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

• Author: Anna Gunderson
• DOI: http://doi.org/10.1177/1532673X221082638
• Published date: 01 November 2022
• Date: 01 November 2022
• Subject Matter: Articles

Article

American Politics Research

2022, Vol. 50(6) 823–836

© The Author(s) 2022

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DOI: 10.1177/1532673X221082638

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Descriptive Representation and Prosecutorial

Discretion: Race, Sex, and Carceral Disparities

Anna Gunderson

1

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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 som e differences between

non-white and female prosecutors and white and male prosecutors. Black prosecutors are associated with fewe r 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.

Keywords

prosecutors, descriptive representation, race, gender, criminal justice system

In 2019, Wesley Bell became the f‌irst Black county attorney

in St. Louis, Missouri after wide frustration with his pre-

decessor’s handling of the Michael Brown case, a Black man

shot and killed by a white police off‌icer in 2014. Bell’s

election came in the wake of wide support from community

activists seeking to institute wide reforms in that county: “his

election is a testament to the hard, hard organizing work of a

lot of people who really pounded the pavement. The point

now is to make sure that while he has our support, we also

hold him accountable”.

1

Bell’s election lays bare the tensions

between communities and prosecutors’off‌ices, the sheer

amount of discretion prosecutors wield in the criminal legal

system, and also the public perceptions of how prosecutors

ought to behave on the basis of their race or sex. Growing

attention to the vast inf‌luence prosecutors have on subsequent

outcomes in the criminal legal system and their role in the

creation of the carceral state (e.g., Pfaff, 2017) has brought up

questions regarding the determinants of prosecutorial be-

havior. What leads to variation in case outcomes and racial

imbalance in our criminal legal system? What characteristics

of prosecutors are consequential in predicting variation in

these outcomes? And, given expectations about the role of

prosecutorial diversity in criminal legal reform (e.g., Lowens

et al., 2020;The Sentencing Project, 2008) and expectations

about how diverse prosecutors behave, do non-white or fe-

male prosecutors prosecute differently?

Chief prosecutors are endowed with immense power to

inf‌luence the criminal legal system, as they alone decide to

prosecute or not, what crimes to charge an individual with,

and the overall prosecutorial priorities of their districts (Davis,

A. J., 2007;Davis, K. C., 1969).Though most prosecutors are

elected, 94 to 95% of prosecutor incumbents win their elec-

tions (Hessick & Morse, 2020;Wrigh, 2008;Wright, 201 4),

suggesting that prosecutors have wide discretion (and voter

approval) to conduct their off‌ices as they see f‌it. Moreover,

judicial review of prosecutorial charging decisions is nearly

non-existent (Pfaff, 2017) and judges act as a weak check

against prosecutorial aggression. With their vast discretion,

prosecutors areperhaps the most essential actor in thecriminal

legal system and act relatively independently, without over-

sight. However, despite this immense power, we know rela-

tively little abouthow individual characteristics of prosecutors

affects their decision-making.

This paper investigates how the race and sex of chief

prosecutors inf‌luences case outcomes. Though there have

been studies of this kind looking at individual off‌ices (Baker

& Hassan, 2020;Gilbert, 2018) or in the federal context,

among U.S. Attorneys (Farrell et al., 2009;Ward et al., 2009),

1

Department of Political Science, Louisiana State University, Baton Rouge,

LA, USA

Corresponding Author:

Anna Gunderson, Department of Political Science, Louisiana State University,

240 Stubbs Hall, Baton Rouge, LA 70803-2804, USA.

Email: agunderson@lsu.edu