Judges’ Race and Judicial Decision Making: Do
Black Judges Sentence Differently?*
Darrell Steffensmeier, Pennsylvania State University
Chester L. Britt, Arizona State University–West
Objective. This study examines the effects of race of judge on sentencing decisions. Do black judges sentence offenders more severely/leniently than white judges,
and do they use similar/different criteria in their decision making? Methods. Data
are derived from two sources: (1) sentencing outcomes in Pennsylvania from 1991
to 1994 and (2) archival data on judge characteristics, such as race and time on the
bench. Logit models were used to assess the effects of judges’ race on the in/out or
incarcerative decision, and ordinary least squares models were used to assess the
effects on the length-of-term decision. Results. Results showed that black and white
judges weighted case and offender information in similar ways when making punishment decisions, although black judges were more likely to sentence both black
and white offenders to prison. Conclusion. The greater harshness of black judges
suggests they may behave as “tokens” or that they have greater sensitivity to the
costs of crime, in particular, within black communities. Although there were small
race-of-judge effects, there also was much similarity in sentencing practices—suggesting that the job, not so much the individual, apparently makes the “judge.”
The search for racial influences on legal and criminal justice outcomes has
been and continues to be a major enterprise in law, criminology, and the
social sciences more generally (Sellin, 1935; Zatz, 1987; Hagan, 1987). In
the area of criminal sentencing, there now exists an abundance of research
on the effects of defendant’s race on judges’ decisions to impose punishment
on convicted felons. The findings have varied widely (see the reviews in
Dixon, 1995; Kramer and Steffensmeier, 1993; and Spohn, 1994). Although most studies show that black offenders receive somewhat harsher
sanctions than whites, a few show that black defendants receive less severe
sentences, and still others find few race differences or mixed results (Kramer
and Steffensmeier, 1993; Myers and Talarico, 1987).
There is an important missing element in these “racial biases” studies,
however. They focus almost exclusively on the defendants’ race, with little
*Direct all correspondence to Darrell Steffensmeier, Department of Sociology and Population Research Institute, The Pennsylvania State University, 1016 Oswald Tower, University
Park, PA 16802 <[email protected]>. For replication, the data can be obtained from the InterUniversity Consortium for Political and Social Research.
SOCIAL SCIENCE QUARTERLY, Volume 82, Number 4, December 2001
©2001 by the Southwestern Social Science Association
750
Social Science Quarterly
or no consideration for whether the judges’ race affects sentencing practices.
This is surprising, since it is generally accepted that judges have a great deal
of discretion in rendering sentencing decisions and that characteristics of
judges may influence their sentencing decisions (Myers, 1988). For example, in his study of Canadian judges, Hogarth (1971:350) concluded that
“one can explain more about sentencing by knowing a few things about a
judge than by knowing a great deal about the facts of the case.” Indeed, a
major impetus for the policy movement toward determinate sentencing over
the last 20 years has been a stream of reports about judicial sentencing disparity, including race-based disparities. An important contributing factor,
particularly in cases of minority defendants, may be the race of the presiding
judge (Cook, 1973). Indeed, according to some observers (Crockett, 1984;
Welch, Combs, and Gruhl, 1988; Mann, 1993), increasing the proportion
of black judges will result in more equitable treatment of black and white
defendants and reduce racism overall in the criminal justice system.
Growing numbers of black Americans are being attracted to law-related
fields; many are pursuing careers in prosecutors’ and public defenders’ offices and other local, state, and federal criminal justice agencies. The most
recent trend—and the one that may have the greatest ultimate impact—is
the increasing numbers of black Americans who are being appointed or
elected to judgeships at both the federal and state levels (Walker, Combs,
and Gruhl, 1996). Highly visible examples of the integration of blacks in
key criminal justice positions include the two Supreme Court Justices, the
late Thurgood Marshall and the now-sitting Clarence Thomas. Although
their numbers remain small, blacks today make up a larger share of all federal and state judges than a decade or so ago. In Pennsylvania, the increase
in the number of black judges is large enough to enable a comparison of
their sentencing patterns with those of their white counterparts while controlling for a number of important variables thought to influence sentencing.
Using 1991–1994 sentencing data and additional archival data from
Pennsylvania, we examine whether a judge’s race makes a difference in the
sentencing of criminal defendants. Judicial decision-making patterns are
assessed both in terms of the sentencing outcomes (i.e., final decision to
incarcerate or length of prison term) as well as the decision-making process.
We ask:
•
Do black and white judges give similar (or different) sentences to
criminal defendants, net of controls for case characteristics, court contextual variables, and judge’s background?
• Do black and white judges use the same criteria and give the same
weight to case characteristics when arriving at a sentencing decision,
net of controls?
Besides its significance for law and criminology, whether black and white
judges approach sentencing in race-specific ways has relevance for assessing
Judges’ Race and Judicial Decision Making
751
“individual” versus “organizational” explanations of behavior (see discussion
below) and for assessing the impact of race on public policy. Judges in Pennsylvania are elected in nonpartisan elections for a 10-year term, after which
they run in noncontested elections for a 10-year retention term. At issue is
whether officeholding by blacks makes a difference, either in terms of the
decisions black officeholders make or in terms of the way they organize
themselves for action. The research to date suggests both differences and
similarities between black and white officeholders, but there are no comprehensive or conclusive answers (see review in Walker, Spohn, and Delone,
1996).
Prior Research about Race-of-Judge Effects
The few empirical studies on the effects of judges’ race on sentencing and
their key features have yielded somewhat mixed results. Uhlmann (1978)
found that black judges sentence black and white defendants somewhat
more harshly than do white judges, but that the interracial disparities within
each group are virtually identical; that is, both black and white judges sentence black defendants more harshly. Welch, Combs, and Gruhl (1988) also
found some differences. For the decision to incarcerate, black judges treated
black and white defendants alike, whereas white judges were somewhat
more likely to send black defendants to prison. Based on the assumption
that the decision to incarcerate is the crucial one, Welch, Combs, and Gruhl
interpret the finding that white judges were less likely to incarcerate white
defendants as evidence “that black judges are more evenhanded in their
treatment of black and white defendants than are white judges . . . [and]
that having more black judges increases equality of treatment” (p. 126). In
contrast, Spohn, in two separate analyses (1990a, 1990b), uncovered few
differences and concluded that judge’s race has relatively little predictive
power.
Our analysis improves on these studies by overcoming a number of shortcomings in them that suggest caution in drawing conclusions about whether
black judges would make different decisions than white judges. The shortcomings vary from one study to another but include (1) absence (Uhlmann,
1978) or weak measures (Welch, Combs, and Gruhn, 1988; Spohn, 1990b)
of offense seriousness; (2) absence of controls for prior record (Uhlmann;
Spohn, 1990a); (3) failure to analyze the sentencing decision as two separate
outcomes: the decision to incarcerate, and the length of term imposed on
those imprisoned (Uhlmann, 1978; Welch, Combs, and Gruhn, 1988); and
(4) absence of controls for other background characteristics of judges (Uhlmann; Spohn, 1990b). Additionally, none of these studies examined
whether black and white judges use the same criteria and give the same
weight to case characteristics when arriving at a sentencing decision.
Because all the studies are based on data sets dating back to the 1960s and
1970s, it also is important to ascertain whether the reported findings still
752
Social Science Quarterly
apply in light of recent changes in the legal system and in the larger society.
On the one hand, it may be that racial influences on criminal justice outcomes have been reduced because of greater concerns for equal application
of the law and the increasing professionalization and bureaucratization of
criminal justice agencies, including the move toward more determinate
sentencing systems. On the other hand, the recent decade has witnessed
rising media and citizenry concerns about crime, especially “inner-city” and
“black” crime. It may be that judges, especially black judges, are more
alerted to crime’s destructive impact and see themselves as advocates for
crime victims and therefore sentence defendants more harshly than white
judges.
Expectations
We approach the issue of whether and in what ways black and white
judges might differ in their sentencing practices as an institutionally specific
example of the long-standing social science inquiry into whether the “person” or the “organization” most influences attitudes and behaviors (Kanter,
1977; Walker and Fennell, 1986). The person or individual position assumes real and important differences in the ways blacks and whites approach decision making. Because they have grown up and lived as “blacks,”
black judges are likely to have some perspectives and are responsive to some
constituencies different from those of white judges. In the organizational
model, common professional training and identical constraints imposed by
organizational customs and rules overcome any psychological or experienced-based differences between the races. Specifically, any one of the following outcomes is plausible.
1. Small or negligible effects of judge’s race on sentencing, because the
powerful “organizational” influences of selection and socialization
to the judicial role will offset any pre-officeholding attitudes of the
judges. First, studies of judicial backgrounds indicate that judges
recruited to state trial courts share similar characteristics and experiences. Most are middle or upper class and were born and attended
law school in the state in which they serve, and frequently they
have legal experience in the prosecutor’s or public defender’s office
(Spohn, 1990b). Second, these similarities are reinforced by a judicial socialization process that emphasizes the interplay of three focal
concerns in reaching sentencing decisions: (1) the offender’s
blameworthiness and the degree of harm caused the victim, as indicated by the seriousness of offense, the offender’s role in the offense,
etc.; (2) protection of the community, as indicated by prior criminal history, the facts of the crime, such as use of a weapon, etc.; and
(3) practical implications of the sentencing decision, such as ensuring the steady processing of cases, the costs to be borne by the
Judges’ Race and Judicial Decision Making
753
correctional system, and the offender’s “ability to do time” (see
Steffensmeier, Kramer, and Streifel, 1993). Third, adherence to
prevailing norms, practices, and precedents also is encouraged by
the courtroom workgroup: the judges, prosecutors, and public defenders who work together day after day to process cases as efficiently as possible. To expedite sentencing, for example, members
of the courtroom workgroup may informally establish a range of
“normal penalties” for each type of crime and agree to sentence
within that range (Spohn, 1990b; Sudnow, 1965). Individual
judges might deviate from the sentencing norms, but there is no
reason to expect that the judicial socialization process will be more
or less effective among black than white judges.
2a. Substantial race-of-judge effects, with black judges being less punitive
in their sentencing decisions because of pre-officeholding attitudinal
differences between blacks and whites. Black public officials (including judges) have different policy preferences and priorities than
white officials and thus provide substantive as well as symbolic representation (Spohn, 1990b). On grounds that black judges are
likely to see themselves as liberal rather than conservative, Welch,
Combs, and Gruhl (1988:127) speculate that they will be more
sympathetic to criminal defendants than white judges, “since liberal
views are associated with support for the underdog and the poor,
which defendants disproportionately are.”
2b. By extension, this view also projects that black judges will be especially lenient toward black defendants because of (1) the underdog
sentiments noted above, which might lead black judges to be especially sympathetic toward black defendants, who tend to be the
poorest of the poor (Smith, 1983); (2) their own background, including the experiential reality of having faced racial discrimination
themselves (Smith, 1983) or of having a relative, an in-law, an acquaintance, or a friend who has been mistreated by the “justice”
system (Mann, 1993:219); (3) being responsive to concerns of the
black community about fair treatment of black defendants in the
court system (Goldman, 1979; Welch, Combs, and Gruhl, 1988).
These views suggest either that black judges will be particularly
dedicated to “fair play,” so that, at a minimum, they “ensure African American defendants do not receive harsher sentences than
they deserve” (Walker, Spohn, and Delone, 1996:168), or that
black judges will sentence black defendants more leniently—as
Mann (1993:219) writes: “common sense would suggest that a minority jurist who had experienced discrimination and racism would
empathize with the minority defendant standing before him/her
and accordingly show leniency.” Indeed, one survey of black judges
throughout the United States found that these judges believed their
presence on the bench reduced racial discrimination and promoted
754
Social Science Quarterly
equality of justice (Smith, 1983). In addition, an analysis of decisions in the U.S. Court of Appeals (involving the rights of criminal
defendants and prisoners) did find that black judges more often
voted to support the legal claims of defendants and prisoners than
white judges (Gottschall, 1983; but see Walker and Barrow, 1985).
3a. Substantial race-of-judge effects, with black judges being more punitive
in their sentencing decisons because they will behave more like conservative elites and as “tokens” than as underdog sympathizers. Despite recent increases in their numbers, black judges continue to be
greatly outnumbered by white judges. Tokens in skewed groups are
vulnerable to performance pressure (Kanter, 1977). Because their
“differentness” is highly visible, black judges as tokens may feel they
are always under scrutiny and must perform well. Thus, they may
be leery and take greater notice of possible criticisms from colleagues or constituents of “going easy” on criminal defendants.
Bruce Wright, a black writer and former New York City judge,
writes:
No matter how “liberal” black judges may believe themselves to be, the
law remains essentially a conservative discipline, and those who practice it,
conform. Judges who are black tend to keep a low profile. They strive not
to rock a boat in which they wish to succeed by promotion. . . . Black
judges, in short, are pillars of the black bourgeoisie . . . preoccupied with
status, as opposed to black progress. (1973:23)
3b. Moreover, rather than showing favoritism toward black defendants,
black judges might be especially punitive and sentence black defendants
even more harshly than white defendants. First, black judges can be
expected to have heightened sensitivity to social and personal costs
of high levels of black crime (especially within black communities)
and see themselves not so much as representatives of black offenders but as advocates for black victims. In addition, as tokens and
conservative elites who may share widespread conceptions of black
offenders as crime prone, black judges may overcompensate by
sentencing black defendants harshly because they are embarrassed
by high levels of black criminality; wish to avoid possible criticism
from fellow judges and other courtroom actors (who mostly will be
white) for being lenient, and view themselves as community leaders
and legal representatives who have special responsibilities to address
the problem of crime in many black neighborhoods. Moreover,
black judges may be less susceptible to “benign neglect,” that is, the
tendency to sentence black offenders less harshly because their victims typically are black.
In view of the shortcomings and scarcity of research to date, whether the
judge’s race makes a difference in sentencing decisions is unresolved (especially in contemporary times). This study compares the sentencing decisions
Judges’ Race and Judicial Decision Making
755
of black and white judges and asks: Can we document empirically the existence of black/white differences in judicial decision-making or sentencing
practices?
Data and Procedures
Our data come from two sources: (1) sentencing outcomes in Pennsylvania from 1991 to 1994, compiled by the Pennsylvania Commission on
Sentencing (PCS); and (2) archival information on judge characteristics
such as race, age, prior prosecutorial experience, and length of time on the
bench. Together, these data provide perhaps the richest information available in the country for analyzing judges’ sentencing practices. By Pennsylvania law, each sentence given for a felony or misdemeanor conviction must
be reported to the PCS. Pennsylvania implemented presumptive guidelines
in 1982 to structure, but not eliminate, sentencing discretion. The guidelines therefore represent a structured system in which offense severity and
prior record are supposed to be the major determinants of sentencing. However, unlike certain other guideline systems (e.g., Minnesota, the federal
system), Pennsylvania’s allows more sentencing discretion, but also risks the
possible intrusion of sentencing disparity. The data provide detailed information on sentences given, as well as unusually complete and specific information on offense severity and type, prior record, number of convictions,
and other offender-related and court contextual variables that might affect
sentencing decisions. (For details about the data and their characteristics
and collection, see Ulmer, 1997).
Our analysis is limited to the four Pennsylvania counties (out of 67) having at least one black judge (Allegheny, Dauphin, Lawrence, and Philadelphia). Also, in order to control for possible effects of judge’s gender and
because only one black judge was female, our analysis is limited to male
judges. (See Steffensmeier and Hebert, 1999, for an analysis of the effects of
judge’s gender on sentence outcomes.) Thus, we compare the sentencing
decisions of 10 black (male) judges (4,374 sentences) to those of 80 white
(male) judges (34,668 sentences) in these four counties.1
We include controls for a combination of case characteristics that have
been shown previously to affect the sentencing of criminal defendants. The
1
Besides the analysis presented below, we used two additional strategies to assess the influence of the relatively larger number of cases sentenced by white judges compared to the
number of cases sentenced by black judges. First, to match the number of cases sentenced by
black judges, we selected 100 random samples of 4,374 cases from the 34,668 cases sentenced by white judges. Second, we selected 100 random samples of 2,000 cases each from
those cases sentenced by white judges and those sentenced by black judges. The results that
we report below using all available cases do not differ in any meaningful way. Both sampling
strategies not only show the same variables to have statistically significant effects on the two
sentencing decisions, but also show the differences in coefficients across white and black
judges to be the same.
756
Social Science Quarterly
legal factors we control are offense severity and prior criminal history. Our
control for offense seriousness is a 10-point severity scale developed by the
PCS that ranks each statutory offense, based on factors such as degree of
victim injury, offender culpability, and property loss. We also control for
whether the conviction offense involved a violent crime, a property crime, a
drug offense, or a forgery-fraud offense (used as the reference category), and
we include a measure of the number of concurrent offense convictions that
accompany the most serious conviction. Our measure of prior record is a
seven-point scale of prior convictions, weighted according to their severity.
Recall that none of the prior studies on race-of-judge effects provide such
rigorous controls for these important legally prescribed variables.
We also controlled for offender’s race (black offender coded as 1), sex
(female offender coded as 1), age (in years), and mode of conviction, that is,
whether the offender was convicted through a trial or through a guilty plea
(used as the reference category). Additionally, besides race of judge (black
coded as 1), we included controls for judge’s age and time on the bench. We
initially controlled for prosecutorial experience, but since only one black
judge had such experience, the coefficient was unstable. Increased time on
the bench might harden judges and incline them to impose more severe
sentences (Hogarth, 1971). Other researchers have found that older judges
tend to be more conservative and to impose more severe sentences than
younger judges (Spohn, 1990b).
The recent literature points to the need to consider sentencing as at
minimum a two-stage decision process: whether to incarcerate an offender,
and the length of this incarceration (Kramer and Steffensmeier, 1993). We
therefore use two measures of sentence outcome. The incarceration decision
is coded as 1 for prison and 0 for nonprison sentence. The length-ofsentence decision is measured in minimum number of months. Logit regression models are used for the “in/out” decision and ordinary least squares
regression models for the length-of-sentence decision.
Because the number of cases included in our analysis is so large, many
small sentencing differences between groups or categories often turn out to
be significant in a statistical sense. Therefore, we place more emphasis on
the direction and magnitude of the coefficients than on statistical significance levels and judge the relative importance of the substantive effects of
the independent variables according to probability differences in the likelihood of incarceration and differences in months for sentence length. To
convert odds ratios to probabilities, we use the formula presented by Hanushek and Jackson (1977): [(odds ratio)/(odds ratio + 1)] − 0.5. Nonetheless, even with a data set as large as this one, some cell sizes can become very
small and suggest the need to pay some attention to statistical significance
levels. We use .001 as the level of statistical significance.
Judges’ Race and Judicial Decision Making
757
TABLE 1
Main Effects of Judge’s Race on In/Out and Length-of-Term Outcomes
Net of Case Characteristics and Judge Characteristics
In/Out
(Logistic Regression)
Variable
Odds Ratio
Race of judge
1.662
Prior record score
1.327
Offense severity
1.609
Number of convictions
1.023n.s.
Trial
1.528
Female offender
.660
Black offender
1.258
Age of offender
.987
Violent offense
1.045n.s.
Property offense
1.270
Drug offense
1.649
Age of judge
1.034
Time on bench
.978
Intercept
.016
Model chi square
12075.73
df
13
Percentage correctly
placed
80.7
R2
Adjusted R2
Length of Term
(OLS)
Probability
b (months)
.124
.070
.117
.006
.104
–.102
.057
–.003
.011
.059
.122
.008
–.006
–1.237n.s.
2.273
8.124
1.800
15.961
–2.989
–.945
–.070
11.250
–.129n.s.
–4.704
.071
.402
–39.878
.423
.422
n.s. Not statistically significant at p < .01.
Findings
Descriptive statistics and bivariate correlations for the data are available
on request from the authors. Briefly, we note that black judges are younger
(53.7 to 58.6 years), have served on the bench for a shorter period (11.6 to
12.4 years), and are less likely to have prosecutorial experience (10 percent
to 15 percent). Second, the independent variables reflecting case characteristics (e.g., defendant’s prior record) indicate that black and white judges
handled comparable kinds of cases. Although black judges were somewhat
more likely to have adjudicated defendants with higher prior record scores,
white judges were somewhat more likely to have adjudicated defendants
with higher offense gravity scores. Third, offense severity and prior record
have large effects on sentence outcomes, whereas the other variables—including judge’s race—tend to be correlated only weakly with sentence outcomes. Fourth, black judges (on average) are more likely to incarcerate
offenders (61.9 percent to 54.9 percent) and sentence those imprisoned to
slightly shorter sentences than white judges (1.3 months shorter on average).
758
Social Science Quarterly
We begin our main analysis by examining the independent, main effects
of judge’s race on sentencing while controlling for case and judge characteristics. We then partition the data by race of judge to (1) examine the effects
of the independent variables on the sentences imposed by white judges; and
(2) replicate this analysis for black judges.
The Decision to Incarcerate
The left side of Table 1 shows the results of the model predicting the effects of judge’s race and other independent variables on the incarceration
decision. Offenders with higher prior record scores and higher offense gravity scores are much more likely to be imprisoned (each increase in the scores
raises the probability of incarceration by 7 percent and 12 percent, respectively), whereas offenders who are female, white, older, and plead guilty are
less likely to be incarcerated. The background and career variables have
weak effects (under 4 percent). But the main finding is that the odds of incarceration by black judges on average are about 1.66 times those by white
judges. These odds yield a difference in the probability of incarceration by
black and white judges of 12 percent.
The Length-of-Term Decision
Table 1 (right side) also shows the results for the model predicting sentence length. Again, prior record and offense gravity have strong effects on
sentence length: an increase in each score increases the period of incarceration about three months and eight months, respectively. There also is a substantial “trial penalty” effect: defendants convicted in a trial receive
sentences that are 16 months longer on average than do defendants who
plead guilty. Offender characteristics such as race, sex, and age have small
effects: whites, females, and older defendants receive shorter prison terms.
The effects of the background or career variables are negligible (one month
or less). The main finding in Model 1 is that judge’s race has a neglible or
very small effect on the term length decision, with black judges handing out
sentences that on average are about a month shorter. Notably, this difference
is not statistically significant.
Thus, we find that black judges are harsher in the incarcerative decision
but not in the length-of-term decision, where their sentences are comparable to those of white judges. These findings parallel those from Welch,
Combs, and Gruhl’s 1970s study of judges in Detroit. On the assumption
that the incarcerative decision is the more crucial decision point (Welch,
Combs, and Gruhl, 1988; Steffensmeier, Ulmer, and Kramer 1998), both
studies therefore support the position that black judges are harsher overall in
the sentencing decisions. Arguably, in the sense that “the damage is already
mostly done,” negative outcomes for the defendant such as loss of freedom
Judges’ Race and Judicial Decision Making
759
TABLE 2
Race-of-Judge Partitioned Analysis of the Effects of Case Characteristics and
Judge Characteristics on In/Out and Length-of-Term Outcomes
In/Out
Probability Effect
Variable
Black
Judge
White
Judge
Length of Term
Sentence Length (months)
Black/
White
Differencea
Prior record
score
.081
.070
Offense
severity
.138
.114
Number of
convictions
.006n.s
.005n.s.
Trial
.069n.s
.106
Female
offender
–.069
–.108
Black offender
.019n.s
.062
Age of
offender
–.005
–.003
Violent offense
–.007n.s
.015n.s.
Property
offense
.093
.056
Drug offense
.175
.119
Age of judge
.005
.009
Time on bench –.012
–.006
Intercept
.446
.486
Model chi
square
1615.96 10481.80
df
12
12
Percentage
correctly
placed
84.0
80.3
R2
Adjusted R2
Black
Judge
White
Judge
Black/
White
Difference
.011n.s
2.375
2.263
.111n.s
.024
6.840
8.325
.001n.s
–.037n.s
3.139
12.442
1.579
16.333
.039n.s
–.043n.s
–2.943n.s –3.094
–.459n.s –.944n.s.
–.002n.s
–.022n.s
–.080n.s –.069
10.443
11.292
1.146n.s –.338n.s.
.036n.s
.056n.s –2.706n.s –5.139
–.004n.s
.129
.037n.s.
–.005n.s
–.072n.s
.457
–.040
–34.582 –39.124
.422
.420
–1.485
1.561
3.891n.s
.151n.s
.485n.s
–.011n.s
–.849n.s
1.484n.s
2.433n.s
.092n.s
–.529
4.543n.s
.425
.425
aBlack minus white difference calculated from unrounded figures.
n.s.Not statistically significant at p < .01.
and the stigmatization of “doing time” coincide more with the circumstance
of being jailed or imprisoned than in the duration of one’s imprisonment.
Judge’s Race and Sentencing Criteria (Partitioned Models)
We next partition the data by race of judge and compare the coefficients
of black to white judges across a range of variables. Table 2 displays the results, with the criteria organized into four groupings: (1) legal and case
760
Social Science Quarterly
processing, (2) offender characteristics, (3) type of offense, and (4) judge
characteristics.
Notably, the partitioned models in Table 2 reveal that the effects of these
variables on sentencing decisions are nearly identitical between white and
black judges. For the incarcerative decision, the effects of prior record and
offense seriousness are large and in the same direction for both black and
white judges. For a one-unit difference in level of prior record score, the
probability of incarceration increases by 8 percent for black judges as compared to 7 percent for white judges, whereas each added level of offense seriousness increases the probability of imprisonment by 14 percent for black
and 11 percent for white judges. In addition, whereas there are neligible
race-of-judge differences for violent offenses and property offenses, black
judges are somewhat more likely to incarcerate offenders convicted of drug
offenses (18 percent to 12 percent imprisonment probability). For the remaining variables in the model, those having to do with offender characteristics and judge attributes, the race-of-judge effects are small or negligible.
The effects of defendant’s sex, race, and age are in the same direction for
black and white judges, and these effects are similar in magnitude
(black/white difference is under 3 percent). Also, both judge’s age and time
on bench have negligible effects on the incarcerative decisions of both black
and white judges. In addition, the “trial penalty” effect is similar, with both
black and white judges more likely to incarcerate defendants convicted by
way of trial rather than guilty plea.
Turning next to the term length decision, we find that the direction and
magnitude of the effects of all these variables on length of term are comparable across black and white judges. The legal variables have nearly identical
effects (e.g., 2.4 versus 2.3 months for each increase in prior record score),
and both black and white judges impose a penalty of about 13–16 months
for pursuing a trial. Also, the effects of offender characteristics are nearly
identical for black as compared to white judges (e.g., both impose prison
terms about three months longer for male defendants), and small or negligible race-of-judge differences exist across types of offense. Lastly, judge’s age
and time on bench have very small effects on the length-of-term decisions of
both black as well as white judges.
When these results are taken together, we find many similarities and few
differences between black and white judges in the criteria they use in arriving at sentencing decisions. The effects of key variables are in the same direction, and the differences in the size of the race-of-judge effect across most
criteria are small or negligible. The chief difference is that black judges are
more strongly influenced by offense conduct than white judges in rendering
the in/out decision, inasmuch as black judges are comparatively more punitive toward offenders convicted of more serious crimes and/or drug violations.
Judges’ Race and Judicial Decision Making
761
Discussion and Conclusion
Our analysis of Pennsylvania sentencing practices adds to the small number of empirical studies of the effects of judge’s race on sentencing outcomes. More so than past research, our analysis is based on current or 1990s
sentencing practices, involves a large number of cases, includes rigorous
controls for legally relevant variables, and considers whether white and black
judges use similar/distinct criteria in their sentencing decisions.
We find many similarities between black and white judges’ sentencing
decisions. There is considerable overlap in the sentences imposed and in the
weighing of criteria for determining sentence severity. For example, the legal
variables of prior criminal history and offense seriousness are the main determinants of the sentencing decisions of black as well as white judges; both
invoke a “trial penalty,” and so forth. These findings are consistent with the
organizational position (versus the “individual” or “person” viewpoint),
which postulates that the powerful influences of selection and socialization
to the judicial role will largely offset pre-officeholding attitudes of judges.
However, we also find a noteworthy race-of-judge difference: black judges
are somewhat more likely to incarcerate defendants and hence are more punitive
in their sentencing decisions. Importantly, this difference is uniform regardless
of whether the defendant is black or white. The significance of black judges’
greater punitiveness in the decision whether or not to incarcerate rests partly
on the actuality that a prison sentence, regardless of its length, is potentially
stigmatizing and severing of employment and ties to communities, families,
and friends, and also potentially perilous, since inmates face risks of violence
and sexual victimization at the hands of other inmates.
Taken together, our findings are contrary to three prevalent assumptions
in the literature: (1) that black judges would be more lenient or “softer” on
defendants as a whole because they will sympathize with the underdog and
the poor (which defendants disproportionately are); (2) that black judges
would favor or be softer on black defendants—rather, we find that both
black and white judges sentence black defendants more harshly than white
defendants; and (3) that black judges would be more even-handed in their
sentencing decisions and that increasing the number of black judges would
contribute to greater equality in sentencing practices. Instead, black and
white judges appear equally even-handed (or biased).
The key finding, that black judges are harsher in their sentencing practices than white judges, is consistent with the earlier speculation that black
judges may behave more like conservative elites and as “tokens” than as underdog sympathizers. Because they are overwhelmingly outnumbered by
white judges and because their “differentness” is highly visible, black judges
as tokens may feel they are always under scrutiny and must perform well
(Kanter, 1977; Wright, 1973, 1987). Thus, they may put in an extra effort
and take greater notice of would-be criticisms from constituents or other
courtroom actors about the consequences of their sentencing decisions.
762
Social Science Quarterly
They also may be particularly aware and concerned about the social and
personal costs of serious crimes and drug-related crimes, especially within
black communities. The likelihood that black judges may have greater sensitivity to these costs is consistent with the small race-of-judge difference
that emerged in the race-specific models.
Future theoretical work and empirical research might explore why black
judges are somewhat more punitive in their sentencing decisions. Race, as is
true of most background variables, is an imperfect indicator of socialization
experiences, attitudes and values, and risk assessments. However, the comment of one black judge who was interviewed as part of the senior author’s
ongoing evaluation of sentencing practices in Pennsylvania is consistent
with our statistical findings and theoretical interpretation:
From my experience, I don’t see where being a black judge or a white
judge would make much of a difference. Maybe a judge in a rural area may approach things differently than someone sitting in a city court, but even then
the differences wouldn’t be considerable. You’re still a judge, with all the canons
of that office . . . all the people watching you. Really, as far as toughness, the
black judges I know are as tough or tougher than white judges. They [black
judges] know in a personal way how crime affects the lives of people and will
feel in a personal way the need to do something about it.
Another black judge remarked (especially in reference to black defendants):
A black judge isn’t going to buy a [defendant’s] sob story or line about
being sorry for what he done, that he just needs the chance to go straight.
Obviously, more systematic observations and interviews with judges are
needed to examine more directly the “gestalt” of their sentencing decisions
and whether that gestalt differs among black as compared to white judges
(see, for example, the research by Brace and Hall [1997] on appellate court
judges). Do black and white judges, for example, differ in their conceptions
of judicial role or their personal theories of punishment, and how do such
differences (if they exist) affect their sentencing practices?
In sum: the main race-of-judge difference to emerge from our analysis of
sentencing practices in Pennsylvania is that black judges imposed harsher
sentences on criminal defendants; that is, they were more likely to send
black as well as white offenders to prison. This suggests that the “life experiences” or the courtroom organizational pressures facing black judges differ
somewhat from those of white judges and will influence their judicial decision making. In most respects, however, we found that black and white
judges have similar sentencing practices, which suggests that black (and
white) judges are governed more by their legal training and legal socialization than by their socially structured personal experiences. The job, not so
much the individual, apparently makes the “judge.”
Judges’ Race and Judicial Decision Making
763
REFERENCES
Brace, Paul, and Melinda Gann Hall. 1997. “The Interplay of Preferences, Case Facts,
Context, and Rules in the Politics of Judicial Choice.” Journal of Politics 59:1206–31.
Cook, Beverly. 1973. “Sentencing Behavior of Federal Judges: Draft Cases, 1972.” Cincinnati
Law Review 42:597–633.
Crockett, George. 1984. “Racism in the Courts.” Journal of Public Law 20:685–88.
Dixon, Jo. 1995. “The Organizational Context of Criminal Sentencing.” American Journal of
Sociology 100(5):1157–98.
Goldman, Sheldon. 1979. “Should There Be Affirmative Action for the Judiciary?” Judicature
62:488–94.
Gottschall, Jon. 1983. “Carter’s Judicial Appointments: The Influence of Affirmative Action
and Merit Selection on Voting on the U.S. Court of Appeals.” Judicature 67(10):165–73.
Hagan, John. 1987. “Review Essay: A Great Truth in the Study of Crime.” Criminology
25:421–28.
Hanushek, Eric A., and John Jackson. 1977. Statistical Methods for Social Scientists. New
York: Academic.
Hogarth, John. 1971. Sentencing as a Human Process. Toronto, Ontario, Canada: University
of Toronto Press.
Holmes, Malcolm, Harmon Hosch, Howard Daudistel, Dolores Perez, and Joseph Graves.
1993. “Judges’ Ethnicity and Minority Sentencing: Evidence Concerning Hispanics.” Social
Science Quarterly 74:139–59.
Kanter, Rosabeth Moss. 1977. Men and Women of the Corporation. New York: Basic Books.
Kramer, John, and Darrell Steffensmeier. 1993. “Race and Imprisonment Decisions.”
Sociological Quarterly 34:357–76.
Mann, Coramae. 1993. Unequal Justice: A Question of Color. Bloomington, IN: Indiana
University Press.
Myers, Martha. 1988. “Social Background and the Sentencing Behavior of Judges.”
Criminology 26: 649–75.
Myers, Martha, and Susette Talarico. 1987. The Social Context of Criminal Sentencing. New
York: Springer-Verlag.
Sellin, Thorsten. 1935. “Race Prejudice in the Administration of Justice.” American Journal
of Sociology 41:212–17.
Smith, Michael. 1983. Race versus the Robe: The Dilemma of Black Judges. New York:
National University Publications.
Spohn, Cassia. 1990a. “Decision Making in Sexual Assault Cases: Do Black and Female
Judges Make a Difference?” Women & Criminal Justice 2:83–105.
———. 1990b. “The Sentencing Decisions of Black and White Judges: Expected and
Unexpected Similarities.” Law & Society Review 24:1197–1216.
———. 1994. Courts, Sentences, and Prisons. Daedalus 124(1):119–43.
Steffensmeier, Darrell, and Chris Hebert. 1999. “Women and Men Policymakers: Does the
Judge’s Gender Affect the Sentencing of Criminal Defendants.” Social Forces 77:1163–96.
Steffensmeier, Darrell, John H. Kramer, and Cathy Streifel. 1993. “Gender and
Imprisonment Decisions.” Criminology 31(3):411–46.
764
Social Science Quarterly
Steffensmeier, Darrell, Jeffery Ulmer, and John Kramer. 1998. “The Interaction of Race,
Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and
Male.” Criminology 36:763–98.
Sudnow, David. 1965. “Normal Crimes: Sociological Features of the Penal Code.” Social
Problems 12:255–64.
Uhlmann, Thomas. 1978. “Black Elite Decision Making: The Case of Trial Judges.”
American Journal of Political Science 22:884–95.
Ulmer, Jeffery. 1997. Social Worlds of Sentencing. Albany, NY: State University of New York
Press.
Walker, Henry, and Mary Fennell. 1986. “Gender Differences in Role Differentiation and
Organizational Task Performance.” Pp. 255–75 in Ralph Turner and James Short, Jr., eds.,
Annual Review of Sociology, vol. 12. Palo Alto, CA: Annual Reviews.
Walker, Samuel, Cassia Spohn, and Miriam Delone. 1996. The Color of Justice: Race,
Ethnicity, and Crime in America. New York: Wadsworth.
Walker, Thomas, and Deboral Barrow. 1985. “The Diversification of the Federal Bench:
Policy and Process Ramifications.” Journal of Politics 47:596–616.
Welch, Susan, Michael Combs, and John Gruhl. 1988. “Do Black Judges Make a
Difference?” American Journal of Political Science 32:126–36.
Wright, Bruce. 1973. “A Black Brood on Black Judges.” Judicature 57:22–23.
———. 1987. Black Robes, White Justice. Secaucus, NJ: Lyle Stuart.
Zatz, Marjorie. 1987. “The Changing Forms of Racial/Ethnic Biases in Sentencing.” Journal
of Research in Crime and Delinquency 24:69–92.