Expert Commentary

Do judges vary in their treatment of race?

2012 paper from the University of Pennsylvania, University of Chicago and Harvard University on defendant race and unequal sentencing decisions.

Los Angeles federal court (
Los Angeles federal court (

African-Americans comprise approximately 13% of the U.S. population, but they accounted for 38% of the prison population, as of June 2011. Among males incarcerated at all levels in 2010 — federal, state and local jurisdictions — there were 4,347 black males incarcerated per 100,000 residents, 1,775 Latino males per 100,000 and 678 white males per 100,000, according to the U.S. Department of Justice.

A 2012 study from the University of Pennsylvania, the University of Chicago and Harvard, “Do Judges Vary in Their Treatment of Race?” analyzed the relationship between a defendant’s race and a judge’s sentencing decision by examining more than 600,000 felony cases between 1985 and 2004 in Cook County, Illinois. The researchers ensured a random mix of cases and judges. Although African Americans made up roughly 25.9% of the population in Cook County between 1985 and 2005, they comprised 73.1% of court defendants during this time period. The study is to be published in the Journal of Legal Studies.

Key findings included:

  • The average incarceration rate for African-American defendants (51%) was significantly higher than that for white defendants (38%).
  • Researchers found little support for a connection between race and prison sentence length. “It appears that there are substantial differences in behavior … when it comes to the decision of whether or not to incarcerate defendants of different races, but not to the same extent when it comes to the decision of setting sentence length.”
  • African-American judges were found to have a lower racial gap in sentencing than white judges: “Judges who are harsher overall (as measured by incarceration rates) are more likely to sentence African Americans to jail than they are whites.”
  • The majority of the judges sampled were male (82%) and white (86%). Although there were differences found in judges sentencing based on race, there were no differences associated with a judge’s age or gender.

The authors caution that while that there is strong evidence that judges vary their treatment of defendants according to race, it is not clear what motivates these decisions. Cases are randomly assigned to judges, meaning that they see the same distribution of types of defendants. But the varied outcomes “across judges in sentencing by race suggests that courtroom outcomes may not be race blind. This may be one source of the substantial over-representation of African Americans in the prison population. Understanding the sources of variation in the criminal justice system is an important first step toward reducing disparities of various kinds.”

These findings are supported in part by an experimental study conducted by Stanford University and published in a 2012 paper, “Race and the Fragility of the Legal Distinction between Juveniles and Adults.” That analysis finds that African-American juvenile defendants may be more likely to be treated as adults — resulting in harsher punishments and more severe sentences — compared to white juveniles charged with similar crimes.

In addition, a 2012 study from Duke University examines the impact of jury race in criminal trials and highlights unequal outcomes and issues of bias in that area.

Tags: African-American, crime, law, civil rights

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