Study Shows Judges Appointed by Republicans Are Way More Racist Than Others

Human Rights

The study was sui generis: Two Harvard Law professors, Alma Cohen and Crystal S. Yang, set out to analyze 1,400 federal judges’ sentencing practices over a 15-year period affecting more than 500,000 defendants. The results were predictable but disheartening.

They unearthed a stunning number of influences on sentencing, from years of experience and level of racism in a state to the party of appointment. Its major finding: Republican-appointed judges give black defendants harsher sentences than their white counterparts.  

“Republican-appointed judges sentence black defendants to three more months than similar nonblacks. … These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”

Three months’ discrepancy accounts for 65 percent of the baseline racial sentence gap, meaning the average sentence disparity between similarly situated white and black defendants. The convictions driving the gap: serious drug and violent offenses.

Other markers for racist sentencing? Inexperience—judges’ racial sentencing gaps shrink as they age—and geography. Judges in states with a higher level of racial bias tend to inflict higher average racial sentencing gaps.

Following the expansion of judicial discretion in 2005’s United States v. Booker, the partisan racial sentencing gap grew. As it turns out, it wasn’t that Republican appointees used discretion to dole out harsher sentences; Democratic appointees opted to give more lenient sentences.

The authors don’t touch on it, but consider that the 100-to-1 sentencing rule for powder versus crack cocaine offenses—whereby being found with 100 grams of powder cocaine carried the same penalty as being found with a single gram of crack cocaine—was still in effect until the 2010 Fair Sentencing Act. As that sentencing regime (deliberately) disparately affected African Americans, it makes sense that the advent of discretion might result in Democratic but not Republican judges choosing to sentence crack offenders to sentences more in line with those corresponding to powder cocaine.

If you needed a reminder of how crucially important blocking Trump’s judicial nominees and retaking the judiciary is:

[R]acial disparities in sentencing would be almost halved if federal district courts were comprised of all Democratic-appointed judges, and reduced by more than five percent if courts were comprised of ten percent more judges appointed by Democratic presidents. In recent decades, the typical president has appointed roughly 160 district court judges in a four-year term. Under the current composition of the federal court system, these appointments could change the partisan composition of district courts by 15 to 20 percentage points. … The potential to affect disparities is even larger for two-term presidents.

Trump’s already placed 17 judges on district courts—that is, the trial courts that do the sentencing—around the country. Another 72 district court nominations have been announced or are pending before the judiciary committee. Oh, and there are an additional 52 such vacancies for which he’s not announced a nomination. 

There are just 677 federal district court judgeships; that means that a little more than 13 percent of the district bench will be composed of Trump judges if his current roster gets through. Should he fill all the other district vacancies, Trump’s proportion rises to more than one-fifth. Given the quality of nominees so far, it’s all but certain they’ll be at least as racist as their Republican-appointed predecessors. 

Oh, and Trump’s also appointed 21 appellate judges and nominated another 10. Those are the judges to whom sentencing appeals go. Not to mention the law they make tends to go for the states they cover: fewer than 1 percent of appeals from these courts make it to the Supreme Court.

This is why courts matter.

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