Can an Expert Opinion Mitigate Racially Biased Diversion Decisions? An Empirical Examination in the Context of Re-Offense Risk Assessment

• Published date: 01 February 2025
• DOI: http://doi.org/10.1177/00938548241288232
• Author: Riley M. Davis,Ashley B. Batastini,Donald Sacco,Eric R. Dahlen,Craig A. Warlick,Natalie Anumba,Brittany Young
• Date: 01 February 2025
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2025, Vol. 52, No. 2, February 2025, 163 –180.

DOI: https://doi.org/10.1177/00938548241288232

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© 2024 International Association for Correctional and Forensic Psychology

163

CAN AN EXPERT OPINION MITIGATE

RACIALLY BIASED DIVERSION DECISIONS?

An Empirical Examination in the Context

of Re-Offense Risk Assessment

RILEY M. DAVIS

The University of Southern Mississippi

ASHLEY B. BATASTINI

Swinburne University of Technology

DONALD SACCO

ERIC R. DAHLEN

University of Southern Mississippi

CRAIG A. WARLICK

Texas Tech University

NATALIE ANUMBA

University of Massachusetts Medical School

BRITTANY YOUNG

The University of Memphis

Using a vignette-based experimental design, this study tested whether the racial or ethnic identity of a justice-impacted person

influences jury-eligible individuals’ perceptions of post-conviction risk, placement (incarceration vs. community supervi-

sion), and need for mandated treatment. Furthermore, we examined whether the inclusion of data from a reoffense risk tool

could mitigate racial bias. Participants recruited through Amazon’s MTurk (N = 448) were randomly assigned to conditions

varying by race/ethnicity of an examinee (Black, Latino, White) and if/how risk assessment data were included (no risk data,

risk data only, and risk data reported by a qualified examiner). There was no statistically significant effect of the examinee’s

racial/ethnic identity on ratings of reoffense risk or placement decisions; however, the Black examinee was more likely to be

mandated with treatment. Regardless of examinee identity, participants exposed to risk information proffered by an expert

more often calibrated their risk decisions to the examinee’s actual risk level.

Keywords: racial bias; re-offense; risk assessment; court diversion; forensic mental health assessment

Since the 1970s, the U.S. prison population has grown by 700% (American Civil Liberties

Union, 2018), with Black individuals representing 32% of the state and federal prison

AUTHORS’ NOTE: We have no known conflicts of interest to disclose. Correspondence concerning this article

should be addressed to Ashley B. Batastini, Centre for Forensic Behavioural Science, Swinburne University of

Technology, 1/582 Heidelberg Road, Alphington, Victoria 3078, Australia; e-mail: abatastini@swin.edu.au.

1288232CJBXXX10.1177/00938548241288232Criminal Justice and BehaviorDavis et al. /

research-article2025

164 CRIMINAL JUSTICE AND BEHAVIOR

population, while White and Hispanic individuals represent 31% and 23%, respectively

(Carson, 2023). The disparity becomes clearer when considering the U.S. Census Bureau

(2021) data showing that Black and Hispanic individuals make up approximately 12.4%

and 18.7% of the U.S. population, respectively; White individuals account for 61%. Some

of the disparity is likely related to the unintended consequences of criminal justice policies

and legislation (e.g., the War on Drugs) enacted throughout the late 20th century (Anti-Drug

Abuse Act, 1986); however, there is evidence to suggest that disparities result more directly

from the color of a person’s skin.

RACIAL AND ETHNIC BIAS ACROSS STAGES OF THE CRIMINAL LEGAL SYSTEM

The disproportionality of historically minoritized racial and ethnic groups involved in

the legal system could be attributed to myriad factors occurring at any point during the legal

process. Factors such as proactive policing policies, poverty, and neighborhood character-

istics that are more prevalent in Black and Hispanic communities may contribute to an

individual’s likelihood of arrest (Andrews & Bonta, 2017). Indeed, meta-analytic results

showed support that racially minoritized groups are more likely to be arrested than Whites,

with the average probability of arrest for White people estimated at .20 compared to .26 for

racially minoritized people (Kochel et al., 2011). A study conducted on the Stop-Question-

Frisk strategy used by the New York Police Department found that Black and Hispanic

people are subjected to higher rates of these unconstitutional stops (53.95% and 31.4%)

than White people (9.61%; Marrow et al., 2017).

Once a prosecutor decides to press charges following an arrest, defendants typically

either: (1) accept a plea deal (if offered), or (2) proceed to trial. Approximately 97% of

criminal cases are resolved through plea bargains (National Association of Criminal Defense

Lawyers, 2018). Kutateladze and colleagues (2014) found that Black and Hispanic people

are not only more likely to be detained pre-trial (47.8% and 14.4%, respectively) but also

more likely to receive a custodial plea offer (69.8% and 21.2%, respectively) over a com-

munity-based alternative than their White counterparts. Despite the smaller proportion of

criminal cases that go to trial, racial bias during the trial phase can have a significant impact

on the differential administration of justice, particularly given that juries may not be repre-

sentative of the community from which they are selected (Lehman & Smith, 2013).

Not only are prosecutors responsible for bringing or dropping criminal charges against

an individual and can offer or rescind plea deals, but they also often have the decision of

recommending diversion to the presiding judge (i.e., ordering an individual to a specialty

court program within the community in lieu of traditional sentencing that may involve

incarceration; American Bar Association [ABA], 2007). Several empirical studies have

evaluated the potential bias in prosecutorial and judicial decision-making; however, not

always in the direction one might expect. In domestic violence cases, for example, Romain

and Freiburger (2013) found that Black and Hispanic men were more likely to have charges

against them dropped than White men or women of any racial/ethnic background.

Conversely, Wu (2016) found that White defendants were less likely to be charged or pros-

ecuted for similar offenses than defendants of color. With respect to post-conviction com-

munity placement decisions, Schlesinger (2013) found White defendants were more likely

to be granted pretrial diversion than Black or Latino defendants. In Bailey et al. (2020),

judges were more likely to require Black probationers to attend anger management therapy