Race and Class: A Randomized Experiment with Prosecutors

• Published date: 01 December 2019
• Author: Christopher Robertson,Shima Baradaran Baughman,Megan S. Wright
• Date: 01 December 2019
• DOI: http://doi.org/10.1111/jels.12235

Journal of Empirical Legal Studies

Volume 16, Issue 4, 807–847, December 2019

Race and Class: A Randomized Experiment

with Prosecutors

Christopher Robertson,*Shima Baradaran Baughman, and

Megan S. Wright

Disparities in criminal justice outcomes are well known, and prior observational research

has shown correlations between the race of defendants and prosecutors’ decisions about

how to charge and resolve cases. Yet causation is questionable: other factors, including

unobserved variation in case facts, may account for some of the disparity. Disparities may

also be driven by socioeconomic class differences, which are highly correlated with race.

This article presents the first blinded, randomized controlled experiment that tests for

race and class effects in prosecutors’ charging decisions. Case vignettes are manipulated

between subjects in five conditions to test effcts of defendants’ race and class status. In the

control condition, race and class are omitted, which allows baseline measures for bias and

pilot testing of a blinding reform. Primary outcome variables included whether the prose-

cutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and

the amounts thereof. With 467 actual prosecutors participating nationwide, we found that

race and class did not have detectable prejudicial effects on prosecutorial decisions. This

finding, contrary to the majority of observational studies, suggests that other causes drive

known disparities in criminal justice outcomes.

*Address correspondence to Christopher Robertson, Professor of Law & Associate Dean for Research and Innova-

tion, University of Arizona James E. Rogers College of Law; 1201 E Speedway, Tucson, AZ 85721; email:

robertson@email.arizona.edu. Baughman is Professor of Law, University of Utah College of Law and Presidential

Scholar; Wright is Assistant Professor of Law, Medicine, and Sociology, Penn State Law and Penn State College of

Medicine

Christopher Robertson thanks the University of Arizona for research funding, as well as Harvard Law School

and NYU Law School, where he worked on this project while a visiting professor. For helpful feedback, the authors

thank Jane Bambauer, Marc Miller, Wes Oliver, Chris Griffin, and participants at the 2018 Quantlaw workshop,

especially Jim Greiner, Jeff Fagan, John Donohue, and Lee Epstein. Amy Brown was an excellent research assistant.

The authors are thankful to all of the prosecutors nationally who participated in this experiment. IRB 69654

(University of Utah).; Shima Baradaran Baughman thanks Carissa Hessick, Andy Hessick, Sim Gill, Andrew Fer-

guson, Jeffrey Bellin, G. Jack Chin, Anne Traum, Frank Rudy Cooper, Alex Kreit, Brooks Holland, Sam Kamin, Jus-

tin Marceau, Erik Luna, Beth Cogan, Benjamin Levin, Donald Dripps, and L. Song Richardson for comments on

this project. The authors appreciate the comments of the Rocky Mountain Junior Conference, the Southwest Crim-

inal Law Conference, and the University of Utah for a faculty research grant that made this research possible.

Baughman is grateful for research assistance from Amylia Brown, Carley Herrick, Tyler Hubbard, Emily Mabey,

and Ross McPhail.; Megan S. Wright thanks Laureen O’Brien, Ellen Hill, Leann Jones, Danielle Curtin, and Joseph

Radochonski for research assistance. She also thanks Roseanna Sommers and Nicholas Sterge for methodological

feedback, as well as the Yale Law School librarians and faculty, especially Sarah Ryan and Issa Kohler-Hausmann,

for consulting on research design in the early stages of this project.

807

I. Introduction

We seek to understand the causes of the persistent and pervasive racial disparities in the

U.S. criminal justice system, and in particular whether they are perpetuated by the biases of pros-

ecutors, who have profound power and discretion in this system.

1

One potential mechanism for

racial disparities is the underlying socioeconomic disparities that are correlated with race.

2

Few

studies have explored socioeconomic bias in prosecutorial decisions, and there has been no

prior randomized, controlled study of prosecutorial decisions to tease apart race and class.

Observational research dominates this field, but causal inference is challenging, due

to race and class confounds and the difficulty of observing and coding the severity of the

underlying conduct and the strength of the evidentiary case. It is also challenging to tease

apart the underlying causal mechanism in a complex institution with several levels of selec-

tion and discretion involving police, prosecutors, defense attorneys, defendants, and judges

each making decisions about whether and how to proceed with a case. This article avoids

these problems by isolating a few variables and manipulating them systematically.

Of particular interest is the prosecutors’ very broad discretion in the initial charging

decision, since this discretion may reduce the efficacy of downstream policy reforms such

as sentencing guidelines, which have been enacted to reduce disparities in outcomes.

3

By

collecting hundreds of prosecutorial charging decisions about the same case, this article

explores how prosecutors use discretion in the initial charging decision and whether they

punish defendants of certain races or socioeconomic classes more than others.

It is also important to test upstream policy remedies, such as blinding prosecutors

to defendant race and class information, which our control condition allows.

4

Some

1

See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 2 (2012); Bryan

Stevenson, Just Mercy: A Story of Justice and Redemption 301 (2014); William J. Stuntz, The Collapse of AmericanCrim-

inal Justice 1 (2011); L. Song Richardson, Systemic Triage: Implicit Racial Bias in the Criminal Courtroom, 126 Yale

L.J. 862, 866 (2016); James Forman, Jr., The Black Poor, Black Elites, and America’s prisons, 32 Cardozo L. Rev.

791, 792 (2011); David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1283 (1995).

2

See Michele Benedetto Neitz, Socioeconomic Bias in the Judiciary, 61 Clev. St. L. Rev. 137, 137 (2013) (“socioeco-

nomic bias may be more obscure than other forms of bias, but its impact on judicial decision-making processes

can create very real harm for disadvantaged populations”); Jay M. Spears, Voir Dire: Establishing Minimum Stan-

dards to Facilitate the Exercise of Peremptory Challenges, 27 Stan. L. Rev. 1493 (1975) (“In our heterogeneous

society, socially economic factors are especially likely to create powerful prejudices ….”); Gwen Van Eijk, Socioeco-

nomic Marginality in Sentencing: The Built-in Bias in Risk Assessment Tools and the Reproduction of Social

Inequality, 19 Punishment & Soc’y 463, 475 (2016) (noting socioeconomic bias in sentencing).

3

Rachel E. Barkow, Sentencing Guidelines at the Crossroads of Politics and Expertise, 160 U. Pa. L. Rev. 1599,

1602 (2012) (“[sentencing] commissions could and should do more to address the relationship between guide-

lines and prosecutorial power …. Because some amount of prosecutorial discretion is necessary and inevitable”).

See also Kate Stith & Karen Dunn, A Second Chance for Sentencing Reform: Establishing a Sentencing Agency in

the Judicial Branch, 58 Stan. L. Rev. 217, 221 (2005); Russell D. Covey, Rules, Standards, Sentencing, and the

Nature of Law, 104 Cal. L. Rev. 447, 483 (2016).

4

Sunita Sah et al., Blinding Prosecutors to Defendants’ Race: A Policy Proposal to Reduce Unconscious Bias in the

Criminal Justice System, 1 Behav. Sci. & Pol’y 69, 72 (2015). See generally Jeffrey Fagan, Legitimacy and Criminal

Justice—Introduction, 6 Ohio St. J. Crim. L. 123 (2008).

808 Robertson et al.

prosecutors’ offices are beginning to experiment with blinding to reduce biases in or

increase perceived legitimacy of prosecutor decisions, but the reform has not been sys-

tematically studied.

5

This article proceeds as follows. Section II provides background on prosecutor deci-

sions and prior research on race and class. Section III describes our research methods.

Section IV sets out the results. Section V discusses the strengths and limitations of the

study, along with important implications.

II. Background

African Americans, or blacks, comprise 38 percent of all prisoners, though they constitute

only 13 percent of the national population.

6

Although some aspects of racial bias in the

United States have decreased over the past century, blacks are still imprisoned at almost

four times the rate of whites and receive longer prison sentences.

7

A variety of educa-

tional, economic, and cultural factors may contribute to these disparities, along with

implicit bias from decisionmakers such as legislators, police, prosecutors, judges, juries,

and parole boards.

The prosecutor may be the government official with the most unreviewable

power and discretion.

8

Afterthepolicechoosetoarrest a subject, the first point of

contact with a prosecutor is the decision to charge a defendant with a crime. Since

the vast majority of cases are resolved short of trial, a second key point of attention

is plea bargaining, which is also controlled by prosecutors.

9

5

Timothy Williams, Black People Are Charged at a Higher Rate Than Whites. What if Prosecutors Didn’t Know

Their Race? NY Times, June 9, 2019, https://www.nytimes.com/2019/06/12/us/prosecutor-race-blind-

charging.html.

6

QuickFacts, U.S. Census Bureau (July 1, 2017), https://www.census.gov/quickfacts/fact/table/US/PST045217;

BOP Statistics: Inmate Race, Fed. Bureau of Prisons (Feb. 24, 2018), https://www.bop.gov/about/statistics/

statistics_inmate_race.jsp. In 2016, approximately one in 88 blacks were in prison, compared to one in 565 whites.

See John Gramlich, The Gap Between the Number of Blacks and Whites in Prison Is Shrinking, Pew Research Ctr.

(Jan. 12, 2018), http://www.pewresearch.org/fact-tank/2018/01/12/shrinking-gap-between-number-of-blacks-and-

whites-in-prison/; American Fact Finder: 2016 Population Estimates, U.S. Census Bureau (July 1. 2016), https://

factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk.

7

M. Marit Rehavi & Sonja B. Starr, Racial Disparities in Federal Criminal Charging and its Sentencing Conse-

quences, 122 J. Pol. Econ. 1320, 1320 (2014).

8

Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev. 959, 959

(2009); Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty: The Need for the

Racial Justice Act, 35 Santa Clara L. Rev. 35 (1994).

9

See generally Sarah Ribstein, A Question of Costs: Considering Pressure on White-Collar Criminal Defendants,

58 Duke L.J. 857, 868 (2009); Wesley MacNeil Oliver & Rishi Batra, Standards of Legitimacy in Criminal Negotia-

tions, 20 Harv. Negot. L. Rev. 61, 67 (2015); George C. Thomas, Discretion and Criminal Law: The Good, the Bad,

and the Mundane, 109 Penn. St. L. Rev. 1043, 1043 (2005); Brandon K. Crase, When Doing Justice Isn’t Enough:

Reinventing the Guidelines for Prosecutorial Discretion, 20 Geo. J. Legal Ethics 475, 475 (2007); Nicole T. Amsler,

Race and Class: An Experiment with Prosecutors 809