The political affiliations of judges contribute to racial and gender federal sentencing disparities, according to a forthcoming study in the American Economic Journal: Economic Policy.
The study found that Republican-appointed judges sentence black defendants three months longer than they do for non-blacks, and female defendants two months less than males, who committed similar offenses, compared to Democratic-appointed judges.
The researchers by two Harvard Professors of Law, Alma Cohen and Crystal Yang, used data from 1999-2015, analyzing over 500,000 federal defendants, and 1,400 judges. They found these disparities account for 65 percent of the baseline racial sentence gap, and 17 percent of the baseline gender sentence gap.
“Our findings suggest that judicial politics may be a source of the persistent racial and gender disparities in the federal criminal justice system, and that politics may play an even larger role today under the current state of increased sentencing discretion,” the authors said.
The authors went on to note that since the federal justice system is the “source of the largest and fastest growing prison population,” the appointment of federal judges is a critical contributing factor in racial disparities.
The study quotes other researchers as saying, “Seldom has (judicial selection) seemed more acrimonious and dysfunctional than in recent years.”
Earlier research indicates that black defendants receive harsher sentencing than similar white offenders, the authors say, and that male defendants are given substantially higher sentences than similar female offenders.
Research cited by the authors also indicates that Republican-appointed judges give longer sentences for the same crime than Democratic-appointed judges. This study builds off these studies and applies it to racial and gender sentencing gaps.
Lower federal judge appointments have gotten more attention in recent years as a result of the increasingly polarized political climate.
Judges are confirmed unanimously less often now, and appointments are more fervently debated among senators on different sides of the political spectrum.
An important factor the researchers analyzed was the effect of a Supreme Court decision in 2005, United States v. Booker, which gave judges more discretion in sentencing. Before Booker, judges were mandated by the United States Sentencing Commission to use the Federal Sentencing Guidelines.
This mandate applied to all federal offenses committed after November 1, 1987. After Booker, the guidelines were ruled as advisory, as opposed to mandatory.
“Republican-appointed judges sentence black defendants to 4.7 months longer in prison relative to non-blacks compared to their Democratic counterparts in the post-Booker period, a doubling of the gap prior to Booker,” the study said.
Additionally, the gap increased post-Booker because Democratic-appointed judges reduced their sentencing for Black offenders compared to non-black offenders.
The researchers also found that the sentencing disparities were substantially larger for more severe crimes, and that, “the magnitudes of the gaps are twice as large among the more serious offenses.”
The study also found a number of other disparities in sentencing. Defendants who are non-U.S. citizens receive longer sentences than U.S. citizens, and defendants with more dependents receive longer sentences that defendants with fewer dependents.
Additionally, “Defendants who plead guilty and defendants with higher education receive lower sentences than their respective counterparts.”
The researchers also detail how prosecutors factor into sentencing disparities when it comes to charging and plea bargaining. They found that prosecutors can adapt their initial charges or plea bargain offers, based on their prior knowledge of the judge and his affiliations or propensities. This is called bargaining “in the shadow of the judge.”
The study also stated, “Prosecutors are significantly less likely to offer substantial assistance motions to black defendants relative to non-black defendants, while they are more likely to offer substantial assistance motions to female defendants relative to male defendants.”
The researchers note that while prosecutors do have a substantial effect, their data still indicates that judges play an important role in sentencing disparities.
This summary was prepared by Dane Stallone, a TCR news intern. Readers’ comments are welcome.