Observational judicial bias findings can be confounded by case sorting upstream of the judge

Evidence

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

Categorization

• DEEPTHINKING: The sorting-composition insight is a genuinely hard methodological problem: an unbiased judge’s docket is shaped by what biased actors downstream and upstream chose to route to them, so even a clean judge produces ‘racially biased’ outcomes whose causal locus lies elsewhere.
• XREF: Connects to systemic-mechanism accounts of structural racism where individual bias is unnecessary for discriminatory outcomes, and to sampling-bias logic in Milgrom-style institution analysis. — connects to: Rotating opinion assignment makes assigned judges unusually influential on appellate panels — G. Alan Tarr, Judicial Process and Judicial…, 1597
• corroborated: 2 independent passages support this claim — Joseph Avery, Jim Sidanius, Joel Cooper, Gregory Davis, Amanda N., Bias in the Law: A Definitive Look at…, 775