Sentencing Discrimination: The Hidden Role of Implicit Racial Bias

Judges who hand down criminal sentences every day in our federal and state courts engage in sentencing discrimination without even really understanding or being aware of it. How do we know that is true, and what can we do about it?

Strangely enough, part of the answer can begin on Broadway. “What do Broadway musicals have to do with sentencing discrimination?” you may ask. Well, stay with me, and you’ll see.

“Everyone’s A Little Bit Racist” – Avenue Q

The Tony Award winner for Best Musical in 2004 was a little musical called Avenue Q, a kind of Sesame Street for adults. The hilarious musical comedy incorporated a lot of fun, if somewhat bawdy, puppets along with a human cast of multi-racial characters.

Sentencing Discrimination, Implicit Racial Bias Image

Sentencing Discrimination

What made the show a Tony winner was its marvelous knack for playfully coming close to the edge on some serious subjects, but doing it in a way that never offended. One song in the show that did just that was the song titled, “Everyone’s A Little Bit Racist.” Pointing out, with tons of humor and some subtlety, that everyone is prone to making small judgments based on race even if they don’t mean to.

The lighthearted delivery of the message allows audiences of all stripes to reflect on how we, as humans, tend to make snap judgments of other ethnic and racial groups that may not be fair or three-dimensional. Further, it brings forward the reality that people of all races have feelings about others based on stereotypes, media coverage, family upbringing, and personal experiences. This as you might imagine has a real impact on sentencing discrimination.

In sum, the song lets us laugh a little at the human condition that often falls into “us vs. them” dichotomies drawn along racial or ethnic lines, while acknowledging that we are all guilty of it. Simply put, acknowledging there is a problem is a good first step.

Are Judges “A Little Bit Racist” Too?

It is no surprise that implicit racial bias affects sentencing decisions, too.  Commentators “universally agree” that racial disparities are pervasive in the U.S. criminal justice system. So, judges are no exception when it comes to implicit racial biases and resulting sentencing discrimination.

Indeed, the notion of implicit bias among judges who sentence criminals has been the subject of some legal scholarly work. From one study in particular, three main conclusions come to the fore:

  1. Implicit racial bias exists even in egalitarian individuals. Further, those individuals are less likely to be aware of those biases because they lack explicit biases.
  2. The effects of implicit biases in the courtroom are invisible to the naked eye.
  3. Overworked, extremely busy courts with too few resources are rich environments for systemic implicit racial biases to thrive.

Judges, like all of us, have blind spots when it comes to bias. Also like all of us, judges can see bias in others, but not in themselves. For example, in one study 97% of state court administrative law judges rated themselves in the top half of their colleagues in their ability to “avoid racial prejudice in decision making.” In another study, 92% of senior federal district judges ranked themselves in the top 25%, compared to their colleagues, in their ability to make decisions free from racial bias.

Both numbers, of course, are mathematically impossible, and simply point to the fact that judges have difficulty seeing bias in themselves, which can result in sentencing discrimination.

The Black/White Implicit Association Test (IAT) and Its Implication for Sentencing Discrimination

Another study, which involved the Black/White Implicit Association Test (a test which determines a person’s positive or negative associations with certain physical attributes), came to some interesting conclusions with regard to state and federal judges:

  • All judges, state or federal, possessed strong implicit biases against Asians and Jews. Relative to Caucasians (who the judges associated with positive moral stereotypes like trustworthy, honest, generous), judges associated Asians with negative moral stereotypes like greedy, dishonest, and scheming.
  • Similarly, all judges associated Jews with negative moral stereotypes compared to associations related to Christians.
  • Federal district judges gave slightly longer sentences to Jewish defendants than Christian defendants, but showed no significant difference between sentences for Caucasians compared to Asians.
  • State judges (contrary to prediction) gave Caucasian defendants significantly longer sentences than Asian defendants.
  • Finally, the IAT results showed a strong Caucasian preference among Caucasian judges, while the preference was closer to neutral for African-American judges.

The ultimate conclusion is that judges have an equal or greater implicit bias against African-Americans, Asians, and Jews, compared to Caucasians, but are able to control biases when deciding on the length of sentences. This helps to reduce sentencing discrimination.

What Can Be Done To Remedy The Implicit Bias In Judges?

Remedying the problem of implicit bias requires a generations-long effort. But some of the ways to begin include:

  1. Raising awareness of the existence of implicit bias in decision making.
  2. Provide judges training in the real differences between ethnicities and races, and dispel stereotypes and myths with real facts.
  3. Monitor thought processes and decisions for possible bias.
  4. Try to remove certain stressors on judicial decision-making – such as long hours, and fatigue.
  5. Have judges commit to specific decision-making criteria before reviewing the facts of a case.
  6. Allow for mechanisms to give feedback on decisions made.

While these recommendations only scratch the surface of what needs to be done in our criminal justice system, it is encouraging that we are now discussing the issue of implicit bias in judicial decision-making.

If you are in need of an advocate to help you with sentencing discrimination consider discussing your case with one of the best in the business on federal sentencing law – Brandon Sample, Esq. He has a track record of success in leveling the playing field anywhere sentencing discrimination exists. Call today 802-444-HELP for a free consultation.

Additional Resources

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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