Can a Judge's Hidden Racial Bias Affect a Sentence?

Yes, it can. Judges carry hidden biases, just like everyone else, and research shows those biases can creep into sentencing even when a judge sincerely believes they are being fair. Judges in federal and state courts can engage in sentencing discrimination without ever being aware of it. Here is how researchers know that, and what can be done about it.

This hidden bias is called implicit bias: quick, automatic judgments about people based on race or ethnicity that a person may not know they hold.

"Everyone's A Little Bit Racist"

The musical Avenue Q won the 2004 Tony Award for Best Musical. One of its songs, "Everyone's A Little Bit Racist," makes a simple point with humor: most people make snap judgments about other groups without meaning to.

The show was a kind of Sesame Street for adults, with puppets and a multi-racial human cast. It succeeded because it came close to the edge on serious subjects without offending. The song lets audiences of all backgrounds laugh a little at how often we fall into "us vs. them" thinking along racial or ethnic lines, while admitting we all do it.

Sentencing Discrimination

People of all races have these feelings about others. They come from stereotypes, the news, how we were raised, and our own experiences. As you might imagine, they have a real impact on sentencing, and admitting that is the first step toward fixing it.

Are Judges Biased Too?

Yes. Judges are people, and studies show they have the same kinds of hidden racial bias as everyone else. Commentators "universally agree" that racial disparities are pervasive in the U.S. criminal justice system, and judges are no exception.

Legal research on judges points to three main lessons:

1. Hidden bias shows up even in people who hold fair, equal views. Because they have no open prejudice, they are less likely to notice it.
2. You cannot see the effects of hidden bias in a courtroom just by watching.
3. Busy, overworked courts with too few resources make it easier for hidden bias to affect results.

Judges also tend to see bias in others but not in themselves. In one survey, 35 of 36 New York City administrative law judges (97%) rated themselves in the top half of their peers at avoiding racial prejudice in their decisions. According to the original version of this article, another study found that 92% of senior federal district judges ranked themselves in the top 25% of their colleagues in their ability to make decisions free from racial bias.

Both results are mathematically impossible, which shows how hard it is for anyone, judges included, to spot their own bias.

What the Implicit Association Test Showed

The Implicit Association Test (IAT) is a computer test that measures how quickly a person links groups of people with good or bad ideas. Differences in response time can reveal hidden preferences.

A 2009 study of trial judges (Rachlinski et al., Notre Dame Law Review) used a Black/White version of the test. It found:

• White judges showed a strong hidden preference for white people.
• Black judges showed no clear preference either way.
• Judges carry the same hidden biases as others, and those biases can affect their decisions. But when judges are aware of the risk and motivated to be fair, they can often correct for it.

A 2017 national study of 239 state and federal judges (Levinson, Bennett & Hioki, Florida Law Review) tested hidden stereotypes about Asian Americans and Jewish people. It found:

• Judges linked white people and Christians with positive traits like "trustworthy" and "honest."
• Judges linked Asian Americans and Jewish people with negative traits like "greedy" and "dishonest."
• Federal district judges gave Jewish defendants slightly longer prison terms than identical Christian defendants. The authors believed hidden bias was the likely cause.
• Federal judges showed no significant difference between sentences for white and Asian American defendants.
• State judges, contrary to what the researchers predicted, gave white defendants significantly longer sentences than Asian American defendants.

Taken together, the studies found that judges hold equal or greater hidden bias against Black, Asian American, and Jewish people compared to white people. In many cases, though, they were able to control those biases when deciding how long a sentence should be, and that helps reduce sentencing discrimination.

What Can Reduce Hidden Bias in Sentencing?

There is no quick fix. Undoing hidden bias will take a generations-long effort. Researchers suggest these steps as a start:

1. Teach judges that hidden bias exists and how it works.
2. Train judges with real facts that break down stereotypes.
3. Have judges check their own reasoning and decisions for possible bias.
4. Cut down on stressors like long hours and fatigue, which make snap judgments more likely.
5. Have judges commit to decision rules before they review the facts of a case.
6. Give judges ways to get feedback on their decisions.

These steps only scratch the surface. But open discussion of hidden bias in the courtroom is a real start.

What This Means for a Federal Case

A defense lawyer cannot change how a judge was raised. What a lawyer can do is give the judge a full, specific picture of the person being sentenced, through letters, records, and a clear account of their life, so the decision rests on facts rather than snap impressions.

If a judge's words at sentencing suggest that race or ethnicity played a role, the lawyer should object on the record at the hearing. Any appeal must start with a notice of appeal filed within 14 days after the judgment (the court's written sentencing order) is entered (Fed. R. App. P. 4(b)(1)(A)).

Additional Resources

<https://www.yalelawjournal.org/pdf/BennettFinalforPDF_nvducw5k.pdf>

<https://www.law.georgetown.edu/wp-content/uploads/2017/10/ScienceofEquality_web.pdf>

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.