Judge behavior can falsely appear biased when prosecutors treat defendants unequally.

Evidence

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 (#expands, via linked claim)

The criminal justice process is lengthy, and it is multilayered. There are a number of key actors—prosecutors, criminal defense attorneys, among others—of which judges are just one. The ultimate decisions made by judges embody the decisions made by these other actors before the case has arrived in front of the judge. This realization poses a challenge to the investigation of judicial bias because it is important to filter out various confounding factors to pinpoint the sources of any potential bias, if it exists, and to design effective public policy to eliminate the bias. Thus, an overarching examination of judicial bias would investigate the actions/decisions of each actor in the judicial system separately, while accounting for the fact that one actor’s decision may impact the decision of another actor, and that these decisions may be interdependent. For example, judges’ decisions may reveal racial bias even when judges themselves are racially unbiased, if it is the case that prosecutors show bias. Alternatively, racially unbiased prosecutors may adjust their behavior in how they handle cases based on the race of the defendant if they recognize that judges are racially biased. Thus, analyses of judicial decision-making need to be statistically sophisticated to account for observable and unobservable factors that determine the judicial decisions under investigation. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 729 (#corroborates, 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. — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 775 (#expands, via linked claim)

Categorization

• XREF: connects to: Judge attractiveness bias measurably reduces real-world fines and bail amounts — Anthony G. Greenwald and Mahzarin R. Banaji, Implicit Social Cognition: Attitudes,…, 92; Jury trial safeguards defendants against corrupt prosecutors and biased judges — G. Alan Tarr, Judicial Process and Judicial…, 1292; Apparent judicial racial bias can stem from prosecutors’ bias, not judges’ own. (+5 more)

Broader Connections

• Judge disparities may really reflect prosecutor behavior rather than judicial bias #expands (0.97) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 739
• Judges’ case outcomes can show racial bias even when judges themselves are unbiased #corroborates (0.94) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 729
• Unbiased judges can appear biased because other actors sort cases beforehand #expands (0.93) — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law, 775