Via OrgTheory, a study finds that the more severe penalties faced by blacks arrested for the same charge and with the same criminal history is almost entirely explained by the prosecutor’s choice of charge (particularly those with minimum sentences). It used to be the case that judges decided penalties, but there has been a great rise in the number of laws mandating minimum sentences to take that decision out of their hands, which effectively puts it in those of the prosecutor. That is a major component of the story the late William Stuntz tells in his recent book, The Collapse of American Criminal Justice.
On a less related note, a shift from procedural rules to discretion is what Paul Romer thinks is necessary for financial regulation.
Entitled to an Opinion 
January 29, 2012 at 12:29 pm
If “black men experience moderately but significantly worse case outcomes than do white defendants arrested for the same crimes and with the same criminal history”, the closing of the quoted portion of the original doesn’t make much sense to me: “sentence disparities can be almost completely explained by three factors: the original arrest offense, the defendant’s criminal history, and the prosecutor’s initial choice of charges.” I thought we were looking at people doing different times for different crimes, so why the first two, which should be non-factors?
I’m inclined to believe that the justice system treats black men poorly, but what does that line mean?
January 30, 2012 at 7:28 pm
They are doing different times for the same arrest charges (and criminal history), but different prosecutorial charges.
February 14, 2012 at 4:10 pm
I read somewhere that there’s actually a hearing going to be held by the judicial committee on sentencing guidelines and mandatory minimums (tomorrow I think). You’re right to point out the prosecutorial element, but Congress has also set the groundwork by empowering the prosecutors with a slew of laws that take the power away from the judges.
February 14, 2012 at 7:07 pm
Yes. Fukuyama caused a bit of a stir recently when he was talking about the problems with American governance, and I don’t entirely agree, but I think there is some truth. There is some problem with governance, people are unhappy, and Congress takes action, but unfortunately Congress virtually never improves anything.