HOW JUDGES THINK ABOUT RACIAL DISPARITIES: SITUATIONAL DECISION‐MAKING IN THE CRIMINAL JUSTICE SYSTEM*

• Date: 01 May 2016
• Published date: 01 May 2016
• DOI: http://doi.org/10.1111/1745-9125.12106

HOW JUDGES THINK ABOUT RACIAL DISPARITIES:

SITUATIONAL DECISION-MAKING IN THE CRIMINAL

JUSTICE SYSTEM∗

MATTHEW CLAIR and ALIX S. WINTER

Department of Sociology, Harvard University

KEYWORDS: race, racial disparities, criminal justice, courts, judges

Researchers have theorized how judges’ decision-making may result in the dispro-

portionate presence of Blacks and Latinos in the criminal justice system. Yet, we have

little evidence about how judges make sense of these disparities and what, if anything,

they do to address them. By drawing on 59 interviews with state judges in a Northeast-

ern state, we describe, and trace the implications of, judges’ understandings of racial

disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in

our sample attribute disparities, in part, to differential treatment by themselves and/or

other criminal justice officials, whereas some judges attribute disparities only to the

disparate impact of poverty and differences in offending rates. To address disparities,

judges report employing two categories of strategies: noninterventionist and interven-

tionist. Noninterventionist strategies concern only a judge’s own differential treatment,

whereas interventionist strategies concern other actors’ possible differential treatment,

as well as the disparate impact of poverty and facially neutral laws. We reveal how the

use of noninterventionist strategies by most judges unintentionally reproduces dispari-

ties. Through our examination of judges’ understandings of racial disparities through-

out the court process, we enhance understandings of American racial inequality and

theorize a situational approach to decision-making in organizational contexts.

For decades, scholars have been concerned about the disproportionate presence of

racial minorities in the American criminal justice system. Although a large proportion

of racial disparities can be explained by differences in criminal offending rates (Sampson

and Lauritsen, 1997), many studies have found that Blacks and Latinos also are treated

∗For their helpful comments, the authors thank Lawrence D. Bobo, Mich`

ele Lamont, Devah Pager,

William Julius Wilson, Asad L. Asad, Caitlin Daniel, Nina Gheihman, Hope Harvey, Anthony

Jack, Jasmin Sandelson, Alba Villamil, and Nathan Wilmers. The authors are also grateful to

Rosemary Gartner and the anonymous referees for their careful reading and feedback. Finally,

the authors are indebted to the court officials, court administrators, and legal scholars who have

shared their confidence, time, and resources. This research was supported by grants from the Cen-

ter for American Political Studies (Harvard University), the Program in Criminal Justice Policy and

Management (Harvard Kennedy School), and the Harvard University Department of African and

African American Studies. The first author also acknowledges support from the National Science

Foundation Graduate Research Fellowship. Any findings and opinions expressed in this article are

those of the authors and do not necessarily reflect the views of the National Science Foundation.

Direct correspondence to Matthew Clair, Department of Sociology, Harvard University, William

James Hall, 33 Kirkland Street, 5th Floor, Cambridge, MA 02138 (e-mail: clair@fas.harvard.edu).

C2016 American Society of Criminology doi: 10.1111/1745-9125.12106

CRIMINOLOGY Volume 54 Number 2 332–359 2016 332

HOW JUDGES THINK ABOUT RACIAL DISPARITIES 333

more punitively than similarly situated Whites from arrest to sentencing, net of legally

relevant factors (Spohn, 2013). By relying primarily on administrative data, researchers

have theorized how court officials’—in particular, judges’—implicit biases and cultural

stereotypes might impact their decision-making and, consequently, reproduce racial

disparities (Albonetti, 1991; Bridges, Crutchfield, and Simpson, 1987; Steffensmeier,

Ulmer, and Kramer, 1998). Yet, researchers have little knowledge about how judges make

sense of the social problem of racial disparities and how, if at all, they work to address the

problem.

This article considers judges’ subjective understandings of the causes of racial dispari-

ties in the criminal justice system, as well as the strategies judges report using to account

for racial disparities in their decision-making at multiple points of the criminal court pro-

cess. Through inductive analysis of in-depth, semistructured interviews with 59 judges

from what we generically call “Northeast State,” we reveal the social processes that judges

feel constrain their decision-making at four stages of trial. We find that each judge’s strate-

gies with respect to racial disparities are determined by the situational context of each

stage of trial and may not mitigate the factors that the judge believes to be the cause of

racial disparities in the system more broadly. Consequently, we argue that it is not simply

judges who should be understood as contributing to or alleviating racial disparities, but

also their situational and problem-specific strategies should be considered in explanations

of racial disparities.

Our analysis enhances explanatory models of racial disparities in criminal justice out-

comes by shifting analytic and theoretical attention away from individual judges and

toward the context and processes surrounding judges’ decision-making at multiple stages

of the court process. We discuss the implications of our situational approach to decision-

making for the identification of instances in which judges may reduce racial disparities,

as well as for research on decision-making in the courts and in other organizational

contexts.

RACIAL DISPARITIES

Blacks and Latinos are disproportionately represented in the American criminal jus-

tice system relative to their representation in the general population (Travis, Western,

and Redburn, 2014). Researchers have debated the relative weight of two primary expla-

nations of racial disparities (Blumstein, 1982), which we refer to as disparate impact and

differential treatment (Pager and Shepherd, 2008: 182). The disparate impact explanation

suggests that, relative to the racial/ethnic composition of the population, larger propor-

tions of Blacks and Latinos are selected into the criminal justice system either because

they offend at higher rates (often attributed to racial differences in economic resources

or cultural mores; Sampson and Lauritsen, 1997) and/or because they are disproportion-

ately susceptible to the sanctions of facially neutral laws and practices (Tonry, 1995; Tonry

and Melewski, 2008). The differential treatment explanation suggests that racial dispari-

ties arise from overt or implicit discriminatory treatment of Blacks and Latinos by law

enforcers, such as police officers, prosecutors, judges, and probation officers (Beckett,

Nyrop, and Pfingst, 2006; Spohn, 2013).

Although these two explanations are not mutually exclusive and findings with regard

to the relative weight of each are mixed (Spohn, 2013; Tonry, 1995), recent research