS L.J. 496, 502 (2006) (explaining that "[i]t has taken approximately eighty years of research, in four distinct
151. See Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 YALE L.J. 543, 543 (1960) ("Police decisions not to invoke the criminal process largely determine the outer limits of law enforcement. By such decisions, the police define the ambit of discretion throughout the process of other decision- makers-prosecutor, grand and petit jury, judge, probation officer, correction authority, and parole and pardon boards.");
152. But see Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 18 (1998) (arguing that prosecutors' discretion gives them "more power than any other criminal justice officials").
153. I also do not discuss judicial sentencing because much of the race aggregated data has recently been presented by the U.S. Sentencing Commission, and we make note of it here and consider it with our conclusions. See U.S. SENTENCING COMM'N, REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM xxix, xxxii- xxxiii (2011).
154. These data come from the Department of Justice's State Court Processing Statistics ("SCPS") from 1988 to 2006. SCPS, formerly known as the National Pretrial Reporting Program, tracks defendants who are arrested on felony charges. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, STATE COURT PROCESSING STATISTICS (SCPS), available at http://bjs.ojp.usdoj.gov/index. cfm?ty=dcdetail&iid=282. The survey takes data from May of each year, with sampling done in the large jurisdictions, and provides weights that allow users to reconstruct a sample representative of the 75 counties.
155. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, SPECIAL REPORT, FEDERAL OFFENSES AND OFFENDERS, PRE-TRIAL RELEASE AND MISCONDUCT 1, 4, 5 (1985), available at http://www.bjs.gov/content/pub/pdf/prm-foo.pdf (finding that race, sex, and prior criminal record, among other factors, are helpful to determine whether a person will commit a new crime on release, and finding higher levels of arrest for minority defendants);
156. QUDSIA SIDDIQI, N.Y. CITY CRIMINAL JUSTICE AGENCY, PREDICTING THE LIKELIHOOD OF PRETRIAL FAILURE TO APPEAR AND/OR RE-ARREST FOR A VIOLENT OFFENSE AMONG NEW YORK CITY DEFENDANTS: AN ANALYSIS OF THE 2001 DATASET 49-50 (2009) (finding that black and Hispanic defendants were more likely to fail to appear and be rearrested for violent offenses);
157. See M. Dwayne Smith, The Era of Increased Violence in the United States: Age, Period, or Cohort Effect?, 27 SOC. Q. 239, 240 (1986) (noting that homicide statistics are the most accurate with little disparity between number reported and number committed).
158. But see Tim Newburn, "Tough on Crime": Penal Penalty in England and Wales, in CRIME, PUNISHMENT, AND POLITICS IN COMPARATIVE PERSPECTIVE 425, 432 (Michael Tonry, ed., 2007) (noting that in 2004 the percentage of violent crime reported to the police in England and Wales was 45%).
159. It may be that rearrest and conviction rates for black defendants are based on discriminatory policies that allow more blacks to be arrested due to higher enforcement rates against blacks than against defendants of other races. See, e.g., HARRY G. LEVINE, ET AL., MARIJUANA ARREST RESEARCH PROJECT, ARRESTING BLACKS FOR MARIJUANA IN CALIFORNIA: POSSESSION ARRESTS IN 25 CITIES 2006-08, at 5-6 (2010) (discussing a large scale California study that reveals that while U.S. government surveys consistently find that young whites use marijuana at higher rates than young blacks, the people disproportionately arrested for marijuana possession are young blacks and Latinos).
160. Indeed, the Bureau of Justice Statistics confirms in the National Crime Victimization Survey that serious violent crimes are reported to police more than any other crime, except motor vehicle theft and burglary. JENNIFER L. TRUMAN, U.S. DEP'T JUSTICE, NATIONAL CRIME VICTIMIZATION SURVEY: CRIMINAL VICTIMIZATION, 2010 10 (2011), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/cv10.pdf;
161. see also Wesley G. Skogan, Dimensions of the Dark Figure of Unreported Crime, 23 CRIME & DELINQ. 41, 48 (1977) (noting that "[t]he bulk of unreported personal crime also appears to be less serious than incidents which were brought to the attention of the police").
162. William M. Landes, An Economic Analysis of the Courts, 14 J.L. & ECON. 61, 63 (1971) (constructing a model on the assumption that prosecutors seek to "maximize the expected number of convictions weighted by their respective" sentences, with a preference for longer sentences);
163. Daniel C. Richman, Old Chief v. United States: Stipulating Away Prosecutorial Accountability?, 83 VA. L. REV. 939, 966-67 (1997) (arguing that even though it is simplistic to assume that "all prosecutors are primarily interested in maximizing convictions . . . the need to maximize convictions will be an inescapable environmental constraint");
164. Sonja B. Starr, Sentence Reduction as a Remedy for Prosecutorial Misconduct, 97 GEO. L.J. 1509, 1513 (2009) (suggesting that the threat of sentence reduction may incentivize prosecutors to engage in less misconduct).
165. While this Section considers arrests and detention decisions, it does not intend to explain the prosecutor's role in these considerations. Prosecutors have a great deal of discretion in deciding what initial charge to bring against a defendant, and it might seem that the initial charge is somewhat arbitrary. While this may be true, it does not affect the ability to estimate how that somewhat arbitrary choice of initial charge is related to later crime. If, in fact, there is no useful predictive information in the initial charge, the model will show this. If prosecutors game the initial charge to get a desired bail outcome, this would also not matter for our prediction unless judges started using a new model for determining bail. Thus, for example, if judges adopted a model akin to the one presented here, prosecutors might respond to the change with a different mix of initial charges which could upset the predictions. Judges could then reestimate their model under this new mix of charges. One, then, can imagine an iterative process as prosecutors adapt and judges respond, likely ending fairly quickly in a new stable equilibrium behavior by judges and prosecutors, which is what new predictive models would estimate. And while not the focus of this Article, this analysis demonstrates that prosecutors possibly hold a more important role than either judges or police officers when it comes to racial bias. This observation proves true in the sentencing front, for example, as prosecutors often take the lead in reducing sentences below the sentencing guidelines, more often than judges do. See U.S. SENTENCING COMMISSION, FY11 FINAL QUARTERLY DATA REPORT, TABLE 1 (2011) (demonstrating that federal prosecutors are the primary driver behind lower-than-recommended sentences (26.3%) as compared to judge-initiated sentences (17.4%)).
166. Philip J. Cook & John H. Laub, The Unprecedented Epidemic in Youth Violence, in 24 CRIME AND JUSTICE: YOUTH VIOLENCE 27, 32 (Michael Tonry ed., 1998) (explaining that criminologists often study trends and patterns in crime by using arrest data which provides "reasonably accurate measures of the relative rates of offending by age, sex and race," and indeed, comparing arrest data with National Crime Victim Survey data, where available, provides some value).
167. Michael Tonry & Matthew Melewski, The Malign Effects of Drug and Crime Control Policies on Black Americans, in 37 CRIME AND JUSTICE: A REVIEW OF RESEARCH 1, 5-7 (Michael Tonry ed., 2008).
168. See DEP'T OF JUSTICE FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES, 2004: PERSONS ARRESTED tbl.43a, http://www2.fbi.gov/ucr/cius-04/ documents/CIUS-2004-Section4adj.pdf.
169. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, Table 40: Personal Crimes of Violence, 2004, http://bjs.ojp.usdoj.gov/content/pub/pdf/cvus/ previous/cvus40.pdf;
170. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T JUSTICE, Table 46: Personal Crimes of Violence, 2004, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ cvus/previous/cvus46.pdf. This excludes attempts or threats.
171. Michael Tonry, Racial Politics, Racial Disparities, and the War on Crime, 40 CRIME & DELINQ. 475, 485-87 (1994) (noting that drug deals often take place outdoors in poor minority areas and are more likely to be sold to strangers and new acquaintances which increases the risk of being caught); STUNTZ, supra note 3, at 54 (noting that poor blacks (outside the South) are often concentrated in inner cities whereas poor whites are more dispersed).
172. Bruce L. Benson et al., Police Bureaucracies, Their Incentives, and the War on Drugs, 83 PUB. CHOICE 21, 38 (1995) (presenting empirical evidence suggesting that an increased focus on drug enforcement is a result of the Comprehensive Crime Act of 1984 that "included a section that mandated a sharing of assets seized" from drug crimes);
173. Radley Balko, Driven By Drug War Incentives, Cops Target Pot Smokers, Brush Off Victims Of Violent Crime, HUFFINGTON POST (Nov. 25, 2011, 12:38 PM), http://www.huffingtonpost.com/2011/11/21/drug-war-incentives-police-violent- crime-n-1105701.html?page=1 (arguing that "'[t]he availability of huge federal antidrug grants incentivizes [police] departments to . . . abandon real crime victims . . . in favor of ratcheting up their drug arrest stats'" (quoting Los Angeles Deputy Chief of Police Stephen Downing)).
174. See Mark A.R. Kleiman, Toward (More Nearly) Optimal Sentencing for Drug Offenders, 3 CRIMINOLOGY & PUB. POL'Y 435, 435, 439 (2004) (noting that "[s]entencing is one way prosecutors keep score" and drug crimes require less proof than violent crimes);
175. Richard S. Frase, What Explains Persistent Racial Disproportionality in Minnesota's Prison and Jail Populations?, in 38 CRIME & JUSTICE: A REVIEW OF RESEARCH 201, 242 (Michael Tonry ed., 2009) ("It is also possible that in some states, black arrest rates are artificially suppressed by police decisions not fully to enforce the law in black neighborhoods-a form of bias against black victims.")
176. See, e.g., VANESSA BARKER, THE POLITICS OF IMPRISONMENT: HOW THE DEMOCRATIC PROCESS SHAPES THE WAY AMERICA PUNISHES OFFENDERS 149-50 (2009) (demonstrating that Harlem activists fought hard to institute strict drug laws in the 1960s to cut rising crime rates and increase police support);
177. Tracey L. Mears and Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. CHI. LEGAL F. 197, 198-99 (explaining that "residents of inner city communities increasingly demand law enforcement measures in response to the crime problems they face").
178. William J. Stuntz, Race, Class, and Drugs, 98 COLUM. L. REV. 1795, 1798 (1998) (noting that the overwhelming crack arrests in black neighborhoods are collectively a "double-edged" sword that "looks racist").
179. Compare Paul J. Goldstein, The Drugs/Violence Nexus: A Tripartite Conceptual Framework, 39 J. DRUG ISSUES 143, 143 (1985) (stating that drug use is known to be causally related to violent crime)
180. Eric J. Workowski, Criminal Violence and Drug Use: An Exploratory Study Among Substance Abusers in Residential Treatment, 37 J. OFFENDER REHABILITATION 109, 109-10 (2003) (noting that links between drug use and violence are often assumed).
181. See TRACEY KYCKELHAHN & THOMAS H. COHEN, U.S. DEP'T JUSTICE, STATE COURT PROCESSING STATISTICS, 2004: FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2004 2 tbl.1 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ fdluc04.pdf.
182. John F. Pfaff, The Causes of Growth in Prison Admissions and Populations 37-38 (July 12, 2011), available at http://ssrn.com/abstract=1884674.
183. see also MARC MAUER, RACE TO INCARCERATE 141 (2d ed. 2006) (noting that "whether one acquires a criminal record is itself very much a function of race, geographical location, and other factors" (emphasis added));
184. Alexander Alvarez & Ronet D. Bachman, American Indians and Sentencing Disparity: An Arizona Test, in RACE, CRIME, AND JUSTICE: A READER 319, 327 (Shaun L. Gabbidon & Helen Taylor Greene eds., 2005) (arguing that "for certain crimes and certain individuals, there may be a greater likelihood of official treatment and prosecution," creating a situation where "minority offenders have a greater chance of receiving a prior record while Caucasians may be more likely to escape this labeling process").
185. See, e.g., WILLARD GAYLIN, PARTIAL JUSTICE: A STUDY OF BIAS IN SENTENCING 5 (1974) (suggesting that judges' sentencing decisions are shaped by the judges' shaping experiences and influences);
186. Adam Benforado, Frames of Injustice: The Bias We Overlook, 85 IND. L.J. 1333, 1367 (2010) (noting that blacks receive higher bail amounts and longer sentences);
187. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1202 (2009) (pointing out that sentencing lengths and likelihoods of incarceration are sometimes related to judge bias).
188. David S. Abrams et al., Do Judges Vary in Their Treatment of Race?, J. LEGAL STUD. (forthcoming 2012) (manuscript at 3-4) (examining randomly assigned cases to identify judge fixed effects to find significant judge effects on incarceration rates between minorities but no significant impact on sentence lengths).
189. See Shawn D. Bushway & Jonah B. Gelbach, Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model 39 (Feb. 14, 2011), available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id=1990324. Looking at the differences of pretrial release between white and black felony defendants, this study concluded that judges value the lost freedom of blacks at thousands of dollars less than whites, resulting in higher detention rates for blacks. While this is an interesting approach to modeling judicial hold decisions, Bushway and Gelbach assume that the unobserved characteristics that differ across race are captured by different probabilities of failure to appear and that the judge's private information about these probabilities for a given defendant is revealed by the bail amount she sets. These assumptions allow them to estimate their model. However, this Article's data provide persuasive evidence that rearrest rates for violent crimes also differ substantially by race, even accounting for differences in failure to appear. Not accounting for important differences in violent crime likely biases their results towards finding more racial prejudice than actually exists, as this risk will be relabeled prejudice.
190. see also Erica Beecher-Monas & Edgar Garcia- Rill, Genetic Predictions of Future Dangerousness: Is There a Blueprint for Violence?, 69 LAW & CONTEMP. PROBS. 301, 308 (2006) ("Predicting future dangerousness has become important as the criminal justice system has changed its focus from punishment to preventing violent recidivism.");
191. J.W. Looney, Neuroscience's New Techniques for Evaluating Future Dangerousness: Are We Returning to Lombroso's Biological Criminality?, 32 U. ARK. LITTLE ROCK L. REV. 301, 302-04 (2010) (asserting that the significant increase in statutes requiring assessments of future criminal behavior at bail determinations, parole decisions, capital case sentencing, sexually violent predator assessments, involuntary civil commitments, and in sex offender registration "illustrates our criminal justice system's subtle shift in focus away from punishment and onto prevention").
192. Additionally, a victim's race may be a factor in the punishment of the defendant. For example, one study concluded that individuals who kill whites are more likely to be executed than those who kill blacks. David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661, 710 (1983) (finding that execution is more likely for those who kill white victims as opposed to black victims).
193. See Doris Marie Provine, Too Many Black Men: The Sentencing Judge's Dilemma, 23 LAW & SOC. INQ. 823, 850-51 (1998) (describing the practice of race-based punishment as a form of community assistance).
194. See William Wilbanks, Is Violent Crime Intraracial?, 31 CRIME & DELINQ. 117, 118-19 (1985) (victimization survey data indicate that violent crime in the United States is intraracial).
195. However, judges are demonstrating racial bias against white defendants by detaining them at higher rates than black defendants. Darnell F. Hawkins, Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment, 65 SOC. FORCES 719, 719 (1987).
196. See David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post- Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638, 1724 (1998);
197. see also Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1392-93 (1988) (examining racial bias in black-victim violent crime and its effect on the black community).
198. This Article focuses largely on the racial gap in pretrial detention, though an equally important issue that impacts the racial gap in incarceration is our sentencing policies, for not only drug, but also violent offenses. As experts have persuasively demonstrated, we currently incarcerate too many people and sentence them for too long (and much longer than we ever have historically). See TODD R. CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION MAKES DISADVANTAGED NEIGHBORHOODS WORSE 3-7 (2007) (claiming that incarcerating more people for longer periods of time is the cause of mass incarceration).
199. But see U.S. SENTENCING COMM'N, REPORT TO CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM xxviii (2011) (stating that black defendants are less likely to qualify for relief from mandatory minimum penalties as a result of "criminal history or the involvement of a dangerous weapon in connection to the offense.");
200. John F. Pfaff, The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices, 13 AM. L. & ECON. REV. 491, 518-19 (2011) (explaining that locking up those who would not have gone to prison in the past is the key cause of prison population growth rather than simply imprisoning people longer or putting people in prison for longer terms).
201. An approach that asks judges to ignore relevant information that helps protect society is difficult to support. See Katherine Y. Barnes, Book Review, Against Judgment, 93 CORNELL L. REV. 689, 698-99 (2008) (suggesting that "[r]andomly punishing individuals certainly violates the core notion of fairness that Harcourt criticizes society for ignoring in its hunger for prediction" and while perhaps not the goal, substantial wasting of resources could inhibit criminal justice from reaching its "true goals, such as minimizing crime").
202. For a search to be reasonable under the Fourth Amendment, an officer must have reasonable suspicion, probable cause, or consent. See U.S. CONST. amend. IV;
203. Illinois v. Gates, 462 U.S. 213, 230-31 (1983);
204. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);
205. Terry v. Ohio, 392 U.S. 1, 8-9, 28-31 (1968);
206. see also Yoav Sapir, Against Prevention? A Response to Harcourt's Against Prediction on Actuarial and Clinical Predictions and the Faults of Incapacitation, 33 LAW & SOC. INQUIRY 253, 255-56 (2008).
207. But see Bernard E. Harcourt, A Reader's Companion to Against Prediction: A Reply to Ariela Gross, Yoram Margalioth, and Yoav Sapir on Economic Modeling, Selective Incapacitation, Governmentality, and Race, 33 LAW & SOC. INQUIRY 265, 267-69 (2008) (arguing that while perfect information would allow profiling to be administered efficiently, comparative elasticities have been largely ignored and thus we should remain against prediction now and in to the foreseeable future);
208. Nicola Persico, Racial Profiling, Fairness, and Effectiveness of Policing, 92 AM. ECON. REV. 1472, 1472-73 (2002);
209. see also David Bjerk, Racial Profiling, Statistical Discrimination, and the Effect of a Colorblind Policy on the Crime Rate, J. PUB. ECON. THEORY, 521, 524 (2007) (demonstrating that when racially unequal investigation rates are due to statistical discrimination, imposing a colorblind policy on officers can have varying results depending on jurisdiction and specific crime involved).
210. "According to Pew's analysis of state data reported to the federal government, offenders released in 2009 served an average of almost three years in custody, nine months or 36 percent longer than offenders released in 1990." THE PEW CENTER ON THE STATES, TIME SERVED: THE HIGHER COST, LOW RETURN OF LONGER PRISON TERMS 2 (June 2012), http://www.pewstates.org/ uploadedFiles/PCS-Assets/2012/Prison-Time-Served.pdf.
211. As pointed out by Meares and Kahan, sometimes isolating minority crime and diverting the potential defendants from prison to alternative sentences or even giving them the choice to give up drugs in order to stay out of jail have been proven alternatives. Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153 (1998) (claiming that curfews, anti-loitering laws, and other forms of policing are milder alternatives to severe prison sentences). Indeed, police finding drugs more often in minority defendants' vehicles does not have to lead to more arrests and more jail time for defendants.