Criminal Injustice System

Prosecutorial Discretion: Benefits, Detrimental Impact, and Solutions

Suffice to say, discussing matters related to race in the U.S. is intense and deserves a dialectic analysis involving self-interrogation whereby a personal and social transformation can occur. These principles are too important to discount when examining the racial disparities in the U.S. criminal justice process.

The United States incarceration rate per capita exceeds many nations at 655 prisoners per 100,000 population—El Salvador (604) is a close second. Current U.S. estimates suggest that over 80 percent of all criminal defendants qualify as “indigent,” meaning that they cannot afford to hire a lawyer.^[1] These numbers are unsettling.

Moreover, the People’s Policy Project concluded in a 2018 analysis that mass incarceration in the United States, in effect, is “a system of [incarcerating] lower-class men.” Further concluding that the U.S. criminal justice system “disproportionately imprisoned Black men—since they are far more likely to be lower class than white men.”

From arrest and initial charges to sentencing decisions by judges, the treatment of African Americans in the criminal justice process is atrocious. Undoubtedly, a subject that often amasses intense debate. However, through discussion, society has an opportunity to move from symbolic representations to more substantiative transformations.

In the U.S., the prosecution—the government’s attorney—controls the initiation and direction of the criminal process, which means that the prosecutor controls whether to file criminal charges, what criminal charges to file, and against whom charges should be brought. A prosecutor’s discretion to choose the initial charges determines the penalties available during plea negotiations.^[2] Here, the initial plea offer substantially impacts whether a defendant will agree to a disposition or set a matter for trial.

As a result, felony crimes may change to misdemeanors, a non-jailable offense, or result in a case dismissal, occurring without requiring an entirely new judicial process. Thus, prosecutorial discretion does have some benefits.

However, there is a downside. Criminal case studies examining federal court outcomes have pinpointed substantial racial disparities in judges’ sentencing decisions. Specifically, Black defendants are incarcerated more frequently and receive longer sentences than white defendants.^[3]

Because prosecutors possess discretionary powers to control the initiation and direction of the criminal process for criminal defendants, communities must remain active in the election of their local and state attorneys and the Presidential election. Further, communities must press their legislature, state attorneys, district attorneys, and judges to collect data about arrests, charging decisions, and plea bargaining. Sentencing data gathering already exists in most, if not all, jurisdictions.

The Fifth and Sixth Amendments provide the right to counsel. However, many low-income Americans still face difficulties in the adjudication process; specifically, Black Americans.

Article II, Section 3 of the Constitution provides that the president “shall take care that the laws be faithfully executed.” Keep in mind that U.S. Attorneys are appointed by the U.S. President and work under the direction of the Attorney General at the Justice Department.

In Inmates of Attica Correctional Facility v. Rockefeller, the Court upheld this discretionary power by citing separation of powers concerns that limit judicial power over the charging decisions of federal prosecutors.

But citizens ought not to fret, U.S. Attorney’s Manual § 9-27.230 advises federal prosecutors to weigh nine relevant considerations when assessing the federal interest in a case. Contrarily, the Court in Inmates of Attica rejected any oversight from a judicial clerk validating a prosecutor’s good faith decision.

Article III, Section 1 of the Constitution of the State of Montana, provides the same discretionary powers. In Guymon v. Corrigan, the Montana Supreme Court held that “county attorneys have broad discretion to determine whether to prosecute an alleged offender and what offense to charge. Decisions of a county attorney to prosecute or not involve the exercise of discretion and judgment.”^[4] Importantly, consider that prosecutorial exclusivity is not usually prone to judicial review.

However, Article II, section 4 of Montana’s Constitution also extends the boundaries of equal protection. The general equal protection guarantee of Article II, Section 4, requires that “persons similarly situated with respect to a legitimate governmental purpose of the law must receive like treatment.” The language “recognizes human dignity as a dimension of, or corollary to, the concept of equal protection of the law.” Gazelka v. St. Peter’s Hospital. The section further widens the protected class to encompass race, color, sex, culture, social origin or condition, and political and religious ideas.

Undoubtedly, broad prosecutorial discretion in charging decisions may very well decide how the law is applied in a community. Without collection and analysis of relevant data, an effective measure is likely nonexistent and unenforceable by the courts. Therefore, some level of accountability is warranted.

Equally important is the public’s request for prosecution. For example, in February 2020, 25-year-old Ahmaud Arbery, a Black jogger, was chased by three white men and shot dead. Gregory McMichael, and his son Travis, along with William Roddie Bryan, were charged with malice murder and several other counts, nearly three months after Arbery’s death.

Gregory McMichael worked as an investigator for Brunswick Judicial Circuit District Attorney Jackie Johnson’s office before retiring. Waycross Judicial Circuit Disctrict Attorney George Barnhill’s son was a current assistant district attorney in Johnson’s office and had previously worked with McMichael. It is clear that conflicts existed, and prosecutorial discretion permitted the extremely long delay, denial, and obstruction of justice for Arbery. The lack of charges for three months is a straightforward representation of irresponsible prosecutorial discretion.

Under Inmates of Attica, neither a grand jury nor a court can force a prosecutor to effectuate an indictment against their wishes. Thus, if not for the community pressure coupled with the leaked video, there would have been a further delay in the prosecutor’s charging decision for Arbery.

Legally, the local district attorney’s office determines the charging and plea-bargaining decisions. Here, prosecutorial discretion is quite broad, and charges must possess probable cause. Although judges do review plea bargains, in practice, judges rarely reject them.^[5] In many respects, judges want parties to negotiate dispositions with little interference from the bench.

“Prosecutors exercising their discretion may, like judges when imposing a sentence, be subject to implicit biases that adversely impact certain types of defendants.”^{^[6]} For example, “prosecutors may consciously, or subconsciously, perceive race as an aspect of criminality. “Add constraints on information, time, and budgets” and prosecutors may only rely on their inclinations in their decision making.^[7]

The good news is that an empirical remedy exists to hold prosecutors and elected District Attorneys accountable. States like Michigan, and Massachusetts have already commenced establishing the recording systems, and analysis necessary to formulate where their respective jurisdiction falls on the spectrum of abuse.

In Washtenaw County, Michigan, “a report from the group Citizens for Racial Equality in Washtenaw found that Black people in the county are significantly more likely to be charged with felonies than white people for the same crimes.”

In 2016, Massachusetts Supreme Judicial Court Chief Justice Ralph Gants asked Harvard researchers to “take a hard look at how we can better fulfill our promise to provide equal justice for every litigant.” After gathering the raw numbers, “Harvard Law School’s Criminal Justice Policy Program’s study found that Black incarcerees received more severe charges, harsher sentences, and less favorable outcomes than their white counterparts.” Gathering the requisite empirical data like Massachusetts and Michigan helps to mitigate the disparate outcomes of charging decisions and plea bargains.

In essence, diving into the issues hindering the U.S. from moving forward should not be seen as a personal attack or anti-American. Instead, this is an opportunity for the nation to come together, fix its problems, and move forward—wishful thinking, likely. Misery still loves company, and influence through division is still an attractive strategy for those who employ it.

– D. Horton

Footnotes

^[1] See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases: A National Crisis, 57 Hastings L.J. 1031, 1034 (2006).

^[2] Shermer & Johnson, supra note 48, at 395; Ronald F. Wright & Rodney L. Engen, Charge Movement and Theories of Prosecutors, 91 MARQ. L. REV. 9, 9-10 (2007).

^[3] See, e.g., David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts, 44 J.L. & ECON. 285, 306 (2001) (finding that Black and Hispanic defendants receive substantially longer sentences than white defendants and are also more likely to be incarcerated).

^[4] 2016 MT 3N, ¶ 10, 383 Mont. 542, 369 P.3d 353.

^[5] See Michael M. O’Hear, Sentencing Policies and Practices in Wisconsin, OXFORD HANDBOOKS ONLINE 7 (Mar. 2016).

^[6] Lauren O’Neill Shermer & Brian D. Johnson, Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts, 27 JUST. Q. 394, 398 (2010).

^[7] Id.

Prisoners of War: The Mass Incarceration of BIPOC Communities Through the War on Drugs

In 1970 the total number of incarcerated people in the United States hovered around 200,000. On Oct. 27, 1994 the prison population surpassed one million for the first time. The vast majority of those incarcerated were held on drug offenses. Now, in 2020, the criminal system holds about 2.3 million people prisoner. The number of people serving life sentences alone exceeds the total number of the prison population in 1970. The origins of this mass incarceration explosion is not a mystery. It stems directly from the “War on Drugs.” This crusade led by President Nixon in the early 70s stays alive today thanks to bipartisan maintenance and support. As of 2020, half of those in federal prison serve sentences for drug related offenses.

The War on Drugs began nearly half a century ago in June of 1971 with a declaration from President Nixon. Nixon halfheartedly hid his intentions behind the excuse of “rampant” drug abuse across the nation, but the iniquitous purpose of his actions continues to present as the disparate mass incarceration of Black, Indigenous, and People of Color (BIPOC) communities.

Years later, John Ehrlichman, Nixon’s advisor and Watergate co-conspirator, openly admitted to the original efforts of the political campaign in an interview with Dan Baum:

The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and [B]lack people…We knew we couldn’t make it illegal to be either against the war or [B]lack, but by getting the public to associate the hippies with marijuana and [Black people] with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. (emphasis added).

Though Ehrlichman’s interview vindicated those who already assumed Nixon’s insidious objectives, it did nothing to reverse the dramatic persecution of BIPOC communities–most conspicuously–Black and Latinx persons.

The Reagan administration took up the mantle of Nixon’s push against the Black community by passing the Anti-Drug Abuse Act of 1986. For the first time, this act mandated minimum sentencing in response to specific quantities of cocaine. Apart from the legislative encroachment on the judiciary’s constitutional role in determining appropriate sentencing, Congress further abused their power by establishing different minimum sentences for “crack” and “powder” cocaine.

A little background on these two methods of cocaine use is important to appreciate the disparity in minimum sentencing. There is no difference in chemical makeup between crack and powder cocaine. The distinction between the two forms comes from the method of intake. Powder cocaine is a fine, crystalline powder, it is used by snorting the powder or dissolving it and directly injecting the solution into a vein. Crack cocaine is made by dissolving powdered cocaine into water and ammonia then boiling the mixture into a solid. The solid is then broken into chunks that are smoked. Taking cocaine as a powder gives the user a longer lasting high, but crack cocaine is significantly cheaper to produce in large quantities. The significant difference in price makes crack cocaine more available than powder for persons of lower socioeconomic status.

Until 2010, the ratio in sentencing for the different forms of cocaine was 100:1. One hundred times the amount of powder cocaine was necessary to trigger the same five, ten, or 20 year sentences mandated for the use of crack cocaine. That translated to five grams of the less expensive crack cocaine and 500 grams of the more expensive powder cocaine both resulting in five year sentences. In 2007, the Supreme Court pushed back on sentencing mandates in Kimbrough v. United States. It held that district courts could reasonably maintain sentencing guidelines without strictly adhering to the minimum sentences. This decision opened the door for judges to deviate from the sentencing mandates. Three years later, the Fair Sentencing Act reduced the sentencing disparity from 100:1 to 18:1. While this is a marked improvement, any disparity in sentencing reflects an outdated view of the differences between powder and crack cocaine. The existing disparity continues to unjustly prosecute those of lower socioeconomic status.

The significant wealth gap between white and Black families is to blame for the heavier sentencing on crack compared to powder cocaine. The Nixon campaign appealed to affluent white voters by outlawing lower socioeconomic status. Though this strategy incorrectly assumed the demographics of drug use–consistently white crack cocaine users outnumber Black users–the justice system reflected Nixon’s intent. Nine times as many Black people compared to white people went to prison on crack cocaine offenses between the years 1991 and 2001. As of 2016, Black people were still being arrested at over twice the rate of white crack cocaine users despite higher white use.

Cocaine, of course, is not the only drug that demonstrates a disparity in its punishment across demographics. Though only a little under a third of adults in the United States oppose the legalization of marijuana, over eight percent of federal drug convictions and about 43% of all arrests across the nation relate to marijuana. Despite comparable usage rates, a Black person is almost four times more likely to be arrested than a white person on marijuana related charges. Ferrel Scott, a Black man, faces life in prison for selling marijuana. Kevin Murphy, a white man, made millions of dollars taking marijuana from “seed to sale.” Specific to Montana, Black people are 9.6 times more likely to be arrested for marijuana possession than white people.

Of total illicit drug users in the United States, only five percent identify as Black. Those five percent represent 29% of all drug related arrests and nearly 40% of total federal and state incarcerations for drug law violations. Latinx offenders comprise about 38% of federal incarcerations for drug related violations. In Montana Indigenous people make up 20% the men’s prison population and 34% of the women’s prison population despite only representing between six and seven percent of the state’s total population. A significant number are held on drug related offenses.

The recent response to the opioid crisis contrasts starkly with the mass incarceration of BIPOC communities. The government recognized epidemic of opioid overdose primarily affects white communities. The response to opioid use has not been vilified to the extent of the war against crack cocaine. Following the analysis on the disparities in sentencing for cocaine, the logical conclusion is that addiction to opioids is appropriately considered and treated as an illness–not a prison sentence–because it is primarily a white issue. White communities have higher access to opioids because white patients are prescribed opioids at a rate two times higher than comparable Black patients. Further limiting the exposure to opioids are the socioeconomic barriers to healthcare.

The “War on Drugs” is a misnomer. There was never any real interest in eradicating drug use for the benefit of the people. Examining the history of this lengthy conflict reveals a clear purpose–the continued persecution of Black people in the United States. This fight has no winner. The United States imprisons its own people to the extent that despite boasting only five percent of the global population it represents an entire quarter of total incarceration worldwide. Mass incarceration costs our country $182 billion every year. This is a defining civil rights issue and an opportunity for necessary reform in our justice system.

– L. Moose

Also Consider:

Cassidy, Michael B. (2009) “Examining Crack Cocaine Sentencing in a Post-Kimbrough World,” Akron Law Review: Vol. 42 : Iss. 1 , Article 3.

Further delves into sentencing reform.

Kimbrough v. United States, 552 U.S. 85 (2007).

Held federal judges can deviate from minimum sentencing. Consider if this actually helped BIPOC communities. Or did it open the door to more racially motivated disparities in sentencing?

Kamaria A. Guilty, Recreational Marijuana Legalization in New Jersey: The Formula for a Bill That Accounts for Racial Injustice, 21 Rutgers Race & L. Rev. 23 (2020).

Available on Westlaw

Considers the legalization of recreational marijuana and the impact on minorities.

Mitchell F. Crusto, Weeding Out Injustice: Amnesty for Pot Offenders, 47 Hastings Const. L.Q. 367 (2020).

Available on Westlaw

Considers exonerating past offenders with new marijuana legalization.

Smita Ghosh, Congressional Administration During the Crack Wars: A Study of the Sentencing Commission, 23 U. Pa. J.L. & Soc. Change 119 (2020).

Available on Westlaw

Compares the Sentencing Commission’s recommendations compared to the laws passed by Congress.

“Victims are not victims, not some fragile, sorrowful aftermath. Victims are survivors, and survivors are going to be doing a hell of a lot more than surviving.”[1]

One out of every six American women will be the victim of an attempted or completed rape in her lifetime.^[2] A 2015 study cites that 11.2% of all students experience rape or sexual assault through physical force, violence, or incapacitation (among all graduate and undergraduate students).^[3]

In 2015 Chanel Miller, initially known as “Emily Doe,” was attacked while unconscious after drinking during a frat party at Stanford.^[4] As Miller was being attacked, two fellow students, Carl-Fredrik Arndt and Peter Jonsson, rode by on bikes, saw and stopped the attack. They then held her attacker, Brock Turner, until the police arrived.^[5]

One year later Brock Turner was convicted of three felonies: assault with the intent to commit rape, sexual penetration with a foreign object of an intoxicated person, and sexual penetration with a foreign object of an unconscious person. According to a local defense attorney, Jerome Mullins, Turner faced between two, and six years in prison for count one; and between three and eight years in prison for each of the other two counts.^[6] Despite speculation from Mullins and other criminal attorneys Turner was sentenced to just six months.

And he only served three.^[7]

This incident captured world-wide attention. His photo now appears in the latest edition of Introduction to Criminal Justice: Systems, Diversity, and Change, as the literal textbook definition of rape.^[8]

The media and public outcry overlooked a glaring issue: disparate sentencing among African American men. Disparate sentencing among African American defendants. However, the race of the defendant is not the sole influence leading to disparate sentencing; rather, the race of the victim also impacts sentencing. “Studies show that judges generally impose harsher sentences for rape when the victim is white than when the victim is Black”.^[9] African American victims are victimized twice: first by their attacker, and then by the judicial system. Further, “. . . in sexual assault cases race of the defendant appears to interact with the race of the victim, producing the most severe punishments for African-American defendants who assault whites.”^[10] The system is failing both African American victims, and African American defendants.

Research demonstrates that in cases where African American men are accused of attacking white women victims laws and procedural mechanisms are applied differently than in cases where white men are accused of interracial sexual assault.

Between 1930 and 1972, a total of 455 people were executed for rape convictions. Eighty-nine percent of those executed were African American. A little over 97% of these executions took place in former Confederate states. Just a few days ago, Ronnie Long was freed from prison after 44 years for his wrongful conviction of raping a white woman. Compare 44 years to three months.

Where Did This Disparity Start and Why Does it Persist?

1865. The 13th Amendment to the U.S. Constitution formally abolished slavery in the traditional sense. However, Section 1 details an exception. Involuntary servitude may be enforced “…as punishment for crime whereof the party shall have been duly convicted…” This phrase allowed the exploitation of the African American community to continue. Thus, African American people went from slaves to criminals. The criminal justice system was treated as a means to continue the racial hierarchy after the official condemnation of slavery. “Black Codes” and “Pig Laws” were solely applied to the African American community, these laws enacted harsher punishments than those applied to white people. Those imprisoned for violation of these laws were then “leased” out to prominent, wealthy families. Typically to work on plantations. Officially, convict leasing ended by World War II, but the systematic practice of over sentencing African American people compared to white people persists today.

Surprisingly law review articles and psychology studies are not the only discipline asking these questions. A 2014 economic paper asked the same question, “. . . . . answer the crucial question of why [African Americans] more frequently face mandatory minimum sentences: differences in underlying crime patterns and criminal histories, or disparate exercise of prosecutorial charging discretion?”^[12] An in-depth study found that ceteris paribus African American men were found to face a roughly 9% premium, or increase, on their sentence. The study looked at a variety of factors, including, initial charging decisions, criminal history, multiple defendants, and mandatory minimum sentencing guidelines.

Why did an economics journal care? Money, of course. And what was the economic take away? “Eliminating the ‘black premium’ that was identifed would reduce the steady-state level of black men in federal prison by 8,000–11,000 men and save $230–$320 million per year in direct costs.”^[13]

Ultimately the study revealed: one out of every nine black men between the ages of 18 and 35 is currently incarcerated (Pew Center on the States 2008). If one assumes that all black male sentences in federal and state court face an average race premium of 9 percent, eliminating this disparity would ultimately move nearly 1 percent of all the black men under 35 in the United States from prisons and jails back to the community.^[14]

– E. J. Bolan & L. Moose & S.T. Bonilla

Sources:

^[1] Chanel Miller, https://www.glamour.com/story/women-of-the-year-emily-doe
^[2]https://www.rainn.org/statistics/victims-sexual-violence
^[3] https://www.rainn.org/statistics/campus-sexual-violence; David Cantor, Bonnie Fisher, Susan Chibnall, Reanna Townsend, et. al. Association of American Universities (AAU), Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (September 21, 2015). (“Victim services agency” is defined in this study as a “public or privately funded organization that provides victims with support and services to aid their recovery, offer protection, guide them through the criminal justice process, and assist with obtaining restitution.” RAINN presents this data for educational purposes only, and strongly recommends using the citations to review any and all sources for more information and detail.)
^[4] https://www.npr.org/2019/09/04/757626939/victim-of-brock-turner-sexual-assault-reveals-her-identity
^[5] https://www.insider.com/chanel-miller-met-swedish-students-who-stopped-brock-turner-assault-2019-9
^[6] https://www.paloaltoonline.com/news/2016/03/30/stanford-swimmer-found-guilty-of-sexual-assault
^[7] https://time.com/4477395/stanford-swimmer-brock-turner-released-jail-today/
^[8] https://www.vox.com/first-person/2017/11/17/16666290/brock-turner-rape
^[9] Jennifer Wriggins, Rape, Racism, and the Law, 6 Harv. Women’s L.J. 103 (1983). https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1042&context=faculty-publications
^[10] Ojmarrh Mitchell and Doris L. MacKenzie, The Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research https://www.ncjrs.gov/pdffiles1/nij/grants/208129.pdf
^[12] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6
^[13] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6
^[14] M. Marit Rehavi and Sonja B. Starr, Racial Disparity in Federal Criminal Sentences, Journal of Political Economy, 2014, vol. 122, no. 6

Welcome University of Montana School of Law Community

Welcome to the start of another year at the University of Montana Alexander Blewett III School of Law. To all returning community members, it’s good to be back here with you. To those who are new, a warm greeting, we look forward to meeting you in whatever capacity possible (adhering of course to social distancing limitations). It is our genuine hope that you all feel supported and encouraged by this community in every facet of your legal education.

In light of our nation’s long overdue reckoning with racial and socioeconomic injustices we have partnered with Professor Andrew King-Ries to raise awareness about the perpetual inequity of our country’s laws, specifically–the Criminal Justice System.

On May 25, 2020, Derek Chauvin, a white police officer, killed George Floyd, an unarmed Black man. After nearly nine minutes of Chauvin’s knee pressed into his neck, George Floyd cried out for the last time, “Man, I can’t breathe.” George Floyd’s final words gained momentum and ignited a fiery response to the long history of police brutality and abuse of power directed against BIPOC communities in our country.

While George Floyd’s death sparked both domestic and international protests, his tragic story is not unique. Despite making up just over 13% of the entire US population, Black people represent 28% of all police killings in the US since the year 2013. There’s a blatant lack of legal accountability associated with this genocide. Law enforcement agencies do not fully report statistics on use-of-force violations. The police officers that killed Breonna Taylor, a young Black woman, as she slept in her home in March of this year still walk free. These police officers entered her home using a “no-knock warrant.” A warrant they applied incorrectly to her house while their intended suspect already sat in custody. Despite their obvious mistake and escalation, these police officers are protected by law.

Not only are BIPOC communities disproportionately damaged by police killings, they face mass incarceration at rates to which white people simply cannot relate. The United States currently leads global incarceration with nearly a fourth of the world’s total prison population. Of that staggering number, roughly 58% of inmates are white, 38% Black, and 2.3% are Native American. Now consider these statistics compared to the entire population of the United States. White people make up about two thirds of the US population, Black people around 13%, and Native Americans only 1.3%. One of every three Black men and one of every six Latino men will go to prison within his lifetime. Native men face incarceration at four times the rate of white men. Compare this to the one of seventeen white men who face the possibility of incarceration. A mere five percent of illicit drug users identify as Black, yet 29% of those arrested for drug charges are Black, and of all people incarcerated for drug charges, 33% are Black.

Specific to Montana, Native American people are abhorrently overrepresented in the prison system. Native Americans make up six percent of Montana’s state population, yet represent 22% of total incarcerations in Montana. Out of a rough total of 7,400 people confined to a facility in some capacity in Montana, a little over 1,900 identify as Native American.

It’s easy to stop the analysis at the obviously horrific outcomes of policing in the United States–death and incarceration. However, the seeds of racial injustice are sown in even the smallest infractions of the law, and perpetuate the legally endorsed abuse of BIPOC communities. Black and Latinx drivers are more likely to be pulled over and ticketed than white drivers. Black people are stopped without just cause at a rate five times higher than white people. This habit of racial profiling is not new. The practice shares its origins with the founding of police forces in the United States. The modern day police arose from the South’s Slave Patrol. Despite these very early beginnings, Congress waited to address racial profiling until the Traffic Stops Statistic Act of 1997. However, the bill never made it through the Senate. In response to this initial failure came the End Racial Profiling Act, yet racial profiling has only intensified in the last few decades.

The above serves only as a brief introduction and background to the racially driven disparities BIPOC community members face when subjected to the Criminal Justice System. By no means does it constitute an exhaustive list, nor a thorough analysis. We have yet to even touch on the added barrier of access to counsel BIPOC communities face, or the role socioeconomic status plays in keeping people in prison. We hope you’ll join us this semester and beyond as we collaborate with students, professors, and working attorneys to provide you thoughtful, in-depth analysis regarding specific issues and examples of systemic racism and class distinction in our Criminal Justice System. To the 2Ls and 3Ls, we hope you find this a valuable resource in integrating these prominent societal problems with your curriculum. To the 1Ls, though your response to this endeavour is less voluntary, we hope you recognize your active participation in this discussion is not a chore, but a privilege. We can all do better.

Before diving deeper into these issues together this semester, we believe it is important to recognize that while the disparities of our Criminal Justice System may be the most overt representations of racism in the law, every area of our chosen profession demonstrates a bias against BIPOC communities and those with lower socioeconomic status.

Please visit our timelines tab to put in perspective the length of this struggle. We have also provided a list of our book and movie suggestions to supplement your understanding. If you have any suggestions to add, or topics you wish to see covered in detail, please do not hesitate to reach out to your friendly neighborhood Criminal Law TA Lauren Moose at lauren.moose@umontana.edu (she is very good about checking her email).

For now we will leave you to consider this quote from civil rights activist Dorothy Heights:

“I want to be remembered as someone who used herself and anything she could touch to work for justice and freedom…I want to be remembered as one who tried.”

We appreciate that you try. See you next week!

-L. Moose