scarlett wilson

Prosecutor seeks to document, eliminate racial disparities in justice system

UofSC alumna Scarlett Wilson collects data that could show effects of unconscious bias on defendants of color

Scarlett Wilson’s passion for justice is so strong that she is willing to open the process in her office to in-depth scrutiny to ferret out racial disparities in criminal prosecution.

The 9th Circuit solicitor for Charleston and Berkeley counties is working with researchers and other partners to collect data on the impact of such bias. As negative effects are revealed, her office is taking steps to correct them.

“I am not concerned that I have overt racists on my team,” says Wilson, ’92 law. “But we know from studies there is implicit bias in a variety of fields. I hope our studies show that we don’t have any — but I think that’s naïve.

“We have learned more about institutional, systemic racism and how that leads to unconscious or implicit bias. I do believe we have issues, and there is reason to think that it permeates and affects our decision-making.”

Wilson’s efforts are bold, says Jared Fishman, founding executive director of the Justice Innovation Lab, one of Wilson’s partners in the research.

“I think she is truly committed to making sure her system is just and fair,” says Fishman, a former federal prosecutor with the Department of Justice’s civil rights division who worked with Wilson on a case involving Walter Scott, an African American man shot and killed by a North Charleston police officer in 2015. “Even with people who are trying to do their best to be fair, to be just, to be unbiased, human nature creates bias and we have an obligation to be internally reflective.”

Fishman says the goal is to use the process that Wilson’s office is going through — collecting data to find the impact of this unintentional bias — to look for similar problems around the country.

“It takes someone who is willing to look at those numbers and to find things that may not be pretty,” Fishman says. “I admire Scarlett’s leadership. I think it’s exactly what we need to make our system more fair.”

Early experiences shape outlook

Wilson’s understanding of the racial disparities in South Carolina and across the U.S. was developed when she was growing up in Hemingway in rural Williamsburg County.

“I went to school in a very poor school district in Williamsburg county,” Wilson says. “I had a number of African American teachers — women — who I adored and who I know shaped me and had a tremendous effect not just on my education, but on me as a person.

“That has always been with me through my adult life. I feel very fortunate to have had so many African American role models in my life.”

Wilson and her partners in the research, which also include Loyola University at Chicago, the George Washington University Law School, the Toulouse School of Economics and the Beeck Center for Social Impact and Innovation at Georgetown University, hope her office’s work can become a model for other prosecutors around the state and country, but she admits that a big reason she is able to do this in-depth research is money.

I admire Scarlett’s leadership. I think it’s exactly what we need to make our system more fair.

Jared Fishman, founding executive director of the Justice Innovation Lab

The data collection began five years ago with a grant from the John D. and Catherine T. MacArthur Foundation. And it has been slow going, in part because the forms and processes prosecutors’ offices use don’t lend themselves to objective data collection.

“We are changing the way we do business so we can collect data so it can be analyzed,” Wilson says. “Working with MacArthur helped me see how data could help us make better decisions and fairer decisions.”

But even before all the data is collected, Wilson is making changes.

“I am not waiting on the results,” she says. “I am presuming we have bias.”

Opening the process to review

Her office now makes sentencing recommendations publicly available, something that has become a model for other prosecutors’ offices.

“Anyone can see them,” she says of the recommendations that go a long way toward determining how much time a convicted criminal spends in prison. “It’s human nature. When you realize that anyone can study or observe what decisions you are making in the calm of your office, it makes you more aware of what you are doing and the effects it has on people.”

Another step she took was to send her entire team — about 150 employees — to race equity training, which she says “was mind-blowing.”

“It was intense. It was emotional. It was invaluable. But it was extremely expensive,” Wilson says, adding that funding for the training came from her research partners. 

Beside unintentional personal bias, there are factors in the system that have the potential to create racial inequity, including criminal history and the role it plays in setting bail and in plea bargaining — the way most criminal cases are resolved. Trying to account for criminal history in the data has been difficult.

“Numbers don’t always tell the whole story and that brings us back to criminal history,” Wilson says. “We have to be able to factor that in and that’s been the challenge, but we have some ideas about how to do it.

“We want to see how it impacted our decisions. I know when I have a case, criminal history is one of the first things I am interested in.”

Other issues that could have a greater impact based on race are mandatory minimum sentences for certain charges and risk assessment tools that help with pre-trial diversion — a program that help defendants avoid a trial, jail time and a lifetime being dogged by a conviction.

“I’m not out to be an activist. I have a great respect for the law and our justice system,” Wilson says. “But we have to be willing to grow and to change as we learn and experience things. This is especially true in professions with immense discretion like that of prosecutors and judges. We have the freedom to innovate. Our courage should meet with that freedom.”

And with that discretion and freedom is another opening where unconscious racial bias can enter the system and why prosecutors have to be willing to open their operations to scrutiny.

“It makes me nervous, but I just know it’s the right thing to do,” she says. “The scary part that holds back so many of us is letting perfect be the enemy of good.”