Racial disparity in federal criminal sentences

Using rich data linking federal cases from arrest through to sentencing, we find that initial case and defendant characteristics, including arrest offense and criminal history, can explain most of the large raw racial disparity in federal sentences, but significant gaps remain. Across the distribution, blacks receive sentences that are almost 10 percent longer than those of comparable whites arrested for the same crimes. Most of this disparity can be explained by prosecutors’ initial charging decisions, particularly the filing of charges carrying mandatory minimum sentences. Ceteris paribus, the odds of black arrestees facing such a charge are 1.75 times higher than those of white arrestees.

That is by M. Marit Rehavi and Sonja B. Starr in the 2014 Journal of Political Economy.  Via Andreas.


Cool. Now do gender disparity. The gaps are ten times as great.

Which way? In Australia wives who kill their husbands average longer sentences than vice versa.

In 2012 Sonja B. Starr from University of Michigan Law School found that "men receive 63% longer sentences on average than women do," and "[w]omen are…twice as likely to avoid incarceration if convicted", also based on data from US federal court cases.[9][10]

I should keep this in mind if I ever intend to commit a crime in the US.

Take down a statue or two. You’ll do no time!

Meh, I'd rather tape cardboard signs on them to them to fill in gaps in historical knowledge.

In Australia maybe we can cast some bronze clubs to attach to the heads of all the statues of Captain Cook. That's something everyone can enjoy, including Hawaiians.

Is there a sex difference in preference for stricter sentencing? It would be interesting to know if poetic justice or poetic injustice is operating here.

Which way? In Australia wives who kill their husbands average longer sentences than vice versa.

I bet they don't. At least not comparing like murders. And wives in the West, including Australia I am willing to bet, can allege domestic violence as an excuse and all but walk.

Looking it up, it appears that women who kill their husbands in the US also receive much longer sentences than vice versa.

I can tell you one major reason why this is the case in Australia, but I'll give you a chance to guess it, as it is kind of obvious if you think it through. Or at least it's one of those things that seem like it should have been obvious after someone tells you.

Wonder why the one exception to the general rule is the only disparity you'd heard of? And want to talk about now?

Is this a question for me? Despite the original Orange is the New Black being Australian:


Women aren't generally perceived as being particularly crime orientated here. When arrested it is usually just for the usual -- drugs, drunkeness, something sex-work related, theft, or fraud. I can't remember as single one dressing up in blacksmith made armor and shooting it out with mounted police.

Hey, look! A squirrel!

+1 and some.

No, it's not a distraction. Both devolve from the same rational.

Men are more likely to commit crime on average than women and the crimes are more severe and carry greater penalties.

This is similar in respect to black men vs white non-hispanic men in the US. Black men are more likely to commit crime on average than white non-hispanic men and the crimes are more severe and carry greater penalties.

If you are ignoring the basic data then you won't arrive at any valid solution.

Or from the abstract: "we find that initial case and defendant characteristics, including arrest offense and criminal history, can explain most of the large raw racial disparity in federal sentences,"

This is, to slightly go on a tangent, why I thought BLM would fizzle way before it does, (though rather it did fizzle, then ignited again this year).

Any honest account of the criminal justice discrepancies (in police use of force, imprisonment, anything) has to go something like:

"There's a 200-500% effect that's simply driven by real differences in underlying offending... then *maybe* a single or low double digit increased % effect that *maybe* is attributable for racial animus... but also could totally be due to some other driving factor that we haven't controlled for and can't, and we just don't know".

This does not, to me, seem to be the sort of thing that one builds vast cases around for literally abolishing the police (and https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html - "Yes, We Mean Literally Abolish the Police"; not a man of straw, not an obscure corner case figure here, the "Woke" really are what they say they are and mean what the say, no matter how hard some seem to find it to believe). And generally proposing to change almost every aspect of Western society, end capitalism and so on, in a sort of cultural revolution, with the claimed goal of "deconstructing structural racism". (Even leaving aside the corona risk associated to these protests, and the hypocrisy of the volte-face on that).

And yet here we are. Perhaps this is why the focus shifts so rapidly to random plans to rip down statues and ritualistic kneeling and other such cultural ephemera that's mainly about signalling dominance, the weakness of evidence base providing no justification for what is actually proposed.

It would be interesting to also account for the race of the prosecutors making the initial charging decisions to see if white prosecutors are more likely to recommend charging black defendants with more serious crimes than black prosecutors. The implication is naturally that some unseen bias is behind the disparity, but why would we draw that conclusion with such an incomplete set of facts? If two defendants have identical rap sheets and commit identical crimes, does that mean they are identical people, equally menacing, equally dangerous, deserving of identical sentences? Or should prosecutors afforded some discretion to decide if one is more dangerous than another? Does one show remorse while the other shows contempt for the judge? How many different scenarios can you imagine that would produce different sentences for the same crimes?

This also just occurred to me. How can you account for plea deals? If two defendants are charged with murder for driving the getaway car and one turns on the shooter to receive a manslaughter charge while one does not and receives the full homicide charge, wouldn't this be a situation where two defendants commit the same crime but receive different sentences?

Former federal prosecutor Ken White has written about the enormous power federal prosecutors have in making charging decisions, which in turn affect the sentence a defendant ultimately receives. I can't find the article just know but White described being a mid-20s freshly minted attorney working in DOJ and being asked by his superiors to make decisions that would add or reduce a defendant's prison time by years.

The effect of mandatory minimum sentences and sentencing guidelines has been mostly to transfer discretion from the judiciary to DOJ prosecutors.

Ricardo, you seem like a thoughtful person.

Do you know how enormous the power a criminal has when the criminal has the weapons and the victim doesn't?

Of course you never think about that much, do you? No, all you care about is how "young" some of the good guys are.

Like almost everyone around here, including the hosts, you don't think through the facts as much as you think you do. Trust me.

Tell me again about your agonized thoughts about the powers of prosecutors, but next time do it with some thought for the victims of the criminals.

and yes "Ken White" is a clueless nobody.

Don't ever quote people like him again if you expect people to respect your point of view.

if you think sentences are generally too lenient, say so

why do you condone sentencing differences not based on the crime? And why do you think DAs are best placed to make decisions pre-determining sentencing. Wouldn’t you agree that a separation between prosecution and judgement makes eminent sense?

and as a general aside, personal attacks do NOT make your comments more convincing

I think that most people do not understand how intensely evil violent crime is.

I am sure that the little Ken Whites of the world do not understand.

If that is a personal attack, so be it.

My comments are usually not convincing to people who do not think about what they are reading, and are usually convincing to people who do think about what they are reading. It is up to the reader.

Most judges, in our system, are elderly gents or ladies who do not understand what it is to be victimized.

Most crime victims are about thirty years younger than the judges in the criminal trials of their victimizers.

Trust me, the judges don't care as much as they should. I know lots of judges, they are an enervated group of old people with nice houses, not the best people to decide on what the effects of violence are on young people without nice houses.

So your point is that if you understand what it is like to be a victim, then it is OK to sentence black people to longer sentences for the same crimes. Got it.

This has a similar rationale to the worst hysterics of #metoo. Yes, crime is evil. No, we probably shouldn't hand out life sentences for a bar fight or petty mugging.

Bar fights maybe - they are often caused by two people behaving badly.

But for petty muggings, hell yes! People get killed in petty muggings. If you put my life at risk because you want the contents of my wallet I'm perfectly fine with you getting life in jail.

steve - stop lying.
it does you no good, and makes you look bad.

efim, you are usually the uplifting, positive Christian but here your more vindictive side shows. Rather than turn the other cheek as your Savior commands, you want to use the oppressive might of government to inflict more punishment. Never mind that Jesus broke bread with the thugs and losers of society and was crucified alongside them. You think Jesus didn't understand the sinful nature of man? In essence, this is white Christianity in America today. That is why black Christians who believe in the same God take a completely different view. Churches are no longer segregated today but in their hearts and souls they might as well be.

Lol black Christianity is a complete disaster morally and intellectually. Damn Jesus get me some pussy and a Range Rover.

My point was that short sentences for violent people are unjust to the victims, whatever race the victims are.

Almost all violent crimes are under-sentenced, most non-violent crimes are way over-sentenced.

Please look at the statistics regarding the race of the victims of violent crime to see a more useful race-based statistic than the statistic you accuse me of misusing. A black victim is significantly less likely to see the criminal who attacked them convicted and sentenced to a long prison term than a white victim is. That is a moral failure on the part of our society.

My guess is that most African-American judges would agree with me rather than you.
Unearned mercy to the guilty is often deep injustice to the innocent.

And to clarify, in case any junior prosecutors are reading this (not likely, they appear to be a busy group of people who don't have a lot of extra time to read comment sections)...

You are doing your job wrong if you are unconsciously overcharging or undercharging an individual defendant based on race or any other group characteristic. (and of course if you are doing that consciously, you should not be a lawyer, much less a prosecutor). You also are doing your job wrong if you think a colleague is doing that and you don't call them out on it (in this respect, I agree with the slogan "silence is violence").

Most people below the age of 40 or so do not have the life experience to understand that they unconsciously believe, even if just a little, in the morally wrong theory of "guilt by association."

And if you grew up in an area without a lot of violent crime, talk to some of your colleagues who did, about that specific subject.

I have never worked for a prosecutor team (they hire not only lawyers but also contract out for experienced accountants, researchers, and private investigators, by the way), but in my youth, when I was full of energy, I did volunteer at a public defender's office. If I had time to volunteer at a public defender's office today, I would do that. Despite the vast amount of talented people who go to law school, most public defenders are not up to the challenges they are faced with, and they need help.

"Do you know how enormous the power a criminal has when the criminal has the weapons and the victim doesn't?"

We are talking about the federal criminal justice system, which touches on fewer cases involving violent crime.

+1biglybucketful of harvard level sophistry
there are plenty of violent federal crimes and e.p.s reasoning is valid whether the violent crime is a federal or state crime

Mandatory minimum sentences? Muchly as part of the War on Drugs.

We have to destroy the village to save it.

So, I guess now we're left with the question of whether and to what degree the prosecutor's charges are racially motivated/biased.

It is fun to see crim research getting some attention!

This is a good study. To their credit, they were able to include some variables, like marital status and education, not commonly found in this kind of research. Still--like most research on disparities in CJ processing--they did not control for a lot of possible confounders. E.g., defendant socioeconomic status, demeanor/cooperation, suspected gang ties, or several other possible factors that might be correlated with race as well as outcomes. That is, omitted variable bias. This could explain the remaining racial disparity, even if mediated by the charging decision.

The authors point out that the mandatory minimum was only used for 11.4% of cases, and 16.4% of Black cases. So we are also dealing with a "rare" outcome. It seems plausible that the prosecutors were responding to some unmeasured characteristics (such as demeanor) that led to the charging decision. In another paper, Starr & Rehavi (2013), they refer to prosecutorial charging decision as the "black box." We don't know what all goes into it. (This paper looked at the effects of Booker on racial disparities; also check out Ulmer, Light, and Kramer (2011) on same question.)

This study

Regarding the "black box," I wonder why it's not required of prosecutor's to record a justification of their decisions (I assume it's not explicitly recorded). Too much work?

Speaking with a character in The Magnificent Seven: I admire your categorization of rare, mister. :-)

"Still--like most research on disparities in CJ processing--they did not control for a lot of possible confounders. E.g., defendant socioeconomic status, demeanor/cooperation, suspected gang ties, or several other possible factors that might be correlated with race as well as outcomes."

We are getting close to non-falsifiable land. Prosecutors are busy people and do not have time to study the biographies of every defendant they come across so it can only be subjective impressions of these factors that count. Then you somehow have to disentangle subjective impressions that are not influenced at all by race from those that are.

Plenty of antisemites at the local country club in decades past probably would have strenuously denied that they had any problem with Jews. They would have instead told you they simply prefer people of proper breeding. But when "proper breeding" circa 1920 is strongly correlated with "not being of Jewish ancestry," how do you disentangle these two?

Fair point about "rare", poor wording on my point. Let's say a "less common" event. In logistic regression coefficients are identified to a scale factor, so base rates matter.

Others have brought up plea bargaining. This is also likely part of the story. 90–95% of cases are pled out, and research suggests that Black defendants may be less willing to take a plea deal. Perhaps due to legal cynicism, which research also suggests is higher among Blacks. This could be due to experiences with racism, or due to beliefs that the system is biased against them (even with no first-hand experience). So it further complicates things. (The authors do not control for pleas, or attorney type.) Less research has looked at how initial charges change to disposition charges based on race and other factors. An interesting research agenda.

Also, keep in mind the generalizability problem. This paper looks at federal data, but 90% of prisoners are in state systems. The federal system, for one, has a lot more drug offenders. Federal data might look "worse" than state data. There is a bias in the race/sentencing literature toward federal data, despite it being a small portion of overall cases. This is because it is easier to access. Like the drunk man searching for his lost keys under the streetlight.

Another interesting part of this paper, which is consistent with this idea about model specification and omitted variable bias, is that they actually try to decompose how much disparity is due to legal variables using quantile regression. For example, at the median quantile (Q50), they start with no controls and find racial difference in sentence length at 72%. When they add offense characteristics, the unexplained difference reduces to 34%. Adding criminal history further reduces to 13 percent, and adding other controls (age, education, location) reduces to 9%. If they had included even more controls, this could have reduced even more, to the point where we have to say "Ok, we have explained the race effect."

To the authors' credit, they write "in the absence of experimental variation, it is still possible that the racial disparity we document is the result of an unobserved omitted factor that is correlated with race." They try to assess this with some imputations, but no sophisticated statistical techniques can improve the data!

Is proving racial bias in this way impossible (unfalsifiable, as one comment suggests)? Well, it shouldn't be easy. That is science. Meta-analysis is more useful than any single study, and a couple of these have looked at the race/sentencing literature (but they're at least 15 years old). My hunch is that race effects are often truly "class" effects, because socioeconomics are hardly every included in these models. When they are, it is crude proxies like "public defender," never a direct measure of someone's SES (or even more nuanced measures of their "class", i.e. cultural cognition).

My point above is:

1) Do busy prosecutors handling multiple cases actually have the time to accurately assess SES or class? Or do they simply use proxies? If they use proxies, those proxies should be perfectly adequate as controls.
2) Nuanced or highly subjective measures of status or class look like attempts to bring race in through the back door while maintaining plausible deniability.

Harry Reid notoriously said he was happy that Barack Obama did not have a "negro dialect" -- but that raises the question of why speaking with a bit of African-American vernacular is somehow "lower class" than speaking with its closely related cousin, the Southern drawl. Something shady is going on there.

Right, but the proxies would be things we also do not measure. When I say we use proxies, I mean things that are actually measured, like "type of attorney." The problem with non-experimental research is that we can never know if we have controlled for all relevant factors (i.e., fully specified model). Maybe this is impossible. It still wouldn't be unfalsifiable, just impractical.

I don't mean to suggest that prosecutors are explicitly taking SES into account. Prosecutors are probably most influenced by subtle "signals" like behavior/demeanor, etc. Something like: "this defendant does not seem remorseful/respectful/etc." Or maybe even: "this guy is a prick." None of this means there isn't possibly a racialized element to these perceptions. Hard to say. It has become so socially unacceptable to be racist, however, that it seems implausible to think police/prosecutors/judges are still operating based on overt biases. What about covert biases? More plausible. But implicit bias research is also deeply flawed, so we just don't know about that either. Class and race are likely so tangled up that it is close to impossible to decompose.

Your point about Reid is well taken. I still think there is a lot of residual racism in society, casual racism. I just think one of the places it is probably least likely to show up is official decisions of people who are hyper-aware of racial disparities and the current political climate. But then maybe it is a function of how much discretion you have, how much your decisions are being tracked. On this theory, we would more likely find bias among prosecutors than judges, and more likely to find bias among police than prosecutors.

The southern drawl is absolutely treated as a proxy for lower intelligence and lower class status.

As an amusing anecdote, it is a stone-cold lock that anytime anyone turned up on Law and Order with a southern accent, that person was the murderer.

I've had a number of colleagues over the years who blackballed applicants because of the drawl. In some cases it was taken as a sign of lower intelligence, in others there the assumption that the applicant was racist or would be a liability risk.

Cool. Now do socioeconomic disparity. The rich-poor gaps are ten times as great. Sometimes the rich don't serve any time at all . . .

Poor white lives don't matter.

"rich-poor gaps are ten times as great"
we bet you confabulated that statistic

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

—Frank Wilhoit

98% of those that are in jail for murder are men. It is systemic misandry. There can be no other explanation.

When you look at sentencing using public versus private defender, the racial disparities go away. That is, if you use a public defender, you'll be encouraged to take a plea bargain. if you use a private attorney and you have money, they will happily help you fight this. Black or white. And you'll get a much better outcome.

The big city democratic DAs are the reason here. They overcharge, and force you to take a plea bargain, otherwise you risk being sent away forever.

The big city DA's are all democrats. This is how they treat black people. A hundred years ago Woodrow Wilson previewed Birth of a Nation in the white house. He is the father of the modern progressive movement. He re-segregated the US government. A just 4 years later, the KKK held so much power at the democratic convention that it was called a Klan Bake. Wilson also dabbled in eugenics. Read up on his views of eugenics and black folks. In that time, the dems views on black folks haven't change.

Kamala Harris loved to put people in jail for pot and openly bragged about it. Yet she laughed coyly when asked about her own use. And Joe Biden and Bill and Hillary...they things they said and voted for over the last 30 years. Hillary liked to use to the term "superpredators" to describe young black men.

Know your history. The dems have been doing this to black people for hundreds of years.

No, they haven't. Do your research.

I have, and that's why I cited examples. I could continue with more, or you could provide a counter. Which I will handily dismantle too.

I’m happy to entertain the question of whether Democratic prosecutors are just as harsh or harsher on black defendants. But I get really confused when people somehow think the past racists of the Democratic Party have something to say about the policy preferences of the current party? So are current Democrats also still part of the free silver movement in your mind? It turns out that parties are minimum winning coalitions that change a lot over time for idiosyncratic reasons.

> past racists of the Democratic Party have something to say about the policy preferences of the current party

But what makes you think they've gone away? When do you think they left? We're 50 years and $20T into LBJ's "great society" and that entire time the residents of big cities--which have largely blue-run forever--are no better off than their family members of the early 1970s. Subsidized housing in all these places is dangerous, dirty, moldy, heat/AC not working, broken elevators, crimes, bad schools, drugs, you name it.

These cities have the money. They have all spent zillions on green. But 3+ generations stuck in poverty in ATL, NYC, Chicago and on and on. How does this happen unless the democrats want it to keep happening?

How can it be that black children from Alaska and Utah have far better life outcomes than black children from ATL?

Some have argued cities are modern plantations--I used to think this was nuts.

>When you look at sentencing using public versus private defender, the racial disparities go away.

Sure, but you don't get a link from MR for publicizing this.

"When you look at sentencing using public versus private defender, the racial disparities go away. That is, if you use a public defender, you'll be encouraged to take a plea bargain. if you use a private attorney and you have money, they will happily help you fight this. Black or white. And you'll get a much better outcome."

I'm sure the second part of this is true. But the summary above says that the differences in sentencing outcomes are mostly due to initial charging decisions and, in particular, the decision to charge crimes that carry mandatory minimum sentences. If prosecutors wanted to pursue equal justice for all, we should see them if anything more willing to hit defendants who can afford fancy private attorneys with serious charges up front. That way, you are more likely to get them to the bargaining table and less likely to have to endure the humiliation of a loss at trial. If you bring less serious charges to start, of course a well-off defendant is going to be more willing to fight because there is less to lose.

> decision to charge crimes that carry mandatory minimum sentences

But mandatory minimums are colorblind. So we can take that out.

A DA would prefer to NOT go to court (expensive for the state) and take you off the street via a plea. If they know you have deep pockets, of course your outcome will be different. The tables are turned because the defendant could put up a $250K defense that will take $500K to prosecute. The state of CA was estimated to have spent $9M on the OJ trial. Simpson spent about $5M on his defense.

A solution I've read that is a good way to keep DAs honest is to ensure the jury knows at sentencing what the plea was.

So, if the DA offers a plea that is 2 years, and if you don't take they promise to send you away for 20 years, then the jury needs to know this. Because in the sentencing a jury must know that the DA was originally willing to put you away for just 2 years, which means the 20 years they were seeking was BS.

In other words, maybe a limit at trial where your actual time can not exceed a plea by more than 50%.

Interesting paper. Suppose the results are accurate. To my mind it is an argument against current left-wing thinking on racism. For one thing, it shows that part of white-black disparities can be explained by non-racist factors. For another, left-wing thinking would suggest racism should permeate all parts of the process. To suggest that racism has its effect mostly on one part of the process, and does not affect most defendants at all, is not what listening to the current debate would suggest.

Well, reality is an argument against current left-wing thinking on pretty much everything.

What's the effect size after parole? That could exaggerate things, flip things or simply cancel it out.

"Comparable crimes" also seems like a bit of a potential risk here. Are prosecutors really choosing different charges for same crimes, or is paper using overbroad bucketing of different crimes under broad headers like "violent", "drug", "property" and then expecting same outcomes?

Pretty much no parole in US federal system nowadays.

Huh. That surprises me. Almost seems like an important thing for Alex and Tyler to talk about...?

The Obama Administration reported in 2011 that blacks had been 7.6 times more like than whites to have been homicide offenders over the 29 years from 1980 to 2008:


Having worked in a D.A.'s office, and having close knowledge of plea bargaining etc.: there are definitely cultural differences in groups on how to deal with being arrested for a crime when one is, indeed, guilty. I went to law school sure I would find innocent defendants being prosecuted, and was sorely disappointed at the clear guilt of almost all criminals. However, there were enormous cultural differences in approaches to how to plead a case. Not by "us", the D.A.'s, and not by the Public Defenders, but by the criminals. It was these differences that lead to less fortunate outcomes for certain obviously-featured groups.

Can you elaborate on the pleading differences that lead to less fortunate outcomes, please? I have zero experience with that type of stuff.


Virtually all criminal cases are decided by plea bargaining. This has enormous polluting effects on crime data, since a prosecutor may (over)charge a defendant with all kinds of overlapping and redundant charges, the stiffest available, adding up to 100 years in jail, and then the bargaining commences. If the actual crime was, say, rape, and the prosecutor can add all kinds of stuff to that to get a really long sentence, the defendant can maybe bargain it down to a collection of charges (sexual assault, lewd conduct, trespassing, whatever) whose sentence in years is equal to rape, but which is not rape, get his convicition, and save everyone’s time. So everyone knows that a rape happened, but the crime stats don’t include this particular rape. Multiplied by the 95 percent of cases that are plead down, and crime statistics are nonsense.

I think a defense attorney will tell his client, “Hey, these charges are ridiculously over the top. I can make a good legal case to get half of them thrown out or reduced if we take it to trial. But ... juries are crazy these days, unpredictable. If you get the book thrown at you, you’re in for life. They’re offering 10 years. Your choice.” The white guy may tend to say, “I’m innocent, but I’ll take the plea under those circumstances.” The black guy may think he can beat it in court ... and then ends up with life. Jay Franks may be able to speak to this, but evidence that black defendants may be more ... belligerent ... may be seen in all the resisting-arrest videos for blacks being arrested (and sometimes killed) that we see (perhaps some selection bias there). Perhaps white guys just get cuffed, get booked, and then file complaints later rather than think they can intimidate a cop into not arresting them.

But the summary claims, "Most of this disparity can be explained by prosecutors’ initial charging decisions, particularly the filing of charges carrying mandatory minimum sentences." The initial charging decision, by definition, must come before plea negotiations start so it's not clear how supposedly different attitudes toward plea negotiation can be responsible. Sure, maybe prosecutors think in the back of their minds, "Black people are less likely to take a plea. So let's hit them with everything we've got right out of the gate and then negotiate down from there by agreeing to drop the most serious charges." But that's clearly discriminatory and, according the above post, still results in higher sentences for black defendants.

"Thee initial charging decision, by definition, must come before FORMAL plea negotiations start."

I have seen plea negotiations started, by the prisoner, before the DA is even aware that a case exists. Criminals can, and do, start trying to make deals with the cops ("Hey if I get X charge I will testify to Y"). This sort of informal affair means that any formal metric is never going to capture all the differences in behavior in pleas.

And it need not be "Black people" that are less likely to take a plea. It could be something like "gang members" or "poor people". And certainly that is my experience. Poor whites do not walk. Rich blacks do. If I went out and committed a felony the most important color would be green.

A good lawyer with a large defense budget can find all kinds of reasons to toss an honest case that should result in conviction. Cops fail to follow some obscure legal requirement? Toss the evidence then poison tree even more. Some random precedent buried in the bowels of the system allows for a time consuming procedure that runs through DA money? Offer a better plea.

In my experience, America is a vastly more classist society (where money and education trump all) than it is racist. Have I met racists? Of course. And they typically give me excellent service or are minimally employed bums. Have I met people who will give poor people flak merely for existing? Of course. I have far, far too many times watched how adding "Dr." to my name suddenly changes the tenor and manner of people with whom I interact. And that happens over the phone where my skin color is moot.

And this is why we need to quantify racism. After all, even if 100% of the disparate outcome was driven by racism it might be a good thing to know if 90% of it lay with cops or the DA. It might be nice to know if it was due to more police in black neighborhoods or if it was due to some neural net program that learned a shortcut based on previous criminals.

Certainly medicine has its own examples. People of African descent (regardless of skin color) are much more likely to have adverse outcomes when receiving psychiatric care. We could just chalk this up to psychiatrists being racists, but when we do some digging we find that atypical antipsychotics are much more likely to have adverse metabolic effects in people of African descent (I think they even mapped it out to some gene locus). Just saying that something is "racist" would have us spending millions on dubious educational interventions to make psychiatrists get better at doing exactly what is causing the problem - using the same treatment algorithm when race needs for there to be differences. Maybe you might argue that drug design is the ur-racist problem here. Fair enough, but then we should be spending money on getting drug companies to go after drugs with side effect profiles that are better understood with regards to racial variations and not making psych residents sit through yet another seminar.

If there is pervasive, systemic racism that it is even more important to measure it and target our resources well. Spending money on the cops when the DA is the big problem or spending money on the DA when the judges are the problem is just not effective.

For any public health crisis, from Covid to vaccine denial to car crashes, the important thing is look at your Number Needed to Treat for any intervention and pick the lowest ones. That means measuring pervasiveness and strength of the problem as well as effectiveness for response.

If "arresting offence" isn't independent of race (and surely it is not completely so) then this study already shows less than expected. That is already going to be feeding in to the "prior history" bit, but won't be the only thing, as it is well established that lots of "minor" crimes, like simple drug possession, are enforced much more strongly against blacks than whites. So, this, too, isn't independent of race, and can't be seperated out as independently explanatory as is suggested here.

"Drug possession" is a way to convict drug dealers who might murder witnesses against them under the doctrine of Snitches Get Stitches. Jill Leovy, the enterprising Los Angeles Times murder reporter estimated that a dozen witnesses were murdered per year in South Central L.A.

But gangs can't murder crime lab chemists so their members get sent to jail on physical evidence of drug possession sometimes when they deserve to go to prison for murder or assault and battery.

Libraries and archives may be full of research papers and studies of how the criminal system has been working for the past 250 years. Today we can take one piece from them and argue whatever we want to argue. But if we are going to do that, let us try to be serious and at least read the paper and pay attention to what it says and what it doesn't say. Unfortunately, our impressions about how the criminal system works are based more on fiction created to entertain with the underlying drama of each case than on the details of serious research of particular cases.

I don't have time to read the referred paper today, but just reading the abstract in Tyler's post (*), I hope the abstract is a poor summary of what the researchers have done.

(*) I find Tyler's strategy of throwing abstracts to readers a good one to have fun by sharing emotional reactions but not an incentive to read the paper.

Do you remember how into the 1980s at least researcher would end their papers with long lists of potential problems or shortcomings with their paper, the data it was based on, suggestions for future research, and the like? This paper is a great example why that practice should be revived.

Researchers are too silo’d off now, not to mention they tend to be advocates in addition to researchers.


Nobody wants to study something for 3 years and write a paper that says "My initial thesis was invalidated, and I found that sentencing disparity can be 100% explained by the socioeconomic factors, including education and having the means to mount a private defense"

Because that is to admit you wasted 3 years of your life. So, you find a hook and ride that hard, and do your best to make as much hay as possible from whatever angle possible. You don't lie in your data, but you do definitely push the glass-half-full instead of glass-half-empty.

The result is the research space is polluted with half-truths all aiming to drive a political narrative.

This is what happened with climate change research. Out of 100% predictions, 99% of them way over-estimated the actual outcomes. Which clearly points to bias among researchers.

There's a little sleight of hand in the comments about plea bargaining, in particular the comment that it's not prosecutorial discretion that results in longer sentences for black defendants but the lesser skills of black defendants at plea bargaining due to cultural differences. I say sleight of hand because it omits the charging discretion of both law enforcement and prosecutors: if blacks are systematically charged a higher crime, they will receive longer sentences. I've commented before about mandatory minimum sentences (MMS). The discretion to charge a defendant with a crime that is subject to a MMS is a powerful tool, a tool that I suspect is used discriminately.

> a tool that I suspect is used discriminately.

But that avenue is only open to the prosecutor if the defendant doesn't have the means to mount a reasonable defense. Thus, if you took a random black kid in the system that was on the cusp of deciding to take a plea or not, and suddenly gave him a legal dream team for defense, then his outcome would be dramatically different. The DA would be panicked at the though of defending the trumped-up charges, and would immediately reduce them.

It's not a color issue--it's an economic issue.

Most everything we see today is 100% an economic issue masquerading as a race issue.

I agree that the two are intertwined—socioeconomic and race issues—but I disagree that one is a masquerade for the other. We’ve had systems in place for a good three hundred fifty years before the significant policy changes of the 1960’s that purposely kept blacks poorer on average. To say race issues are just socioeconomic ones ignores that completely

The US has shown over and over that immigrants can arrive poor and without knowing the language, and in a single generation the kids are in the top 10%. That happens for immigrants from black and asian countries all the time.

The notion of generational wealth being needed to succeed in the US is absurd. And few families maintain wealth any more. One generation hits it big, subsequent generations are a mess.

Generational wealth is NOT a requirement to do OK in this country at all. And it's not the reason so many are failing. Yes, if you got it, your chances are a little better. But not much. Ivy league schools stopped letting slackers in with wealthy parents a long, long time ago.

" the lesser skills of black defendants at plea bargaining due to cultural differences."
+1 lawyerly sophistry
shouldn't that be the "lesser skills" of defense lawyers {not defendants} at plea bargaining.

Someone in a law school perpetrating research that might prove illuminating to the layman? Is this common?

By the way, I've found some of the comments here illuminating too. Thanks.

To be honest I am moving beyond being willing to be swayed by the evidence. I am not there yet but academic research is so bad there is no reason I can see to believe it.

But even if what it says is true, even if every word of it is accurate, sentencing still looks at the future possibility of re-offending. And if faced with the sort of defendants who are much more likely to re-offend, then prosecutors will push for tough sentences.

I would suggest that the sort of defendants who are much more likely to re-offend are also much more likely to be Black.

I doubt they can consider every factor at work here. But I would suggest given Blacks offend so much, they clearly are not being deterred which suggests they are not being arrested at a higher rate much less convicted at one.

The answer is well known in the entire justice system. Judges are chartered with four sentencing responsibilities: 1) restitution, 2) punishment, 3) prevention, 4) disincentive to others. The reason for black sentencing differences is behavior in court: a) disrespect of the court, b) failure to take responsibility for actions, c) likelihood of recidivism. Any midwit can sit in court for a few hours every morning, one or two days a week for three months and the pattern is obvious: show up, show respect for the court, accept responsibility before the court, explain how you will change your future behavior, and you get a reduced sentence from the court. It's not complicated. Everything that happens in courtrooms makes tediously boring common sense.

Given the rather huge incentive to get the reduced sentence, do you have an explanation for the behavior in court?

Good thing scientist aren’t studying the racial disparity in the dicks that go in my butthole. I’ll blow a black dude but my butthole is whites only.

Not the rayward readers of this blog love.

I would like to see some research in Straight-Gay comparisons for criminal convictions. There might be some anti straight bias in law enforcement.

I instantly stop reading once I hit bait and switch as with this. The title was "Racial disparity" yet I see no comparison of Japanese to Blacks. When "race" is used an a euphemism for "black/white" I simply lose interest as the authors biases are so blatant at that point why bother wasting my time with the rest as it's just another "I hate whitey" puff piece.

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