Diversifying the judiciary can worsen in-group bias against defendants

Evidence

In chapter 6, Mocan discusses judicial bias. In spite of the fact that the U.S. Supreme Court Building in Washington, DC, grandly bears the words “Equal Justice Under Law,” research shows that defendants’ race impacts case outcomes, even when holding constant the factors that should matter for case adjudication. This means that two similarly situated defendants, charged for the same crime and having the same mitigating or aggregating circumstances, face different probabilities of conviction and receive different sentences—on account of their different races. Moreover, judges’ attributes, such as race, gender, and political affiliation, impact how they decide cases. Mocan provides a host of possible solutions to judicial bias, and he also argues that this latter point might actually show the way forward: to the extent that judges’ attributes, experiences, and backgrounds impact their rulings, then diversity on the bench could very well improve outcomes for minority defendants. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 33 (#contradicts, via linked claim)

There are still other, even more subtle, complications in the analysis of judicial decisions that may confound the estimated impact of race, ethnicity, and gender on judicial outcomes. For example, assume that prosecutors are more aggressive inside the courtroom during trials involving minority defendants, and they are milder and more accommodating against White defendants. If this is the case, the conviction and sentencing decisions of a judge may resemble favoritism toward White defendants, but this would be misleading. The disparate outcomes would be reflection of prosecutors’ actions in the courtroom. This particular potential confounding can be controlled for by including in the model (Equation 1) indicator variables for individual prosecutors who were involved in each case (prosecutor fixed effects), although in most publicly available data sets such information about prosecutors is not recorded. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 739 (#complicates, via linked claim)

There are other important issues that complicate the investigation of judicial bias. First, there are many actors in the criminal justice system (CJS) other than judges, including prosecutors and defense attorneys, and the actions of these actors can impact the decisions of judges. Put differently, even if judges are completely unbiased with respect to race and gender, their decisions may resemble bias as an artifact of these other actors’ decisions and actions that took place before the case arrived at the docket of the judge. Furthermore, the decisions of these actors are interrelated. For example, if a particular judge is known to be racially biased against a particular group of defendants, defense attorneys may be more likely to plea bargain with prosecutors to avoid the case being adjudicated by the judge. In this scenario, the composition of the cases that are brought in front of this judge, as well as their case characteristics, would be different in comparison to counterfactual scenarios in which the judge was not racially unbiased. This type systematic “sorting” is produced by the defendant (or his/her defense attorney). Systematic sorting can also be generated by other non-judge actors. For example, prosecutors have substantial discretion regarding whether to press charges and what type of charges to press against a defendant. If this decision is racially biased, the case files that end up in front of judges will have gone through sorting based on the race or gender of the defendants. This would confound the analysis of judges’ decisions, if sorting is not adjusted for. … Research shows that defendants’ race and gender impact case outcomes, holding constant all factors that should matter for the adjudication of the case. This means, for example, that two otherwise identical defendants, charged for the same crime with the same mitigating and aggregating circumstances, face different probabilities of conviction and receive different sentences based on their race and gender. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 775 (#complicates, via linked claim)

Categorization

• XREF: connects to: Demographic representation is a third competing value in judicial selection — G. Alan Tarr, Judicial Process and Judicial…, 591; Unequal legal representation raises the risk of convicting the innocent. — G. Alan Tarr, Judicial Process and Judicial…, 722; Shared professional background produces judicial sympathy that outsiders cannot match. — , Harr Jonathan - A Civil Action , 1289 (+12 more)

Broader Connections

• Judicial race and gender affect case outcomes, making bench diversity a remedy for bias #contradicts (0.93) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 33
• Judge disparities may really reflect prosecutor behavior rather than judicial bias #complicates (0.78) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 739
• Observational judicial bias findings can be confounded by case sorting upstream of the judge #complicates (0.76) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 775