RACIAL BIAS IN POST-ARREST AND PRETRIAL DECISION MAKING: THE PROBLEM AND A SOLUTION

There is significant racial disparity in U.S. incarceration rates, with African Americans vastly overrepresented. Given that almost all criminal cases resolve through plea bargaining, a process that takes place between the poles of arrest and trial, if progress concerning racial disparity in incarceration rates is to be made, greater understanding of the post-arrest and pretrial (PAPT) period is necessary. What do we know about racial bias in PAPT decision making, and what can the psychology of prejudice teach us about it? In this Article, we map the factors that are liable to lead individuals to disparate treatment decisions, and we apply this thinking to the primary institutional PAPT actors: prosecutors, criminal defense attorneys, and judges. We also consider defendants' attitudes towards the justice system and their perceptions of discrimination, as well as what such cognitions mean for their plea bargaining decisions. Finally, while a number of interventions have been tried and even more have been proposed, very little progress in racial disparity in incarceration rates has been made. We endorse a novel way forward. Prosecutors should be provided with race-neutral baselines, anchors to their decision making as a case progresses, and prosecutors' offices should organize their institutional data and allow either internal or external parties to analyze it and produce regular and open reports. In addition to resulting in greater fairness in PAPT decision making, this process will increase trust in the U.S. criminal justice system.