Descriptive Representation and Prosecutorial Discretion: Race, Sex, and Carceral Disparities

Abstract

Conversations around criminal legal reform often center around prosecutorial discretion. Yet, we know little about how the demographic characteristics of prosecutors influence case outcomes and race- and sex-based carceral disparities. I investigate this question using an original dataset of all county prosecutors in the US in 2001 and 2007 and find some differences between non-white and female prosecutors and white and male prosecutors. Black prosecutors are associated with fewer felony closures and convictions, Latinx prosecutors are associated with lower Latinx jail populations, and female prosecutors are associated with lower female and Black jail populations, lower Black prison admissions, and lower jail admissions rates. These findings suggest prosecutorial discretion is an important plank of criminal legal reform, and increasing the diversity of those offices may act as an important and initial step to limit the negative effects of the carceral state on particular communities.

Justice in Black and Brown: The impact of political control and representative bureaucracy on street level outcomes

“…Thus, deputies and state prosecutors may be less rigid when deciding whether to arrest or whether to prosecute a youth from the same racial/ethnic background as the respective county sheriff or chief prosecutor. In turn, this may mitigate disparities in justice outcomes for minorities (Gunderson, 2022). The six hypotheses test the premises of representative bureaucracy, organized again by outcome and minority group:Hypothesis Counties with Black sheriffs will experience fewer disparities in arrests among Black youth than other counties . Hypothesis Counties with Hispanic sheriffs will experience fewer disparities in arrests among Hispanic youth than other counties . Hypothesis Counties with Black sheriffs will experience fewer disparities in alternatives among Black youth than other counties . Hypothesis Counties with Hispanic sheriffs will experience fewer disparities in alternatives among Hispanic youth than other counties . Hypothesis Counties with Black state attorneys will experience fewer disparities in prosecutions among Black youth than other counties . Hypothesis Counties with Hispanic state attorneys will experience fewer disparities in prosecutions among Hispanic youth than other counties .…”

“…Thus, deputies and state prosecutors may be less rigid when deciding whether to arrest or whether to prosecute a youth from the same racial/ethnic background as the respective county sheriff or chief prosecutor. In turn, this may mitigate disparities in justice outcomes for minorities (Gunderson, 2022). The six hypotheses test the premises of representative bureaucracy, organized again by outcome and minority group:…”

Feminine leadership and juvenile justice outcomes: The Florida experience

“…Criminal justice and law enforcement literature has also associated female representation with better outcomes for female clients (Andrews & Miller, 2013;Schuck, 2018). Gunderson (2022) shows that female prosecutors have lower female jail populations. Based on the theory of representative bureaucracy, we expect to register less rigid justice outcomes for female youth in counties with female sheriffs and state attorneys than in counties led by their male counterparts.…”

“…Female police officers make fewer arrests (Bloch et al, 1973; Bloch & Anderson, 1974; Sherman, 1975; Sichel et al, 1978) and traffic stops (Shoub et al, 2021), receive fewer citizen complaints (Stalans, 1997), have fewer instances of use of force (Ba et al, 2021; Hoffman & Hickey, 2005; McElvain & Kposowa, 2008; Schuck & Rabe‐Hemp, 2005; Spillar et al, 2000), and increase the overall quality of law enforcement (Miller & Segal, 2019). Similarly, counties with female prosecutors have lower jail admissions rates, smaller jail populations, and prison admissions (Gunderson, 2022). State prosecutors are considered the most powerful decision makers within the justice system.…”

How U.S. Voters Elect Prosecutors: Evidence from a Conjoint Experiment

“…While studies on women and minority prosecutors are sparse, recent scholarship finds that women prosecutors and minority prosecutors tend to be more lenient. Gunderson (2022) suggests that women prosecutors are associated with lower women and Black jail populations and lower incarceration rates; similarly, Black prosecutors are associated with fewer felony closures and convictions. To simplify, we should expect that voters tend to associate women and Black candidates with liberal policies.…”