charges to bring. When it is required in the interest of justice, we can decline to prosecute. The police must bring their cases to us, and judges can only preside over those cases we bring before them. And, our legislators depend on us for guidance in the drafting of criminal laws and for the implementation of those laws when passed. So, it is incumbent on us to bring together all of the parts of our system to face this issue.

Our greatest challenge, however, is the unconscious bias that can sometimes seep into the decisions we all must make. Do I consider statements of some defendants, victims or witnesses differently from others because they look like me and we share a similar background? Am I more skeptical of statements made by people who do not look like me and come from a different background? Do I treat one case more seriously than another, and do I want a greater penalty when the person is visibly different from me and I cannot understand the conduct? Like prosecutors, judges too must ask these questions. But how can we deal with the unconscious on a system-wide basis? The lack of an easy answer should not deter our efforts.

Our legislators have a similar serious concern. How many of our laws have inherent bias? How many times have legislators either refused to criminalize conduct or minimized the penalties because subconsciously they are more accepting of the conduct that people they know may undertake? And, how many times have they criminalized behavior, setting disproportionately harsh penalties for conduct that is completely outside their experience or comprehension? For instance, the more serious penalty for crack cocaine compared to powder cocaine in most jurisdictions should be examined to determine whether it reflects an unconscious bias. As prosecutors, we need to be able to help our legislators listen to the concerns of people of color and understand the whole effect of the laws that they enact on our different cultures.

In the future, prosecutors must take the lead to insist that our colleagues in the criminal justice system address legitimate concerns about racial unfairness. This will not be a comfortable debate. The only question is whether the debate occurs now, in an environment where we take the lead or later, when a faltering criminal justice system drags us into the debate because of a community-wide perception of racial unfairness.