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Despite the promise of “Equal Justice Under Law” etched on the Supreme Court building, the outcomes of criminal cases continue to be influenced by race and poverty. Race comes into play in the discretionary decisions made by actors, primarily prosecutors, in how cases are treated. It is often hard to ferret out the effect of racial animus on cases because racial attitudes may be subconscious and race may be one of many factors which influence a prosecutor or a jury. Courts are generally unwilling to wrestle with these issues, and when they do address them, the available remedies are completely inadequate.

The impact of a defendant’s poverty is more apparent. As a result of poverty, a person accused of a crime may be unable to contest the prosecution’s case and present a defense due to the inability to obtain a competent lawyer and investigative and expert assistance.

Two aspects of the system are important in addressing the impact of race and poverty. First, the overwhelming majority of those accused of crimes are poor. There are of course some white collar cases, some cases involving big drug dealers, and some cases involving middle class people or their children who have run afoul of the law. But for the most part, the people accused are poor. For the most part, if you visit the courtrooms where criminal cases are being heard, you will see poor people being processed.

Because the criminal justice system deals almost exclusively with poor people, it is out of sight and out of mind for most Americans. They do not know what happens in the criminal courts. They may assume that it is operating justly and fairly, or they may not even think about it. I hope that as a result of the information provided here, those of you who graduate from this law school will care about the quality of justice for poor people whose lives and liberty are at stake in the criminal justice systems of this county. Second, the overwhelming majority of criminal cases—90% to 95%—are resolved with plea bargains. Only a few minutes are spent in court on each case—just long enough for the defendant to waive his or her rights in answers to a judge’s questions. This means that prosecutors—not judges or juries—have most of the power with regard to how cases are resolved. Prosecutors decide what charges to file, whether to seek enhanced penalties, such as death sentences or mandatory minimums, and whether to agree to plea bargains that resolve the cases with less severe sentences than those originally sought. The extraordinary breadth of this discretion—whether to charge at all, whether to seek death or settle for lesser penalties—makes it possible for racial biases to enter the process.

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