Racial Disparity Among Prosecutors and Trial Judges Translates to Unequal Justice, Activists Say

While the nation continues to reverberate from the growing movement to stop the widespread victimization of Black people by the police, less attention is being paid to two other prongs of the criminal legal system: prosecutors, and the trial judges who are supposed to safeguard the rights of the accused, ensure a fair trial takes place, and act as a check against excesses by police and prosecutors alike.

Two nationwide studies of the racial demographics of the nation’s state judges and prosecutors in recent years revealed glaring disparities between the people who make criminal justice decisions and the communities they are supposed to serve. In a country where just over 13 percent of residents are Black—and 39 percent are people of color—in 2015, 95 percent of elected prosecutors were white. Among state trial judges, who are present in every part of the criminal justice process from signing warrants to determining parole terms, as of 2016, fewer than 2 in 10 state trial judges were people of color. In 16 states, fewer than 1 state judge in 10 was a person of color.

The lack of representation of Black and other people of color on state courts undermines the courts’ legitimacy, said Vanderbilt University Law School Professor Tracey George, co-author of the 2016 “Gavel Gap” study funded by the American Constitution Society for Law and Policy. “The representation problem,” she told The Appeal, undermines both the courts’ perception of legitimacy and “its real legitimacy when it doesn’t reflect the communities that it serves.”

“This isn’t something that is occurring because George Floyd was murdered by police. This has been happening since the foundation” of the criminal legal system, Adam Foss, the founder and executive director of Prosecutor Impact and a former Boston-area assistant district attorney, told The Appeal. The racial disparity in state trial courts’ makeup also is a “sign that there’s some problem in the selection method,” which is depriving people from underrepresented groups from becoming judges, George said.

Part of the issue could simply be the scarcity of opportunities for Black people to join the legal profession. In 2019, only 5 percent of attorneys were Black, according to a survey by the American Bar Association, a proportion that has remained virtually unchanged for the past decade. Another 5 percent were Hispanic, and 85 percent were white. The same year, only 2,897 out of 38,283 first-year law school enrollees were Black.

When Black and other people of color are admitted to law school—a process that some say is more challenging for students of color than it is for white students, even when they have equal LSAT test scores—a disproportionate number of them end up leaving, according to a 2018 analysis of American Bar Association data.

“You’ve reduced the number of people who are ever gonna be a judge just because of how difficult it is for Black and brown kids to get through college,” Foss said. “Getting through law school is an additional challenge … You’re just naturally creating environments where Black and brown people don’t succeed.”

The lack of Black and brown people on the bench has been shown to have real impacts on the outcomes for people of color in the criminal justice system. Academics who study judges have been aware since the 1920s that the environment in which a judge was raised and educated helps determine “whether a judge will be severe or lenient,” according to “The Role of Personal Attributes and Social Backgrounds on Judging,” a chapter in 2017’s “Oxford Handbook of the American Law and Judiciary” co-authored by George.

“We have evidence that women judges, particularly when it comes to certain kinds of cases, criminal cases, behave differently and that judges of color, particularly African American judges, behave differently in criminal cases,” George said, adding that the effects are “very subtle but meaningful.”

“A range of studies over time does tell us that African Americans at each stage of the justice system get a harsher outcome than their white counterparts do,” said Marc Mauer, former executive director of The Sentencing Project. “Is the same consideration given to a person of color as a similarly situated white person? And on average, the answer is ‘no.’”

Racial disparities on the bench and in prosecutors’ offices “absolutely” play a role in determining who ends up being charged and going to jail, said David Johnson, a criminal justice organizer with Grassroots Leadership in Austin, Texas. “Racism and white supremacy is built into every aspect of our nation’s operational framework,” he added, including the idea that “the ideal American” is white. Texas received a “D” grade in the Gavel Gap study.

Changing the demographics of the people on state benches and in prosecutors’ offices is important, activists say, but doing so has to be part of the overall work to change a system “that’s designed to control, suppress, and exploit people,” said Michael Finley, chief of strategy and implementation at the W. Haywood Burns Institute. “I think where we look at this is much more to dismantle these systems than rethink how these systems function.”

Samantha Mellerson, the institute’s chief of strategy and impact, said that the “pervasive nature of white supremacist culture” also affects legal professionals of color, shaping how they treat Black and other people of color caught in the justice system.

Mellerson told The Appeal about a recent conversation she had with a woman of color, a former prosecutor who told Mellerson “about how it took her many, many years after leaving that role to really understand the harm she was perpetuating.”

“Even as a person of color, you’re swimming in a culture that you can’t see,” she added.

The Rev. Joe Summers, an activist with the Michigan Poor People’s Campaign and the Interfaith Council for Peace and Justice in Washtenaw County, was one of the organizers behind a June 17 rally in Washtenaw County to support Jacob LaBelle, a Black man facing sentencing in a shooting incident over the objections of the victim in the case, who had asked to take part in a restorative justice program. All of the trial judges in Washtenaw County, where Black individuals make up 12.3 percent of the population, are white.

“I think there is no question that we need our criminal justice system to reflect our population at large. And simultaneously, we need to be aware that these protests that we’re seeing around the country, many of them are in places that have seen greater diversity without the change in policies that we’re needing to see changed,” Summers said. “So we just need to keep our eyes on both things at the same time.”