Student Commentary by P.S. Kane
In 1909, the United States Supreme Court acknowledged that “[b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.” More than eighty years later, the inquiry has not grown any simpler. No quick litmus test has yet developed to ferret out the disparate treatment of minorities in the criminal justice system. Rather, as in 1909, it is not what a man has done but who he is that determines criminal accountability today.
Thus far, most studies of racial and ethnic bias in the criminal justice system have focused on the role of the jury or the judge rather than on that of the prosecutor and prosecutorial discretion. Yet this discretion allows conscious and unconscious biases to influence a prosecutor's decision whether to prosecute a particular individual. This Note addresses the scope of prosecutorial discretion and the entryways it paves for racial and ethnic prejudice. It documents the empirical studies supporting the hypothesis that racial and ethnic biases have in fact entered the criminal justice system through the prosecutorial decision-making process. Finally, this Note assesses the effectiveness of the legal remedies designed to block such discriminatory prosecution, and concludes by offering legal and administrative reforms constructed to narrow the pathway of racially motivated, selective prosecution.
About the Author
P.S. Kane.
Citation
67 Tul. L. Rev. 2293 (1993)