JustEquity and the American judiciary: Can racial diversity among judges affect sentencing outcomes?

Every year, over 10 million people are arrested in the United States. Most of these individuals appear, are convicted, and receive their sentences in lower-level state courts. Across the nation, more defendants receive convictions in state courts than federal courts, and Black people are more frequently incarcerated than white people in every state. The judiciary, however, remains mostly white. The Brennan Center reports that 28 states have no Black justices, and “across all state high courts, just 17 percent of justices are Black, Latino, Asian American, or Native American.” This makes research focused on state courts critical, yet most work on representation in the courts is focused on the federal judicial system.

Although there is a widespread normative commitment to racial diversity and representation across the United States, scholarship in this area often lacks a consistent estimate of the relationship between individual government officials’ racial identities and their behavior. With respect to judges, for example, some studies highlight little to no difference in judicial behavior based on judges’ racial identities.

One of the main arguments I make in this article is that research focused on evaluating the impact of racial and ethnic diversity must capture each of its components. Differences in behavior based on personal characteristics is one component of the effect of diversity, but evaluations of this component alone do not capture the full impact of shifts in diversity on institutional outcomes.

Previous research on the impact of racial diversity in the judiciary has largely been limited to the effects of individual judges’ identities on decision making. Diversity is a group characteristic, however, and such an approach will not capture how shifts in diversity impact all members of a group. I argue that increasing Black judges’ representation on the bench decreases racial disparities in felony sentencing, but not just because of differences in Black and white judges’ behavior. Rather, Black judges’ presence changes their peers’ behavior. The subsequent shifts in judges’ decisions increase the court’s likelihood of providing more similar sentences to defendants across racial groups.

Studies have shown that the environment in which a trial judge works can influence their behavior. We know relatively little, however, about how changes in descriptive representation on the bench affect sentencing outcomes for defendants in lower-level state courts. My study makes the argument that the racial composition of an institution can influence solitary public officials’ behavior, and that this influence may be more important than any individual’s identity when it comes to reducing disparities in institutional outcomes. To investigate the relationship between racial diversity among judges and sentencing decisions, I analyzed approximately 20 years of felony case data from one of the largest unified court systems in the United States.

I find that as the percentage of Black judges in a courthouse increases, white judges are less likely to render incarceration sentences in cases with Black defendants. These shifts in judicial behavior decrease disparities, shrinking the Black-white gap in the probability of incarceration by as much as seven percentage points. Interestingly, I find that racial diversity among judges does not change how judges sentence in cases with white defendants. I also find that increases in Black judicial representation led to shorter sentences, regardless of the defendant’s race. The results from my study provide evidence of a relationship between racial diversity among judges and trial judges’—particularly white trial judges’—sentencing decisions. In my ongoing work, I attempt to uncover what drives these behavior changes. Interviews with current and former judges show that, despite running their own courtrooms where they work separately from their colleagues, judges interact with each other regularly—formally and informally.

Formal interactions occur at events like mandatory meetings and trainings, judicial conferences, and continuing legal education courses. Informal interactions include weekday lunches, seeing colleagues at local bar association events, and chatting with colleagues about case-related legal questions. For white judges, as they interact with a more diverse group of colleagues, they may become more aware of the salience of race in sentencing, update their beliefs about racial disparities in sentencing, or face pressure not to appear discriminatory.

While the analyses in my article did not produce clear evidence of behavior changes among Black judges as they gain Black colleagues, interactions among trial court colleagues suggest pathways through which this could occur. If being a member of an extreme minority group in the workplace leads Black judges to experience the pressures of tokenism, having more Black colleagues may alleviate those pressures such that Black judges feel more able to behave in line with their preferences.

There is much at stake when considering racial diversity among trial court judges. Below are three important implications from this research that should be considered by scholars and advocates interested in trial court sentencing and racial diversity in the criminal legal system.

1. The impact of racial diversity extends beyond the behavior of any one judge whose identity might make the bench more racially diverse.
2. Racial diversity among members of the judiciary has the potential to do more than instill a sense of institutional legitimacy among those most likely to appear in criminal courts as defendants.
3. Racial diversity among officials in the criminal legal system cannot undo the inequalities the system produces, but understanding how racial diversity operates in trial courts highlights its impact on sentencing and points toward how it might influence other institutions.