Abstract
In this secret world, racial bias moves freely and unobserved, abetted by the operation of mandatory minimums and sentencing guidelines triggered by prosecutors' choices. Because the exercise of discretion by police and prosecutors is largely untracked or unavailable to the public, implicit (or even explicit) racial bias in this context currently goes unobserved at the individual level and does not challenge the "mission accomplished" view of racial equality in criminal law. The first acknowledges the reality of racial bias within the system and seeks to mitigate it by shifting the approach to drug interdiction away from incarceration and towards a market-reality model. Because a prison-centric model of addressing narcotics has disproportionately disadvantaged and imprisoned black Americans, turning away from that model will push the other way. According to a Bureau of Justice Statistics analysis of data from 2016, eighteen- and nineteen-year-old black men were 11.8 times more likely to be imprisoned than their white counterparts, and the overall imprisonment rate for black women was twice that of white women.32 The Economic Policy Institute recently reported that while African Americans were "5.4 times as likely as whites to be in prison or jail" in 1968; in 2018 that disparity has risen to a factor of 6.4 times.33 Controlling for important variables and looking beyond broad incarceration rates, a series of studies has revealed troubling disproportionalities at each level of the criminal process. [...]it would become a part of the broader project of addressing bias within the larger society. Because discretion (and bias) is employed at multiple levels, we would have to address each of those levels in a transparency project as well. 2.Transparency and Judges Judges make their decisions in public at sentencing.