Expert Commentary

How judges understand, try to address racial disparities in the criminal court process

2016 study in Criminology that seeks to understand how judges' decision-making processes may cause or support racial disparities in the criminal justice system.


Black and Hispanic adults historically have been overrepresented in the U.S. prison population. In 2016, almost 38 percent of inmates who were in the custody of the Federal Bureau of Prisons were black. About 34 percent of inmates, regardless of race, identified as having a Hispanic ethnicity. Meanwhile, 2015 data from the U.S. Census Bureau shows that 13.3 percent of the population was black and that 17.6 percent nationwide were Hispanic.

Researchers have tried to understand the reasons behind this disparity. Some of the research has focused on how poverty, a lack of education and other social forces have contributed to the problem. Prior research also has looked at whether some racial and ethnic groups are more likely to commit certain crimes and whether some groups are more likely to face arrest than others. For example, a 2006 study published in the journal Criminology suggests that the majority of people who delivered heroin, methamphetamine, ecstasy and powder cocaine in Seattle were white while most of those who delivered crack cocaine were black. Yet 64 percent of all of the people arrested for delivering one of these five drugs was black.

A 2016 study published in Criminology looks at another possible factor contributing to higher percentages of black and Hispanic individuals going to prison. Two Harvard University scholars interviewed 59 state judges in one Northeastern state to try to understand how their decision-making processes may cause or support racial disparities in the criminal justice system. For the study, titled “How Judges Think About Racial Disparities: Situational Decision-Making in the Criminal Justice System,” the authors sought to better understand what judges think of these disparities and what, if anything, they do to address them at key points within the judicial process. The authors supplemented in-depth interviews with the judges with interviews of state prosecutors and defenders and by observing arraignments, pretrial motions, plea hearings, jury selections, jury trials, bench trials and parole hearings. Forty-two of the 59 judges who were interviewed were white and 10 were black.

Their key findings include:

  • Most of the judges interviewed (76 percent) said they thought that racial disparities were the result of a combination of factors, including discriminatory treatment by court officials or police officers and higher rates of offending among black and Hispanic people.
  • Almost a quarter of judges exclusively blamed factors outside the criminal justice arena – the criminal offenders themselves and problems that arise before offenders come into contact with criminal justice systems.
  • Many judges said they make decisions based on preconceived notions about the practicality of certain treatments for defendants of a certain race or socioeconomic class.
  • Judges use two types of strategy – interventionist and noninterventionist — for addressing the problem of racial disparity. A judge using a noninterventionist strategy may consider his or her own differential treatment of the defendant but will not try to address and correct differential treatment by others in the judicial system. A judge using an interventionist strategy tries to correct for differential treatment that a minority defendant may have faced at some point within the judicial system.
  • Judges reported using a noninterventionist strategy most often. For example, 75 percent of judges reported using a noninterventionist strategy at arraignment. More than 85 percent reported using nonintervention strategies at both plea hearings and sentencing.

This study indicates that even when judges acknowledge and try to account for their own implicit biases, they still may contribute unintentionally to racial disparities. That’s because “judges’ widely-used noninterventionist strategies many render them ineffective at combating disparities,” the authors state. Because this study analyzed only the opinions and strategies of a few dozen judges in one state, it is difficult to extrapolate these results for judges across the country as a whole. But the study gives an informative snapshot into a cross-section of judges’ decision making in a Northeastern state that can be built upon for further research.

Related research: A 2015 study published in the Journal of Criminal Justice examines whether judges treat female defendants differently than male defendants at key points in the criminal justice process. A 2015 study by a Harvard University political scientist looks at how a judge’s race affects how his or her decisions are handled during the appeals process. A 2016 study in Criminology explores the demographic changes that have occurred within the nation’s prison population over the past several decades and the reasons behind those changes.


Keywords: incarceration, imprisonment, punishment, poverty, class, demographic, jail, demographics, prison boom, prison population

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