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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.