Judges On Race: The Power Of Discretion In Criminal Justice

By Judge Juan Villaseñor and Laurel Quinto | January 10, 2021, 8:02 PM EST

On the heels of nationwide calls to address systemic racism and inequality, sitting judges shed light on the disparities that exist in the justice system and how to guard against bias in this series of Law360 guest articles.


Judge Juan Villaseñor

Laurel Quinto

Racial disparities exist in the criminal justice system. We believe that such a statement is an uncontroversial proposition.

The U.S. now imprisons a greater percentage of its population than any other country in the world.[1] And minorities — African Americans and Latinos in particular — are disproportionately represented among those inmates.

While African Americans and Latinos respectively make up 13% and 18% of the U.S. population,[2] they represent over 30% and 22% of those imprisoned, respectively.[3]

One might think that the judiciary is principally responsible for those numbers. But, by the time an individual who's prosecuted reaches the courts, he's passed through many points in the criminal justice system where he's likely to experience disparate treatment.

The criminal justice system — law enforcement and prosecutors, in particular — possess wide discretion in their respective areas of decision making before a defendant reaches the courthouse or a judge makes decisions. These decision-making areas include enforcement priorities, arrest, charging decisions, plea offers and sentencing recommendations.

Sometimes, that necessary and built-in discretion leads to disparate treatment of those arrested, charged and prosecuted. That's not to say that law enforcement and prosecutors don't properly investigate and prosecute individuals who have broken the law and harmed society. Their tireless and extremely hard work occurs every day in every courtroom in the U.S.

We believe their work is necessary for the proper functioning of society. Our point is that, despite their excellent work, evidence suggests that racial disparities exist in how individuals are investigated, arrested and prosecuted. And those disparities harm the fair administration of justice to the detriment of society.

Through this article, we examine several of those points in that journey through the criminal justice system. While an individual may experience prejudice along the way to his or her prosecution, conviction and eventual sentencing, judicial officers play a critical role in the process.

While judges don't control what happens before a case is filed, judicial officers should ensure the fair and bias-free treatment of all litigants. We discuss several of those practices below.

Often, an individual's initial point of entry into the criminal justice system starts with a police encounter. That may be a traffic stop for a moving violation, or some other contact with law enforcement.

However, stops between white individuals and people of color are not all conducted equally. A police officer enjoys wide discretion in deciding whether to begin an encounter with an individual who may eventually become a suspect, and research strongly suggests that racial disparities exist in the exercise of such discretion.[4]

Let's take traffic stops as an example. According to a 2013 U.S. Bureau of Justice Statistics survey of a representative sample of the U.S. population, African Americans were more likely than whites or Latinos to have experienced a traffic stop in the previous year.[5]

According to respondents of the study, the police were more likely to stop white drivers than African American drivers for speeding violations — a violation for which there's an objective standard. But, officers were more likely to stop African American drivers than white drivers to check their records — a more discretion-based stop.

The police were almost twice as likely to provide no reason to African American drivers than white drivers for the stop, according to the study.[6]

Findings from archival analyses mirror the survey data. For example, in North Carolina, which has collected data on traffic stops since 1999, African American drivers experience overall higher odds of being stopped by police than white or Latino drivers.[7] Despite the higher odds of appearing in a traffic stop, African American drivers make up a much smaller percentage of the overall respective populations.

Another 2017 study that analyzed traffic stops in Connecticut revealed that disproportionate stops of African American and Hispanic drivers was more likely to occur during the daylight than in the twilight hours, suggesting that officers' biases were more likely to affect their actions when they could better discern the race or ethnicity of the drivers.[8]

Lastly, a compilation of traffic-stop data from 20 states during 2011 through 2015 showed that racial disparities in police stops aren't confined to a few localities. In this national sample, police officers stopped African American drivers more disproportionately than white drivers relative to their representation in the population.[9] The potential for unconscious — or conscious — bias encroaching into the exercise of police discretion extends beyond traffic stops.

Another example of police discretion is street stops by law enforcement.

A police officer may stop an individual if he has reasonable suspicion that she's about to commit a crime or has been involved in criminal activity.[10] Given the dangerous nature of a police officer's job, reasonable suspicion encompasses wide discretion; at the same time, it may afford the officer an opportunity to act upon her unconscious or conscious biases, which may inevitably influence whether a person encounters the criminal justice system.[11]

Interestingly, while nonwhites are more likely to be searched, whites are more likely to be in possession of contraband when searched.[12] That data suggest that a police officer may be more generous in reaching the "reasonable suspicion" threshold — meaning that a white person generally must exhibit a higher level of suspicious activity than a person of color before attracting an encounter with law enforcement.

Thus, while police discretion is essential, considering the potential for disparate treatment in the exercise of that discretion based on relevant and reliable data may be one tool judges can use to acknowledge and address racial bias in the criminal justice system.

If arrested, a person encounters the second level of discretion in the journey along the criminal justice system.

One would expect that if two individuals commit the same crime, they'd both be arrested and prosecuted in parity with each other. But research suggests the opposite: people of different races aren't arrested at the same rate despite committing the same offense.[13]

In 2017, for example, African Americans were eight times more likely to be arrested for marijuana possession in New York City than were white offenders.[14] This racial disparity in arrests was even greater in upstate New York. Likewise, Latinos were five times more likely to be arrested for marijuana possession in New York City than were whites.[15]

However, rates of drug offending, nondrug offending, or residence in neighborhoods in which the police focus on drug offending didn't explain racial disparities in arrests for drug-related offenses.[16]

Disparities in who ends up being arrested for petty drug offenses is just one example of how offenders of different races aren't always arrested at the same rate for the same crime. And while data collection on this point is difficult given numerous uncontrolled socioeconomic and societal factors, the overarching theme within the research suggests that a person of color is more likely to have an initial encounter with law enforcement, and that encounter is more likely to result in arrest.

Although racial disparities in arrests account for between 70% to 75% of the racial disparities in incarceration,[17] charging decisions made by prosecutors, plea negotiations and sentencing recommendations also contribute to the differential incarceration of people of color in comparison to white offenders. And that brings us to the third point along the journey, and perhaps one of the most consequential: the decision that a prosecutor makes regarding the charges she'll pursue against a defendant.

A prosecutor possesses immense discretion in making charging decisions. As the U.S. Supreme Court noted in its 1978 decision in Bordenkircher v. Hayes, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute and what charge to bring before a grand jury, generally rests entirely in his discretion."[18]

That discretion rests on many factors, like "the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan," and this discretion isn't readily susceptible to the kind of analysis courts are competent to undertake, according to the Supreme Court's 1985 decision in Wayte v. U.S.[19]

In the case of charging, disparate treatment usually begins when offenders are youths, with prosecutors more likely to charge Black than white juveniles as adults under some circumstances, eliminating rehabilitation-based treatment offered in the juvenile justice system.[20] The category and severity of charges brought influences everything from a defendant's decision to plead guilty or go to trial, the starting point for plea negotiations, and the eventual sentencing guidelines.

Another crucial area in which prosecutors enjoy wide discretion is at the plea-negotiation stage. While about 94% to 97% of criminal cases resulting in convictions are resolved through plea bargaining, there has been relatively little research around the potential racial disparities in plea offers.[21] What little research exists suggests that minority defendants are at a relative disadvantage in plea offers.[22]

For example, at arraignments for misdemeanors in Manhattan, white defendants are more likely than African American defendants to be offered pleas that involve community service, a fine or time served. By contrast, African American defendants are more likely than their white counterparts to be offered pleas that involved jail or prison time.[23]

In addition, the probability of a charge reduction for those that pled guilty is less for African American defendants than it is for white defendants.[24] The concerning nature of this data is compounded by the fact that most plea negotiations are conducted behind closed doors, and judges have a limited ability to probe into the specifics of why certain offers were made and accepted.

Unlike the data on plea negotiations, most of the research addressing racial disparities in post-arrest outcomes has focused on disparities in sentencing. This research demonstrates that Black and Latino defendants tend to receive harsher sentences than white defendants, even after controlling for legally relevant factors that should influence sentencing decisions.[25]

African American adults are also likely to receive more punitive, longer sentences than white adults, in part because prosecutors are more likely to charge African American defendants than white defendants with crimes carrying mandatory minimum sentences.[26]

Further, racial disparities in sentencing were evident even with juvenile offenders, where Black youths tended to be placed in discipline-based programs focusing on physical activity while white juveniles were placed in therapeutic programs.[27]

But prosecutorial and judicial discretion in sentencing is not unfettered. For example, the statute governing federal sentencing details an extensive list of factors to be considered in imposing a sentence. Most relevant, a court must consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.[28]

In other words, sentences for the same crime should be similar. Consciously attempting to avoid unwarranted sentence disparities among similarly situated defendants, regardless of race, is another tool judicial officers may utilize in sentencing nonwhite defendants in parity with white defendants.

Overall, racial disparities throughout case processing results in significant disadvantages to minority group members interacting with the criminal justice system, with a 26% increased risk of incarceration for Black and Hispanic felony defendants than for while felony defendants.[29]

So, what can judges do in order to combat this obvious disparity in the administration of justice?

While there's no silver bullet, by equipping herself with relevant data on potential points of disparate treatment along the criminal justice system, a judge may better address each defendant's situation with a holistic approach. Such a holistic and informed approach may lead to more effective controls for racial biases, from the initial stop and what charges are brought to what plea offers and sentencing recommendations are presented to the court.

Unconscious-bias training is another tool available to judges, attorneys and law enforcement to combat disparate treatment. A 2009 study of 143 judges from different jurisdictions found that judges, like anyone else, have implicit biases but that "when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, and are motivated to suppress that bias, they appear able to do so."[30]

Other training that brings to light disparate treatment that attorneys have experienced is not only helpful but enlightening.

For example, the Colorado Judicial Branch recently conducted presentations for judges, by judges and attorneys of color who highlighted their experiences of bias and treatment in the courtroom. Such presentations, like implicit-bias training, ensure that a judge becomes aware of her biases and that they be in check while presiding over cases.

The criminal justice system journey isn't a series of isolated and independent events. Instead, each point along the journey likely influences an individual's fate down the line.

While law enforcement and prosecutors work tirelessly to bring people to justice, racial bias in the criminal justice system lessens the trust that society places in those officers' extremely important work. Ensuring that everyone is treated fairly only enhances faith in our system of justice, which is one of the best in the world.



Juan G. Villaseñor is a judge on Colorado's Eighth Judicial District Court. 

Laurel Quinto is law clerk to Judge Villaseñor.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.


The opinions expressed are those of the authors and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

[1] Kovera, Margaret Bull, Racial disparities in the criminal justice system: Prevalence, causes, and a search for solutions, Journal of Social Issues 75.4 (2019), 1139-1164, 1140.

[2] U.S. Census Bureau, 2019.

[3] Bronson, Jennifer, and E. Ann Carson, Prisoners in 2017, Age 500 (2019): 400.

[4] Kovera, Journal of Social Issues 75.4 (2019), 1139-1164, 1144.

[5] Id. (citing generally Langton, Lynn & Durose, Matthew, Police Behavior during traffic and Street Stops, 2011, U.S. Department of Justice: Office of Programs, Bureau of Justice Statistics (published 2013)).

[6] Id. (citing Langton 7 Durose, 4–10). It should be noted that any survey data may be affected by biased responding, so it's important to examine archival data for racial bias.

[7] Kovera, Journal of Social Issues 75.4 (2019), 1139-1164, 1144 (citing Baumgartner, Frank R. et al., Suspect citizens: What 20 million Traffic Stops Tell Us About Policing and Race, Cambridge Univ. Press (2018)).

[8] Id. (citing Ross, M. B., et al. State of Connecticut: Traffic stop data analysis and findings, Vol. 16. 2015, 2017; referencing "the veil of darkness hypothesis," Grogger, Jeffrey, and Greg Ridgeway, Testing for racial profiling in traffic stops from behind the veil of darkness, Journal of American Statistical Association 101.475 (2006): 878–887).

[9] Id. (citing Pierson, Emma, Sam Corbett-Davies, and Sharad Goel, Fast Threshold tests for detecting discrimination, International Conference on Artificial Intelligence and Statistics (2018)).

[10] See generally Terry v. Ohio , 392 U.S. 1 (1968).

[11] See Kovera at 1141–43 (examples of the broad range for what constitutes reasonable suspicion and discussion of "stop and frisks").

[12] Id. at 1142 (citing Baumgartner et al., (2018); ross et al., (2017)).

[13] Barnes, J.C., et al., Arrest prevalence in a national sample of adults: the role of sex and race/ethnicity, American Journal of Criminal Justice 40.3 (2015): 457–465).

[14] Kovera, Journal of Social Issues 75.4 (2019), 1139-1164, 1143.

[15] Id. at 1143–44.

[16] Mitchell, Ojmarrh, 7 Michael S. Caudy, Examining racial disparities in drug arrests, Justice Quarterly 32.2 (2015): 288–313; Ojmarrh & Caudy, Race differences in drug offending and drug distribution arrests, Crime & Delinquency 63.2 (2017): 91–112.

[17] Kovera, at 1144.

[18] Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978).

[19] Wayte v. United States , 470 U.S. 598, 607–08 (1985).

[20] See Zane, Steven N., Brandon C. Welsh, and Kevin M. Drakulich, Assessing the impact of race on the juvenile waiver decision: A systematic review and meta-analysis, Journal of Criminal Justice 46 (2016):106–117 (study included a total of 20 independent studies in order to generate weighted mean effect sizes of the effect of race on the waiver decision).

[21] Administrative Office of the U.S. Courts, 2016; Kutateladze, Besiki Luka, Nancy R. Andiloro, and Brian D. Johnson, Opening Pandora's box: How does defendant race influence plea bargaining?, Justice Quarterly 33.3 (2016): 398–426.

[22] Id.

[23] Kutateladze, Besiki L. et al., Cumulative disadvantage: Examining racial and ethnic disparity in prosecution and sentencing, Criminology 52.3 (2014): 514–551; see also Kovera at 1146 (more Black defendants receiving custodial pleas for misdemeanor marijuana offenses).

[24] Kovera at 1146 (quoting Metcalfe, Christi, and Ted Chiricos, Race, plea, and charge reduction: An assessment of racial disparities in the plea process, Justice Quarterly 35.2 9 (2018) at 242.

[25] Kovera at 1146 (see for examples of disparities in various offenses, crime severity, offender status, and socioeconomic status); Ehlers, Scott, Winvent Schiraldi, and Jason Ziedenberg, Justice Policy (2004) (examples of how harsh sentences for repeat offenders, like three-strikes laws, contribute to racial disparities in prison populations); NAACP Legal Defense and Educational Fund, school-to-prison pipeline (2013) (Black defendant were more likely to be sentenced to death than other defendants, especially when their victims were white).

[26] Fischman, Joshua B. and Max M. Schanzenbach, Racial disparities under the federal sentencing guidelines, The role of judicial discretion and mandatory minimums, Journal of Empirical Legal Studies 9.4 (2012): 729–764; Rehavi, M. Marit and Sonja B. Starr, Racial disparity in federal criminal sentences, Journal of Political Economy 122.6 (2014): 1320–1354.

[27] Fader, Jamie J., Megan c. Kurlychek, and Kristin A Morgan, The color of juvenile justice: Racial disparities in dispositional decisions, Social Science Research 44 (2014): 126–140. For more on sentencing, see Steffensmeier, Darrell, and Stephen Demuth, Ethnicity and sentencing outcomes in U.S. federal courts: Who is punished more harshly?, American sociological review (2000): 705–729 (using federal court data collected by the U.S. Sentencing Commission for the years 1993-1996, this study examines racial/ethnic differences — white versus Black versus white-Hispanic versus Black-Hispanic — in sentencing outcomes and criteria under the federal sentencing guidelines).

[28] 18 U.S.C. § 3553(a)(6) (2018).

[29] Kovera at 1147.

[30] Rachlinski, Jeffrey J., et al., Does Unconscious Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1221 (2009).

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