By: Ben Smart

America has a well documented problem of racial disparity in criminal justice. The criminal justice system has racist roots. The discretion of judges, prosecutors, and even jurors, is racist (whether intentional or not). This makes perfect sense. Humans are flawed beings, incapable of objectivity. I doubt most people in America today are anywhere near racist in the classical, hateful sense I grew up understanding it to be. But our lack of objectivity is pointed, and Americans tend to be implicitly biased against Black people. This is likely the reason any discretion we afford those in power so frequently churns out racially disparate results. We can’t be objective.

So, what if we tried to replace the subjective discernment of individuals who work in criminal justice with systems and policies? Would we be able to create objectivity through strict policy-based regulation of police, prosecutors, or judges?


We can’t even make facial recognition technology racially neutral. Seemingly race-neutral criminal justice policies fare no better, from laws that target crack over powder cocaine (an intentionally racial choice), to the use of drug free zones that almost exclusively punish minorities, policies consistently fail at being racially neutral. Sentencing and charging policies that attempt neutrality also create racial disparity, as they may rely on prior convictions, or assume gang affiliations based on where they live. Systems we make are just as bad, frequently worse, than the individuals creating the system or the people in power who the system is made to limit. But because these policies take away discretion for those working in the justice system, they are left no choice but to strictly enforce harsh laws.

The fact of the matter is, we can’t make things much better than we ourselves are. But a flawed system is harder to fix than a person’s mistakes. Despite individual biases, discretion can still be a good tool. In fact, the criminal justice system has discretion in place primarily so that we can reduce the negative effects of our justice system-For instance, police can avoid referring charges if they do not think the crime is appropriate; prosecutors can turn down charges, or charge proportionally lesser crimes, offer more lenient pleas, or argue for reduced sentences; and judges can choose merciful sentences (where sentencing schemes allow). If all that fails, the executive branch, through a governor or the president, still has the power to provide clemency through commutations or pardons. These are four separate phases, and the purpose of discretion in all of them is to allow for mercy.

This brings me to what must change in how the criminal justice system uses discretion: discretion is not a weapon; it is an opportunity to show mercy. Laws are traditionally written with maximum sentences, to create a limit on how we can punish. Mandatory minimums fly in the face of the purpose of our system, and their effects are demonstrative of the flaws of our current “tough on crime” mentality. They should be ended.

To be clear, I’m not saying that we should do away with all criminal policies and just hope for the best, but we need to be careful and we need to be human about what policies or guidelines we may use. We still need to pay close attention and hold people accountable for their bad actions. We cannot take away people’s ability to make decisions – we just need to improve their decisions. No-one can make perfect decisions; we all have implicit biases. These biases will continue to negatively impact minorities. This is not an acceptable stopping point, but the other methods of “race neutral policies” do not work. Changing systems is not working, so perhaps systemically changing people (such as through implicit bias trainings) could work. Police officers, prosecutors, judges, and the executive need to understand why they were given discretion. They (and me, as I aspire to prosecution) know why they have been given power – to punish. But we need to understand that discretion has been given that we may show mercy.

Ben Smart received a B.A. in Philosophy and Sociology from The University of Oklahoma and is currently a 2L at Sandra Day O’Connor College of Law. He is particularly focused on justice in criminal and international law, and hopes be an ethical prosecutor after graduation. When not working, he enjoys messing with his dog and throwing a line in water, hoping a fish will pity him enough to bite.