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The next frontier of discriminatory sentencing

Photo by Flickr user MR

The next frontier of discriminatory sentencing


Implicit bias in the criminal justice system is a very hot topic these days, as it should be in a system where unjustified racial disparities persist. This past April, my co-authors and I published an article, Judging Implicit Bias: A National Empirical Study Of Judicial Stereotypes, which looks at implicit bias in sentencing by federal and state court judges. It was just the second published article about the role of implicit bias in sentencing by trial judges, and the first focusing on federal judges. Unlike much of the existing research on implicit bias in the criminal justice system, we decided not to study Black-White racial disparities, but instead that of so-called “privileged minorities”: Asians and Jews. We unearthed troubling findings of implicit bias in the length of sentencing in a white-collar fraud scenario. We also found that trial court judges had greater implicit bias than members of the public.

It is important for everyone who plays a role in the justice system, including judges, to read and understand the now substantial body of research on how implicit bias can infiltrate criminal law and procedure. There are also great subject specific articles on implicit bias in criminal law. For example: On jury selection, see Unraveling the Gordian Knot of Implicit Bias in Jury Selection; on prosecutors, see The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion; on defense lawyers, see Implicit Racial Bias in Public Defender Triage; on the evaluation of evidence, see Forgotten Racial Equality: Implicit Bias, Decision-Making and Misremembering; on theories of punishment, see Systemic Implicit Bias; and on policing, see Police Efficiency and the Fourth Amendment.

In the remainder of this post, I look beyond skin tone bias alone to implicit bias with respect to Afrocentric facial features and skin tone, which I recently wrote about in an essay called The Implicit Racial Bias in Sentencing: The Next Frontier. In that piece, I discussed several studies that indicate that with all sentencing factors equalized for sentencing purposes through regression analysis, offenders with greater Afrocentric facial features and darker skin tone receive longer sentences. In an upcoming article, Looking Criminal and the Presumption of Dangerousness: Afrocentric Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. (forthcoming February 2018) (soon to be added to my SSRN page), my co-author, Victoria Plaut, and I examine the origin and history of race bias in the United States based on Afrocentric facial features and skin tone. Here is the tentative abstract for this article:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features. We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science between the increased length of criminal sentences and colorism and Afrocentric facial features. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

In order to rectify the disparate sentencing that exists due to implicit biases, whether those biases are based on skin tone or facial features, lawyers and judges need to familiarize themselves with the research that currently exists — which, to be sure, is only the beginning. Biases against certain facial features and skin tones can and likely do affect the bail process, plea bargaining negotiations, and myriad other discretionary decisions in the criminal justice system.


Mark W. Bennett is in his 23rd year as a U.S. District Judge in the Northern District of Iowa and a frequent critic of unjust sentencing. The views and opinions expressed in this article are Judge Bennett’s and do not necessarily reflect the views of the Fair Punishment Project.

The future of civil asset forfeiture in Albuquerque at stake in mayoral race

The future of civil asset forfeiture in Albuquerque at stake in mayoral race


In 2015, New Mexico became the first state to ban civil asset forfeiture, also known as policing for profit. Law enforcement cannot take people’s valuables and use the civil court system to gain ownership of them. State law now stipulates that cash and property can only be seized by law enforcement and forfeited when the original owner is convicted of a criminal offense and prosecutors prove — in a criminal court — that the assets in question were related to the offense. But this important legislative change hasn’t stopped law enforcement in Albuquerque, the state’s largest municipality, from continuing with the practice. Calling it a “narrowly-tailored nuisance abatement law,” the city has continued to take vehicles from people who are arrested for driving while impaired or driving with a license that was suspended because of an earlier DWI — even if the vehicle doesn’t belong to the driver.

Now, more than two years after New Mexico banned civil asset forfeiture, there’s a possibility that Albuquerque will fall into line with the statewide effort to end the practice. During a mayoral candidate email forum last week, the Albuquerque Free Press asked nine candidates whether they would continue to defy the clear spirit of the state law — and seven said they would end it altogether.

Those in favor of putting a stop to the ordinance agree that cars should only been seized and forfeited if the vehicle’s owner is ultimately convicted. Several raised concerns that police are driven by profit motives, and that the current system violates due process. One candidate noted that car owners can suffer even though they didn’t commit the offense for which the car was taken. One candidate also said it is more difficult for low-income residents to get their property back — alluding to the reality that poor people often lack the financial means, time, and knowledge of the legal system to hire a lawyer who might cost more than the property itself.

According to the Albuquerque Journal8,369 cars were seized by the city between 2010 and April 2015. These seizures totaled $8.3 million that was funneled into the city budget. The news organization also found that people whose cars were taken were often presented with financially impossible choices in lieu of forfeiting the car for good: pay thousands of dollars upfront to get the vehicle back or fight for it in court while paying the cost of car storage for months. These choices are offered even if the car owner isn’t the accused offender.

“There are many ways to combat DWI, and the problematic features of civil forfeiture, while seemingly convenient and easy to overlook, do not create an effective, long-term, and fair solution to the problem,” candidate Gus Pedrotty said during last week’s forum. “As it stands, this is a punitive and regressive policy that is contradictory to our goal of having a restorative justice system — we should be wary of any policing-for-profit model.”

Despite the overwhelming inclination to end car seizures in the city, two candidates continued to support the practice. Wayne Johnson says he supports civil forfeiture but not policing for profit. He said he would suspend the program until there are more strict “parameters” for where the money goes. The other candidate, retired Albuquerque Police Department detective Michelle Garcia Holmes, says the program doesn’t go far enough.

“It is another tool in the toolbox for crime prevention,” she said. “I would like to see this practice be utilized in other cases as well, including drug and human trafficking cases.”

The mayoral election results could be a litmus test for the future of civil forfeiture in New Mexico. Albuquerque has already been sued two times for continuing the practice after state law was changed in 2015. The city’s position has been that the practice isn’t actually “civil asset forfeiture” at all, but rather “a narrowly-tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use committing DWI offenses, placing innocent citizens’ lives and property at risk.”

If one of the seven mayoral candidates in favor of ending the practice wins, Albuquerque could send a message to other cities in the state, including capital city Santa Fe, that civil forfeiture will no longer be tolerated. Such a move would bring New Mexico one step closer to truly ending the practice for good.


Thanks to Jake Sussman.

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Does childhood end at 18?

Does childhood end at 18?


If someone commits a crime days after turning 18, should he be treated like an adult or a child?

In two recent cases — Miller v. Alabama and Montgomery v. Louisiana — the U.S. Supreme Court held that life-without-parole should be reserved for the rare kid (defined as someone under 18) “whose crime reflects irreparable corruption,” citing the ability of youth to evolve and scientific discoveries about young adult brain development. “Children are different,” Justice Kagan wrote, neatly summarizing modern-day medical understanding and common sense attributable to anyone who knows a teenager.

But does 18 makes sense as an arbitrary cut-off? More courts across the country are saying no. After all, people under 18 cannot drink or rent a car. Experts say that the brain continues to develop profoundly between the ages of 18 to 22. And anyone with common sense who knows someone between 18 and 22 cannot reasonably argue that they are able to make the same judgments an adult would make.

In 2015, the Washington Supreme Court held in State v. O’Dell that the mitigating factors of youth can apply to defendants over 18. In a nutshell, this means that an adult defendant may argue for a less severe sentence because of his youth.

Sean O’Dell’s case was a prime example. Ten days after his 18th birthday, O’Dell raped a younger girl. (O’Dell maintains the sex was consensual.) Because he was charged with (and ultimately convicted of) second-degree rape, O’Dell faced a 6 to 8 years prison sentence as an adult under Washington law. At the sentencing hearing, O’Dell’s lawyer argued that, had O’Dell raped the victim just two weeks earlier, he would have been charged as a juvenile and sentenced to a juvenile detention facility for a much shorter amount of time.

The facts here supported looking at O’Dell as a kid. He was still in high school and was hanging out with high school classmates — he was not a predatory older man looking for young girls. He lived with his mother and was fond of video games. And, while none of this legally supports whether O’Dell should receive a lesser sentence, there is plenty of scientific evidence that adolescents have poor judgment and are unlikely to appreciate the consequences of their actions.

As a result, the Washington Supreme Court pointed out that the statutory prison sentences did not take age into consideration — an 18 year old is treated the same as a 45 year old as a 75 year old. In its opinion, the court cited to many of the same reasons relied upon by the U.S. Supreme Court: “But [the Legislature] could not have considered the particular vulnerabilities — for example impulsivity, poor judgment, and susceptibility to outside influences — of specific individuals. The Court places a great deal of weight on scientific evidence that was really not available less than a decade ago.

And this week, a Washington State Appellate Court held that the principles of O’Dell— that youth could be considered as a factor in resentencing — was enough of a change in the law to be retroactive. This means that the defendant in this case, Kevin Light-Roth, is entitled to a new sentencing hearing so that he can have the opportunity to present evidence of his youth. It’s important to remember that these cases are not making a blanket statement about whether individuals deserve lesser sentences — rather they are simply providing the opportunity for young individuals to present evidence that they may be less culpable than others.

As courts across the country face resentencings for inmates who were unconstitutionally condemned to die in prison as youth, there is hope that the arbitrary age cut-off of 18 may soon erode to allow for individualized sentencing.

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