America's Prosecutor Problem
Prosecutors are more powerful than judges -- but the tough-on-crime stance they take to get elected multiplies racial injustices.
Gordon Weekes describes a criminal case that landed on his desk this month in Fort Lauderdale, Florida: “An old lady comes out of her house and sees three or four kids in in her yard.” She calls the police. The kids scatter, but get caught. They’d climbed a fence to snag mangos from a tree. One of the boys is charged with burglary.
“I suppose because he jumped the fence with an intent to take mangos, that it was a burglary,” muses Weekes, the chief assistant public defender in Broward County. “But the kid is 13 years old -- and he didn’t even take a mango! The state attorney’s office is supposed to decide how to charge these cases. You would think they would go with the more appropriate charge, which is trespass. No -- they’re going with the more serious charge.”
Trespass is a misdemeanor (a crime punishable by less than a year in prison). Burglary is a felony (punishable by a year or more). Because of his age, the child is unlikely to be incarcerated, but unlike the trespass, a felony record cannot be sealed or expunged. “That charge could have a far-reaching impact on the opportunities available to the child in the future,” says Weekes.
“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney,” he says. They decide what charges to file -- “or more importantly, what charges not to file.”
“Prosecutors have more power in this system than any judge, any supreme court, any police officer, or any attorney.”
Even as race and justice issues dominate national headlines, few media outlets have focused on the formidable power prosecutors wield. But they should. Of the 2,437 elected prosecutors in America (at both the both federal and county levels), 79 percent were white men --- even though white men made up only 31 percent of the population, according to a 2014 report by the San Francisco-based nonprofit Women Donors Network. That disparity, the report said, is a “structural flaw in the justice system” that has cascading effects -- like reducing accountability for police officers who shoot unarmed minorities.
As part of “Rigged,” our investigation into the dark side of modern-day electioneering, Fusion worked with Color of Change, another organization working on social justice issues, to collect and analyze data for every jurisdiction in America.
93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is.
The results are stark: 93 percent of all prosecutors in the United States are white, though only 61 percent of the U.S. population is. At the same time, there were 1,561,500 prisoners in state and federal prisons, according to the latest (2014) data from the Bureau of Justice Statistics, which noted that black men “were in state or federal facilities 3.8 to 10.5 times more often than white men.” Fusion’s data supports what social justice activists have long maintained: At the local level, America’s justice system is disproportionately white-controlled, and disproportionately oriented toward punishing minorities. There are no straightforward answers for how and why the disparity persists, but the data shows the disparity is real.
District Attorneys by race
District Attorneys by gender
Data Source: Color of Change, Elected Prosecutor Database with additional research by Fusion on appointed officials. Estimates of the population of U.S. counties by race , U.S. Census Bureau. Data current as of September 12, 2016. See additional notes at the end of the story.
It’s the prosecutors, stupid
In many places in America, people of color represent a small share of the population, so it’s natural to assume that the overwhelming whiteness of US district attorneys is due to the whiteness of large swaths of the country. However, when Fusion analyzed the data, we found the imbalance persists even in communities of color:
- In counties in the U.S. where people of color represent between 50% and 60% of the population, only 19% of prosecutors are prosecutors of color.
- In counties where people of color represent between 80% and 90% percent of the population, only 53% of the prosecutors are prosecutors of color.
- Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
- Overall, in the 276 counties in the U.S. where people of color represent the majority of the population, only 42%, or less than half, of the prosecutors in these counties are prosecutors of color.
Only in places where 90% of the population are people of color does the prosecutor pool reflect the diversity of the community.
Existing data shows black prisoners are punished more harshly than white inmates across America. In 2008 and 2009, the average length of a federal prison sentence for black males was 90 months, compared with 55 months for a white male. Many variables are at play, but according to a 2014 study in the Journal of Political Economy, “an unexplained black-white sentence disparity of approximately 9 percent remains,” even after accounting for factors such as prior convictions. (The figure jumps to 13 percent when drug crimes are included). “Estimates of the conditional effect of being black on sentences are robust,” the study concluded.
Rashad Robinson, executive director of Color of Change, said that any prosecutor can be good or bad. The problem, he said, is that to get elected, they usually position themselves as “tough on crime” and make strong alliances with police. “They’re going into the job trying to get high conviction rates,” Robinson said. “They try to rack up as many convictions as possible, even though we a have mass incarceration problem.” What we really need, he says, is progressive prosecutors of any race who realize that “the prison-industrial complex has not made us safer.”
Indeed, Color of Change is tracking prosecutor elections and gathering data such as the number of times a prosecutor is elected, what party they represent, their race, gender, and whether they were appointed or ran unopposed. Of the 2,326 prosecutors elected to office as of 2016 and tracked by Color of Change, 72 percent -- 1,691 in all -- ran unopposed in their last election.
An analysis showed:
- 97% of all prosecutors in the U.S. are elected.
- 72% of all elected prosecutors in office in 2016 ran unopposed in their last election
- 73% of white prosecutors in office in 2016 ran unopposed compared to 64% of prosecutors of color
- 32% of prosecutors who are appointed are people of color compared to just 4% of prosecutors who are elected.
Data Source: Color of Change, Elected Prosecutor Database with additional research by Fusion on appointed officials. Data current as of February 2016. See additional notes below.
72% of all elected prosecutors in office in 2016 ran unopposed in their last election.
Many factors could contribute to the gap in the number of prosecutors of color who run for office. In the data that Color of Change collected, only 94 prosecutors of color were elected to office as of 2016. Of these, 60 ran unopposed in their last election, or 64 percent. Of the 2223 white prosecutors currently elected to office, 1627 or 73 percent ran unopposed. Although the percent of white incumbents who ran unopposed is slightly higher, there is not enough data to draw a conclusion primarily because there are so few prosecutors of color in office. Interestingly, three states (New Jersey, Connecticut and Alaska) appoint prosecutors. In these states, 32 percent of the prosecutors are people of color compared to just 4 percent of prosecutors who are elected. Color of Change hopes to track election outcomes over time in order to better understand what might be driving these differences.
After police arrest a person, the prosecutor and his/her staff of assistant attorneys make a host of decisions that can transform the life of the accused:
They can recommend whether the defendant should be released on bail, and can recommend a bail amount.
- They can adjust the charges, making them more or less severe, felonies or misdemeanors.
- They can decide whether a child is charged as a juvenile or an adult.
- They can add or subtract counts.
- They can also convene grand juries to determine which charges to pursue.
- The prosecutor can also decide not to press charges at all.
“At any time, until a jury is sworn or a plea taken by the court, the state attorney can chose to drop the case,” said Gordon Weekes. “That is always their power, for many reasons: not enough evidence, it’s not in the interest of the public to go forward, there’s an alternative that better suited.”
Because laws outline recommended prison sentences, or even dictate mandatory minimum sentences for particular crimes, a prosecutor can have far more latitude over a defendant’s ultimate prison sentence than a judge, based solely on what charges are brought. For example, at the federal level, someone accused of a misdemeanor charge of possession of marijuana could be fined $1,000 and spend a year in jail. With felony charge of selling marijuana, the fine could be $250,000 and the sentence, five years in prison.
Weekes notes that the stronger the threat of punishment, the more inclined a defendant might be to just plead guilty and end the case rather than incur lawyer fees and take up time as the case goes to trial.
How “tough on crime” becomes “tough on minorities”
In Broward County, Florida, the site of the mango crime, the state attorney is Michael Satz, who was elected to his role in 1976 and has won every election since. He is now 73 years old. On his website, Satz makes no secret of his mission. He brags that in 1992, he “achieved the highest total conviction rate for trials and guilty pleas in the state, a high standard his office works hard to maintain.”
Satz made his reputation for being tough on crime during the drug wars of the 1980s and 90s -- and, critics, say, that reputation was built the backs of minorities. “He’s sent thousands of people to prison on very, very minor drug offenses,” Weekes said. “There’s probably more drug crime occurring on college campuses, but no one is going to any college and kicking down the dorm room door to find a bong under the bed.
“He’s a very nice guy, but he’s lost in a different age and different time,” Weekes said of Satz. “Because he doesn’t have any true connection to people who are impoverished, who have had to struggle, he can’t relate to a lot of the people entering the criminal justice system. There is a lack of empathy that comes from that office -- and countless examples in the ways they choose to prosecute cases.”
Satz also has a reputation for working hand in glove with police. Until this year, when cell phone camera evidence raised questions about the police-involved shooting of a black man, Satz had never prosecuted a police officer for fatally shooting a civilian. “He has sent a message to law enforcement,” says Weekes, “and encouraged them to be emboldened in their misbehavior.” A South Florida alliance of Black Lives Matter activists protested Satz outside the Broward County courthouse in mid-September.
In some of Broward’s easternmost black neighborhoods, where Fort Lauderdale police regularly park their armored vehicles with cameras on prominent street corners and signage that says “YOU ARE BEING WATCHED,” cops in recent years frequently cited residents for riding bikes not registered with the city (“biking while black”) and for not walking on sidewalks (“walking while black”). All told, 86 percent of the department’s bicycling tickets were given to black riders. Weekes says this was clearly racial profiling -- a pretext to search for drugs. “Truly predatory,” he called it. “Mike Satz, as the top law enforcement officer, should identify and root out any practices that are racially disparate.” He says that it would be within Satz’s power to call the police chief and advise the department to stop making arrests on charges that “sound stupid.”
Satz declined to comment for this article, but defended his decisions to the New Times Broward -Palm Beach, pointing out that police-involved shootings are referred to grand juries, and that his office has charged 79 officers with felonies since 2009.
In August, he edged out his sole opponent in the Democratic primary by only a few thousand votes. Turnout in Broward for the primary was abysmally low, hovering around 17 percent of registered voters. No one is opposing Satz in the November general election. He will hold office at least until he is 78.
A long path to parity
There is a challenging but open road to getting more prosecutors of color into office. First, more minorities need to become attorneys. According to the National Association for Law Placement, more than 25 percent of law school graduates are minorities. But oftentimes, graduates saddled with law school loans choose private practice, where the average starting pay can be two to four times the $51,100 salary for an entry-level prosecutor and the $50,400 for starting public defenders. Public service is not an obvious path to personal comfort for aspiring attorneys.
This chart below shows the number of lawyers and judicial workers entering the labor market according to Census data. Currently, 15.6% of all lawyers and judicial workers are people of color. Among younger workers, those age 30 who might be potential candidates for prosecutor roles in the future, 21.9% are people of color (This compares to 43.3% in the population as a whole for that age group.) As the this more diverse pool of workers ages, the gap may lessen but the prosecutor pool still will not reflect the population as a whole.
Number of Judicial Workers by Age
Data Source: Census Bureau ACS PUMS 2010-2014. Population estimates by age, race and Hispanic origin for lawyers, judges, magistrates and other judicial workers (SOC code 2310XX)
Melba Pearson, a past president of the National Black Prosecutors Association (NBPA), is a woman of color and an assistant state attorney in Miami. She didn’t fully realize how powerful the role of prosecutor was until she became one -- somewhat by chance.
Growing up, Pearson was pressed by her father to study the civil rights movement. He noted that heroes like Martin Luther King, Jr. were able to accomplish their work partly because “they had amazing defense attorneys to get them out of jail,” she said. “That’s something really ingrained in me since I was young.”
She always knew she wanted to be in the courtroom. “I didn’t want to do transactional work. I wanted to argue,” she chuckled. She applied to entry level jobs in both prosecutors’ and public defenders’ offices and, as it turned out, “got an offer that was amazing and changed my life.” She’s been with the Miami-Dade state attorney’s office for a decade and a half.
“The prosecutor in our criminal justice system is the one person who holds all the cards,” she said. “While the judge can adjudicate a part of the outcome, everyone in the courtroom is bound by decision of the prosecutor choosing to file.”
Now, she says, “I understand more than I did the importance of being a female prosecutor of color. I’ve embraced the role moreso. It’s not just about doing justice and seeking justice for victims,” she says, but also bringing awareness of her role to a “section of the population that has been historically underserved.”
Pearson laughed off criticisms that minority prosecutors exercising judicial empathy translates to leniency for criminals: “I specialize in robberies and homicides, so I can’t turn a blind eye. You put a gun in someone’s face -- I can’t, because of the history of slavery and Jim Crow, ignore that. No, no -- it doesn’t work that way!” Rather, she said, the reasoning is: “Can I make you a little better? You will be punished -- but what can I do to deter you?”
Pearson has no plans to run for state attorney, but the NBPA encourages members to seek higher office. Minority prosecutors have noticeable made gains in recent years -- notably, Eric Holder and Loretta Lynch serving as attorneys general of the United States, Marilyn Mosby and Kym Worthy becoming top municipal prosecutors in Baltimore and in Detroit.
Color of Change’s Robinson believes more minority representation in district attorneys’ offices is coming, citing Kim Foxx’s win in Chicago and noting that even the Koch Brothers and Newt Gingrich have called for justice reform. “There are very high-level movements on both the left and right. In many ways, DAs haven’t caught up and haven’t had to catch up, because they haven’t had to run in competitive elections.”
His group is working to educate voters about the importance of electing good prosecutors. “We make communities safe and whole, not with school-to-prison pipelines, not charging felonies for schoolyard fights, not by putting people behind bars for decades of low-level crimes.”
Meanwhile, Gordon Weekes continues to see the effects of the system play out. “I walk in and see a courtroom filled with little black kids every day,” he said.
“I know the impact it has on our community when law enforcement focuses on one segment instead of another. I’m not sure the state attorney recognizes those issues,” Weekes said. “If I had a courtroom full of little red-headed girls, I would ask, ‘Why have you arrested all these little redheaded girls?’ I would address that. They’re blind to what is standing right in front of them.”
Additional data notes
Color of Change tracks only elected officials. The demographic and racial data relating to the number of prosecutors of color appointed to the position in jurisdictions that appoint prosecutors was collected by Fusion researchers. These jurisdictions include: Alaska, Connecticut, New Jersey, Puerto Rico, District of Columbia and the counties of Kalawao and Maui in Hawaii.
Color of Change data on the number of prosecutors who ran unopposed in their last general election is derived from an earlier release of Color of Change’s data which included this information. The current Color of Change database does not. This data is current as of February 2016 only and may vary somewhat from more current data in their database.
The U.S. Census bureau considers Hispanic origin to be an ethnicity and not a race. In order to better compare data in the Color of Change database with current population estimates, population estimates from the U.S. Census Bureau were adjusted to isolate those of Hispanic origin. Comparing Hispanic origin to race in this way does not imply that it is the preferred method of presenting or analyzing data.
The U.S. Census does not provide population estimates by race for Puerto Rico at the county-level; we used the island’s overall rate instead.