Race and Adjudication

Paul Butler

Albert Brick Professor in Law, Georgetown University
Reforming Criminal Justice Vol. 2

Racial discrimination in criminal adjudication is unlawful, destructive, and ubiquitous. At virtually every step of adjudication—charging, setting bail, plea-bargaining, jury selection, trial, and sentencing—law enforcement officials
exercise discretion in ways that disproportionately harm people of color. Studies have shown that African American and Latino defendants are, for example, significantly more likely than white defendants to be arrested on charges that are not prosecutable, to be detained pretrial, and to be wrongly convicted. The Supreme Court has made it very difficult to challenge racial discrimination in the criminal process, effectively silencing a defendant’s claim to equal protection of the law unless she can produce “smoking gun” evidence of racist intent. Given inadequate legal recourse, efforts to reduce racial discrimination in criminal adjudication should focus on limiting contact between people of color and law enforcement officials and constraining those officials’ discretion. Specifically, policymakers should work to end money bail, decriminalize misdemeanors, require racial-impact analyses for new criminal justice policies, and collect data on prosecutors’ offices. Legislation implementing these recommendations would go a long way toward improving policy in an area where courts and law enforcement officials have been largely ineffectual