Deservingness and Punishment in Juvenile Justice: Do Black Youth Grow Up “Faster” in the Eyes of the Court?

The present study investigated whether race moderates the effect of age on juvenile court dispositions in ways that illuminate a subtler form of racial disparities than has been previously identified. Drawing on prior theory and research, we hypothesize that at young ages, virtually all youth are perceived as children and met with treatment-oriented responses. As youth grow older, however, we anticipate that Black defendants will be perceived as more culpable and more deserving of punishment than similarly-aged White defendants and that disposition patterns will reflect that differential perception. Using data from the Florida Department of Juvenile Justice ( N = 124,075), the present study examines a five-category disposition using a multinomial regression model with interactions between age and race variables. We found mixed support for the hypotheses. On the one hand, compared to similarly-aged White defendants, Black defendants became significantly less likely to be diverted—the most treatment-oriented disposition—and significantly more likely to be transferred—the most punitive disposition—as age increased. On the other hand, race did not moderate age effects for dismissal, probation, or commitment. There is thus some evidence that age may be racialized for some dispositions, but not others. Implications for research and policy are discussed.

Race and the Death Penalty

The relation of race and the death penalty has been a consistent issue in the United States in what is known as the “modern era” of capital punishment. The modern era is defined as being from 1972 to the present, following the Furman v. Georgia decision. Supreme Court cases examining race and the death penalty have considered the application of the death penalty. Issues and concerns have been brought up about whether using statistical evidence is appropriate to determine racial bias that can be used in court cases, the role of a mandatory death penalty, and concern over striking jurors from the jury pool due to race. A wealth of empirical evidence has been done in different areas of the country and has shown some evidence of bias or disparities based on various statistical analyses. One of the more common issues found is issues regarding the race of the defendant (i.e., Black defendant or Black male defendant), the race of the victim (i.e., White victim or White female victim), or interracial dyad (i.e., Black defendant and White victim) that impacts whether the death penalty is sought or imposed. Another concern is wrongful convictions and exonerations. The criminal justice system is not infallible, and this is no more so apparent when deciding to give a death sentence. Prior research has shown that Black defendants are more likely to be involved in cases later found to be wrongful convictions or exonerations. Due to the issue regarding race and the death penalty, two states Kentucky and North Carolina, have created Racial Justice Acts. The creation of these two acts is a good sign of efforts to deal with race and the death penalty. However, how its use and when shows that there is much more work is needed.

Measuring Racial Discrimination in Algorithms

Algorithmic decision-making can lead to discrimination against legally protected groups, but measuring such discrimination is often hampered by a fundamental selection challenge. We develop new quasi-experimental tools to overcome this challenge and measure algorithmic discrimination in pretrial bail decisions. We show that the selection challenge reduces to the challenge of measuring four moments, which can be estimated by extrapolating quasi-experimental variation across as-good-as-randomly assigned decision-makers. Estimates from New York City show that both a sophisticated machine learning algorithm and a simpler regression model discriminate against Black defendants even though defendant race and ethnicity are not included in the training data.

Race and Rape Prosecution in US History

This chapter examines the current disproportion of Black defendants wrongly convicted of sexual assault through a historical lens. It notes the US history of statutorily separate sexual assault penalties based on race of the defendant and victim. Throughout US history the legal definition and societal response to rape (and rape allegations) have been influenced by considerations of race. These considerations were consistently made to the detriment of Black defendants charged with rape. The chapter reviews how race, rape law, and prosecution have been manifested in different historical eras (the period of race-based enslavement, the period of Jim Crow segregation, and the current post–civil rights period) and the mechanisms of racial bias against Black defendants in the post–civil rights era.

“When We See Them”: Race as Conduit of Criminal Prosecution

Scholarly and lay literature pertaining to the criminal prosecution of black males are in contrast with white males. White male defendants are met by a system of judicial leniency. Conversely, the false convictions of the Central Park Five are met by judicial hostility. Considering the auspices of such hegemony, law enforcement, journalism, and the society at-large, are dominated by the concept of race as conduit of criminal prosecution. Evidence exists to substantiate race as implicit factor in guilt or innocence. Therefore, the solution to false convictions such as the Central Park Five must address race in the demonization of black defendants at every level. Moreover, “race” as a deceptive quantification of human category must be eliminated entirely from the treatise of criminal prosecution. “When they see us” will then be no more or less nefarious to the judicial process “than when we see them.”

Equal Protection Under Algorithms: A New Statistical and Legal Framework

In this Article, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and nonrace correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and nonrace correlates in predictive algorithms is both problematic and potentially unconstitutional under the Equal Protection Clause. This mainstream position is also reflected in practice, with all commonly used predictive algorithms excluding race and many excluding nonrace correlates such as employment and education. Next, we challenge the mainstream legal position that the use of a protected characteristic always violates the Equal Protection Clause. We develop a statistical framework that formalizes exactly how the direct and proxy effects of race can lead to algorithmic predictions that disadvantage minorities relative to nonminorities. While an overly formalistic solution requires exclusion of race and all potential nonrace correlates, we show that this type of algorithm is unlikely to work in practice because nearly all algorithmic inputs are correlated with race. We then show that there are two simple statistical solutions that can eliminate the direct and proxy effects of race, and which are implementable even when all inputs are correlated with race. We argue that our proposed algorithms uphold the principles of the equal protection doctrine because they ensure that individuals are not treated differently on the basis of membership in a protected class, in stark contrast to commonly used algorithms that unfairly disadvantage minorities despite the exclusion of race. We conclude by empirically testing our proposed algorithms in the context of the New York City pretrial system. We show that nearly all commonly used algorithms violate certain principles underlying the Equal Protection Clause by including variables that are correlated with race, generating substantial proxy effects that unfairly disadvantage Black individuals relative to white individuals. Both of our proposed algorithms substantially reduce the number of Black defendants detained compared to commonly used algorithms by eliminating these proxy effects. These findings suggest a fundamental rethinking of the equal protection doctrine as it applies to predictive algorithms and the folly of relying on commonly used algorithms.

Reframing Black Southerners’ Experiences in the Courts, 1865–1950

In civil cases that took place in southern courts from the end of the Civil War to the mid-twentieth century, black men and women frequently chose to bring litigation and then negotiated the white-dominated legal system to shape their cases and assert rights. In some ways, these civil cases were diametrically opposite from the criminal cases of black defendants who did not choose to enter a courtroom and often received unequal justice. However, this article draws on almost 2,000 cases involving black litigants in eight state supreme courts across the South between 1865 to 1950 to argue that in both civil and criminal cases African Americans were at times shaping their cases and fighting for their rights, as well as obtaining decisions that aligned with the interests of white elites. Southern state courts during the era of Jim Crow were thus spaces for negotiating for rights and sites of white domination, in both criminal and civil cases.

‘The Brixton Defence Campaign says boycott the Scarman Inquiry’

This chapter addresses various responses to the Brixton disturbances; the authorities and media focussed upon criminality and law and order aspects, leading to repeated calls for the police to be further equipped to respond – but, due to the scale of events, a public inquiry was established. Hence, this chapter discusses Lord Scarman’s inquiry through in-depth examination of recently-released inquiry records, such as police radio messages and witness statements, and papers of grassroots political organisations, to explore numerous accusations of police misconduct not included in his Report, addressing some of the gaps between submitted evidence and what was published as official record. Scarman chose not to examine such accusations, suggesting his inquiry could not provide necessary safeguards and that allegations should be directed through the police complaints system; however, this system had lost the faith of marginalised groups, who believed it was ineffective. Conversely, many local groups, such as the Brixton Defence Campaign established to support those arrested in relation to the disorder, vociferously boycotted the inquiry as they believed it would be a ‘whitewash’ and that any evidence provided would actually be used against black defendants.

Misdemeanor Disenfranchisement? The Demobilizing Effects of Brief Jail Spells on Potential Voters

This paper presents new causal estimates of incarceration’s effect on voting, using administrative data on criminal sentencing and voter turnout. I use the random case assignment process of a major county court system as a source of exogenous variation in the sentencing of misdemeanor cases. Focusing on misdemeanor defendants allows for generalization to a large population, as such cases are very common. Among first-time misdemeanor defendants, I find evidence that receiving a short jail sentence decreases voting in the next election by several percentage points. Results differ starkly by race. White defendants show no demobilization, while Black defendants show substantial turnout decreases due to jail time. Evidence from pre-arrest voter histories suggest that this difference could be due to racial differences in exposure to arrest. These results paint a picture of large-scale, racially-disparate voter demobilization in the wake of incarceration.

Judicial Politics and Sentencing Decisions

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar nonblacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion. (JEL D72, J15, J16, K41, K42)