The ABA ’ s Racial Justice Improvement Project BY CYNTHIA JONES Confronting Race

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The criminal justice system in the United States is not post-racial. Across the country, African Americans, Latinos, and other minorities are overrepresented at each stage in the adjudication process. It is not uncommon for some to dismiss these disparities with oversimplified explanations, such as “Minorities just commit a disproportionate amount of crimes,” or “The cops, prosecutors, and judges are racist and treat minorities more harshly.” Neither of these sentiments reflects the complexity of the problem of racial disparities in the criminal justice system. While minorities have a higher rate of criminal activity in some crime categories, this does not explain why minority defendants who commit the same crimes and have the same criminal history as white defendants are more likely to be denied pretrial release and are sentenced more harshly. Likewise, while there are some bad actors in the criminal justice system whose professional judgment is infected by racial bias, “race neutral” laws that are fairly and evenly enforced across all racial groups can still have a disparate impact on minority defendants. To the extent there is a single cause of racial disparities in the criminal justice system, the culprit is likely discretionary power—who has it and how they use it to administer the criminal laws. Most criminal justice officials have wide latitude to make discretionary decisions that affect everything from whether a person will be stopped, frisked, arrested, or strip searched to discretionary determinations about whether a defendant will be charged with a serious felony, offered a plea bargain, detained prior to trial, or placed in a diversion program. Even during the posttrial stage, there are discretionary decisions made by judges, corrections officials, and community supervision officers regarding the conditions of probation, the location of confinement, and whether a parolee will be sent back to prison for a very minor technical violation. The ABA’s Racial Justice Improvement Project