Minnesota Lawyer
Tanya Gladney
It’s one thing to have a panel discussion about eliminating bias in the criminal justice system; it’s another to have it populated by current and former prosecutors.
The panel, “Overcoming Systemic Bias: Lessons From County Prosecutors Identifying and Implementing Solutions to Eliminate Bias in the Criminal Justice System,” was held last week at the University of St. Thomas School of Law. It was moderated by Dr. Tanya Gladney, an associate professor at St. Thomas, and presented by the Minnesota State Bar Association.
All the panelists agreed that awareness of bias in the system, on the part of society and of themselves, has changed.
“The conversation is better now,” said Ramsey County Attorney John J. Choi. “Because of the tragedies we’ve seen related to law enforcement, activism has come to the forefront.”
Dan Satterberg, former prosecuting attorney for King County, Washington, pointed out that communities’ expectations of prosecutors has changed over the years. That has led to changes in his own work, including more instances of defendants being put into diversion programs instead of prosecuted.
John J. Choi (left) and Dan Satterberg
“Racial disproportion in mass incarceration is not something we can defend,” he said. “The people who should trust us don’t. We haven’t given them a reason to.”
A key element in changing how prosecutors work and are perceived is in establishing a culture of reform-minded leadership in that role. Erica H. MacDonald, partner at Faegre Drinker and former U.S. Attorney for the District of Minnesota, said that while she was in the latter role, she organized a mandatory training course on implicit bias — not as a gesture toward reform, but as a way to create a culture that might attract the best talent to her office.
Another key is to keep an eye on what prosecutors in other states are doing, and consider adopting similar policies, said Sherry Boston, District Attorney of DeKalb County, Georgia.
“You do have an option,” she said. “Are you going to challenge the status quo? We have too many case processors — prosecutors who react to cases by saying, ‘This is the law’ and using a rubber stamp.”
Choi also recommended studying data on systemic bias to see where it crops up and how it can be curbed in a prosecutor’s jurisdiction.
“The idea of bias can paralyze us,” he said. “It’s easy to think that you can’t do anything as you watch the cases come in. But there’s a lot of good research out there with good information. You’ll find opportunities to learn and have meaningful conversations about the issue.”
One reason that systemic bias infects the criminal justice system, the panelists agreed, is that there are so many racial disparities in the entry points into the system.
Sherry Boston (left) and Erica H. MacDonald
“Juvenile detention can determine how a young person’s life is going to go,” said MacDonald. “It has a devastating effect on their mental health, and they’re more likely to be charged later with more serious crimes. And youth of color are far more likely to be detained.”
MacDonald added that a way to mitigate those negative effects is to make a greater attempt to release juvenile offenders into the custody of a trusted relative or family friend — not always necessarily a parent.
Another issue that can put juvenile offenders on a worse path, said Satterberg, is restitution — which they very often can’t afford to make.
“Restitution is an impediment to diversion efforts,” he said. “If a kid steals an iPhone, it’s a good bet that he won’t be able to pay the victim back. That’s why in King County we established a public restitution fund for cases like that.”
Probation and parole also have a disproportionate effect on minorities. To mitigate their effects, Choi said his office is pushing for diversion, increased expungements, and “dosage probation” — an approach to sentencing and supervision designed to incentivize better behavior with the possibility of having probation ended early.
“We have a system of collateral consequences that holds people back,” he said. “We keep punishing people longer than we need to; the efficacy of probation drops off after about three years.”
“You’re not giving someone a break by giving them probation,” agreed Boston. “It affects job opportunities, voting rights; it’s incarceration on the outside.”
