Contributing Author: Nathanael E. Wright, Chief Assistant District Attorney, Chatham County (GA)
Diversity, equity and inclusion (DEI) is not just the new hot topic, it is really an important organizational tool for a well-run office or a business. Studies show that businesses with diverse staff have positive profitable outcomes, and outperform similarly situated companies that lack a commitment to diversity. Though not driven by profits, the public sector can benefit from DEI in the workplace, especially a prosecutor’s office.
According to the American Bar Association (“ABA”), the prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants. These duties place a prosecutor’s office in a very distinct place in the criminal justice system. A prosecutor must consider varied interests because the decisions have a great impact on all
members of society. This role, given its impact on so many competing interests, is ripe for DEI. A prosecutor benefits from having both an individual understanding of unique perspectives, as well as, a team who has the same. In short, the ABA definition requires a prosecutor seek justice, which means different things to different people, hence the need for DEI.
Understanding DEI — The Breakdown
Diversity is the existence of differences within a particular setting. In a prosecutor’s office this can include, but not limited to: physical characteristics such as: race, gender, age, sexual orientation, and socioeconomic class. Though, there are non-physical attributes like thoughts and experiences that are equally as important as the physical. A diverse team of prosecutors increases the chance of collaboration and creative problem solving as it relates to internal and external office policies. The days of prosecuting cases for the sake of prosecution are falling by the wayside, all defendants cannot and should not be treated the same. Prosecutors need to embrace the ever changing demographics in their jurisdictions. Collaboration will lead to innovative case resolution, without losing focus of the duty of the prosecutor, which is to achieve just outcomes. A diverse office creates the opportunity for an environment that welcomes people of all backgrounds, beliefs and experiences, which will lead to an improved criminal justice system and a well-served community.
Diversity is an important first step, but the next is inclusion. Inclusion is the practice of ensuring that employees feel a sense of belonging in the workplace. An inclusive workplace is one where differences are welcomed and there is a feeling of safety where a person can freely express themselves without ridicule or judgement. This can be integral in the prosecution of cases for it allows ideas to be considered and vetted. The feeling of openness will lead to staff empowerment as well as innovative ways to dispose of cases. It should be noted, innovative disposition of cases is not the same as letting the accused run free, but does allow for justice to be served in a nontraditional way. Inclusion gives diversity a place to thrive. Without an inclusive workplace the efforts to obtain a diverse office will be frustrated for there would be nowhere for the benefits of the diverse workforce to exist.
Equity rounds out DEI in the workplace. Equity refers to fair and just practices, as well as, policies that guarantee employee success in the workplace. Equity is different than equality, in that equality implies treating everyone as if their experiences are exactly the same. In contrast, equity gives those who may not have certain opportunities access to those opportunities. For example, in some cases, assistant prosecutors get experience from dealing with a lot of cases, having a lot of trials and getting a lot of exposure. Those assistants put themselves in a position for promotions and other leadership roles. Management, either purposely or unknowingly, allows this to happen. This situation may deny others the same opportunities, especially people who traditionally are not afforded those opportunities due to systemic impediments or other practices that support bias. Since these biases exist, something must be done to give others a chance for the same success. For these reasons, a prosecutor must create an equitable workplace that fosters fairness.
The implementation of equity must be intentional and purposeful. While diversity and inclusion are intentional, they can also be organic. An employee is more likely to walk into a diverse workplace, than one that is equitable. In order for a workplace to be effective in equity it must create programs, protocols and policies that reform the environment which changes the office culture. These changes must be created to impact and safeguard an organizations processes as they relate to recruiting, hiring and retaining quality staff. That way, it ensures that those who suffer from historic denial of opportunities are given the same chances.
DEI — The Movement
Moving the DEI concept into practice is so significant to society that in June 2021 the Biden Administration issued the Executive Order on Diversity, Equity, Inclusion and Accessibility in the Federal Work Force. The executive order states: “As the Nation’s largest employer, the Federal Government must be a model for diversity, equity, inclusion, and accessibility, where all employees are treated with dignity and respect. Accordingly, the Federal Government must strengthen its ability to recruit, hire, develop, promote, and retain our Nation’s talent and remove barriers to equal opportunity. It must also provide resources and opportunities to strengthen and advance diversity, equity, inclusion, and accessibility across the Federal Government. The Federal Government should have a workforce that reflects the diversity of the American people. A growing body of evidence demonstrates that diverse, equitable, inclusive, and accessible workplaces yield higher-performing organizations.” In short, for a successful America, the composition of federal employees should mirror our nation’s greatest resource, its diverse citizens.
DEI expert Liza Wisner observed, “Our communities are changing from being
homogenous communities to having multiple values, perspectives, interests, and citizens’ communities. A lack of diversity in government leadership, equitable decision making, and inclusive initiatives can be roadblocks to delivering effective public policies and services.” Both the Executive Order and Wisner convey how pertinent it is for the government to reflect the diversity of the American people. In the same vein, the ABA suggests: “in selecting personnel, the prosecutor’s office should also consider the diverse interests and makeup of the community it serves, and seek to recruit, hire, promote and retain a diverse group of prosecutors and staff that reflect that community.” The competing interests at play in any given jurisdiction make diversity a vital goal for a prosecutor’s office to attain. Hiring diverse personnel is pivotal for they move prosecutors from a cookie cutter approach to dispensing justice in a reasonable manner tailored to an individual’s circumstances, what some call compassionate prosecution. However, it is really the thoughtful and fair evaluation of cases, which is the true function of criminal justice. Simply put, an office that reflects the community it serves presents a better point of view for the prosecutor, which allows for a better understanding of people and their circumstances, which leads to a more just system which builds community trust. To be clear, the goal is not to socialize
prosecution, but to have a better understanding of the methods for effective prosecution.
Check Your Bias
Bias is a major hindrance to DEI for it allows for the use of preconceived ideas to form against people or a group of people. There are two types of bias, conscious bias — which shows prejudice for or against one party, mostly in a manner that lacks fairness which is obvious or can be self-identified. The other, unconscious bias or implicit bias, is less obvious to the person with the bias, but more prevalent of the two types. This is true since implicit bias is created early in the human experience, then takes hold and grows as we grow. Implicit bias operates outside our awareness, sometimes we don’t know it’s there. The simple fact that implicit bias exists unconsciously is the main reason why it has no place in the office of a prosecutor, its mere existence threatens the diversity of thought and experience mandated to a prosecutor.
Unconscious bias can effect a prosecutor’s work, both in hiring staff and how prosecutors do their jobs. Bias in hiring can be problematic because it can create a single minded work environment. Meaning, a prosecutor who hires others so aligned with their own thinking can miss out on what deficiencies or a lack of skills a person may possess. In contrast, rejecting candidates who are less like the prosecutor, though qualified, based on an implicit bias denies the office growth. The bias in action hinders the sharing of ideas from varied viewpoints, life experiences and cultural backgrounds. Hence, stunting the growth potential and success of the office.
However, implicit bias has effects beyond people. The bias can extend into processes, programs, and policies, this is a called systemic bias. Though created by people, it tends to linger because systemic bias is the how an organization conducts its business. If this type of bias goes unchecked the existence of implicit bias is almost irrelevant because there could be incredibly diverse people following archaic processes resulting in “business as usual.” The criminal justice system is perceived to be rife with bias in its procedural administration, which is why prosecutors need to be mindful how they dispense justice. This includes, the manner in which cases are chosen for prosecution, the manner which plea bargains are offered, the manner and reasoning charges are dropped or cases dismissed. Prosecutors have broad discretionary power which in some instances can lead to unintended consequences for members of certain groups or backgrounds despite efforts to be fair and equitable. This broad discretion is the exact reason why policies and procedures need to be identified, reviewed and modified, because longstanding rules that go unchecked can produce results that are unfair or lack equity.
The impact of implicit bias goes beyond the prosecutor and their staff; the community also suffers from such biases. Given the perception of a so called “broken” system, addressing unconscious bias in the administration of criminal justice is significant to creating community trust, in the hope that the community will consider that the criminal justice system is striving for fairness and equity. However, the lack of community trust is clearly seen by issues between law enforcement and the public which can be traced to the implicit bias in the procedural administration of criminal justice. In short, people who are unfavorably subject to the criminal justice system have their own set of beliefs, based on their own lived experiences which have a detrimental effect in the trust of the criminal justice system. When the public perceives the criminal justice system as fair and equitable, they are more likely assist law enforcement in a meaningful way, which should lead to safer communities.
Unconscious bias is learned behavior from past experiences which is normal for human beings, however, we should not use the fact that it occurs normally as an excuse for poor behavior or bad treatment of others. Fortunately, implicit bias is malleable, meaning once it is recognized it can be modified. The biases formed over time can be gradually unlearned, if the person is willing. With that understanding, the personal battle against unconscious bias starts with self examination which leads to significant introspection into one’s own behavior. However, self reflection is only one of many steps in minimizing bias.
DEI initiatives can be enacted on a large or small scale, the only important aspect is that the roll out is done purposefully with intention. Effective change in the DEI space comes from the top, the district attorney must lead the charge for DEI to create support among staff members. A wishy washy leader gives wishy washy results. The district attorney and their leadership team must make organizational changes that create a culture open to DEI. Next, the message of the organizational change must be done in a way that filters down through to all the staff, the methods must be consistent and frequent to have a lasting effect. Below are some intentional DEI methods that prosecutors can use:
- Create a position solely for the purpose of DEI. For best results, this position either needs to report to the district attorney directly, or be the office leadership. Hiding this position within HR or with an office manager can dilute the effect DEI in the office.
- Review all policies and procedures looking for bias and re-write them. This includes internal policies and hiring practices.
- In addition to a mission statement create a diversity statement. They are not the same.
- Make DEI part of you strategic plan.
- Do regular trainings on various aspects of DEI or make sure internal trainings have a DEI element.
- Create staff surveys to gauge the staff regarding DEI.
- Review DEI policies and procedures at least once a year
- Send staff DEI recognition/appreciation emails (e.g. Black History Month, Veteran’s Day, Lunar New Year, etc.).
DEI initiatives take time to implement for a meaningful impact. Successful programs will have a lasting impression on the legacy of a prosecutor’s office. Patience along with determination is needed, the same way implicit bias is learned overtime, breaking bias takes time. The criminal justice system will only benefit from the prosecutor employing a DEI approach in their practices. Using DEI in business has proven to be effective, particularly as it relates to employee satisfaction and profits. Prosecutors’ offices, though government entities, can also benefit from DEI practices, but in a different way. It creates a culture of acceptance where ideas flow freely in the administration of justice, it allows appreciation to justice impacted individuals and builds community trust. It’s a long journey, but one that is needed.
Nathanael E. Wright is the Chief Assistant District Attorney over Communications, Diversity and Inclusion in the Office of District Attorney Shalena Cook Jones in the Eastern Judicial Circuit, Chatham County, Georgia.