Prosecutorial discretion is a principal driver of disparities in law enforcement in the U.S. But behind that is often police discretionary enforcement. The U.S. Supreme Court has virtually blocked challenges based on racial or ethnic disparate impact absent rigorous proof of discriminatory intent. Since Washington v. Davis(1976) more than “volition” or “awareness of consequences” is required to prove purposeful discrimination.
Dean Johnson therefore sees little reason to expect courts to address the racially disparate impacts of deportation enforcement which is driven for many reasons by the ordinary criminal justice process. Legislators are more likely to be responsive, he suggests. Is it unrealistic to hope that prosecutors and defenders could be drivers of a campaign to improve our record on the principle of treating like cases alike? Is RPC 8.4’s command against “conduct prejudicial to the administration of justice” a tool against discrimination? Or is it limited to purposeful “bias” in the Washington v. Davis sense? – gwc
by Kevin Johnson (Dean, UC Davis Law School)
The U.S. immigration removal system targets noncitizens who are involved in criminal activity. Relying on state and local police action, which many claim is racially biased due to such practices as racial profiling, the U.S. government removes nearly 400,000 noncitizens a year, with more than 95 percent from Mexico and Latin America (even though the overall immigrant population is much more diverse). State and local governments have resisted some of the federal government’s aggressive removal efforts through “sanctuary laws,” which are designed to build the trust in immigrant communities necessary for effective law enforcement by local police. Reforms in the immigration laws are necessary to reduce the racially disparate impacts of reliance on the criminal justice system for immigration removals.