The profound racial and ethnic disparities found in the criminal justice system is something all actors in the system—including judges—must take responsibility for and take on. You might be familiar with the startling statistics that paint a bleak picture of the kinds of people we are locking up. A 14-year-old African American boy today—such as my grandson—has a one-in-three chance of serving time behind bars in his lifetime. A white 14-year-old has just a 6% chance. And once behind bars, the disparities worsen—African Americans in federal prison for drug offenses were found to serve an average of 58.7 months; white prisoners serve a similar average time—slightly less than 62 months—for violent offenses.
Though racial disparities can be found at nearly every stage of the criminal justice system, they are especially pronounced in our sentencing practices. Black offenders have odds of being sentenced to incarceration that are 34% higher—and when sentenced, receive sentences that are 17% longer—than white offenders in similar relevant legal circumstances. Latino offenders experience even more profound disparities: 45% higher chances of incarceration and 35% longer sentences than their white counterparts.
Behind these statistics lie real people—fathers, brothers, daughters, and sisters—and studies consistently demonstrate that the disproportionate number of African Americans locked up does not result from any inherent greater criminality on their part. Instead, these disparities result from the cumulative impact of decisions made during various stages of the system, from the laws that are passed that criminalize certain conduct, to the sentencing decisions that are meted out, mainly by judges.
Many of the racial and ethnic disparities that appear at the back end of the criminal justice system are actually a byproduct of those that become apparent at the front end. The disparities produced by sentencing laws, in other words, compound the disparities that are already baked into the criminal justice system at nearly every step of the process—including pretrial stages. While no evidence exists of a difference in bail amounts set for black and white defendants, blacks have 44% higher odds of being denied bail entirely and kept in jail pretrial than whites with similar legal circumstances. And even when they are offered release through financial bond, they often cannot pay it. Recent New York City jail data—where nearly 90% of those incarcerated are black or Latino—showed that more than half of people held in jail until their cases were resolved remained there because they couldn’t afford bail of $2,500 or less. There are, however, promising reforms being made to pretrial practices around the country—just this week, New York City announced a plan to eliminate monetary bail for many low-level offenders held in jail.
There is no singular solution to reducing racial disparities in the criminal justice system. The problem is complex and requires lawmakers and elected or appointed executive branch policymakers to implement a host of steps that can work together interactively to reduce the injustices faced by people of color. Judges play a vital role in confronting these disparities, not only because of their involvement in sentencing decisions, but also because of their influence in a defendant’s pretrial experience—for instance, judges often have discretion in setting release conditions, including, if necessary, bail amounts.
Judges, like all who are involved in the effort to reduce our overuse of incarceration, should broaden their perspectives to include a focus on pretrial stages. A proper reading of judicial ethics norms not only permits judges’ involvement in this effort, but—as judges are mandated to ensure the equal application of the law to all and to contribute to civic understanding of the imperative of fair and impartial justice—commands it.