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February 10, 2012

A judicious perspective on recent federal racial sentencing disparity research

I am extremely plesed and grateful to have received this morning an e-mail from Judge Richard G. Kopf, Senior United States District Judge for the District of Nebraska, with the following comments about some recent posting on this blog (which he kindly gave me permission to post here [with my links inserted]):

Several quick observations about the racial disparity study mentioned in your post entitled “Don’t Blame Judges for Racial Disparity.”  I have now had a chance to read “Racial Disparity in Charging.”

* Kudos to Professors Rehavi and Starr for their hard and good work.

* It would have been helpful to provide data summaries showing raw numbers.

* The significance of this study is modest from a policy perspective because, as the authors indicate, 80% of black men in the study never faced a statutory minimum. (See page 22 the download from SSRN.)  Since we have no idea of the absolute numbers involved of the black men who are said to be impacted, it is very hard gauge whether a policy maker should care.

* The study appears not have included drug and child pornography cases. (Id.)  If so, the missing data is a large impediment to making sensible generalizations.  Such an omission, if true, also calls into question most, if not all, of the statistical conclusions drawn from the study if one is concerned with the whole universe of criminal cases in the federal system.  For example, recognizing that drugs and child pornography comprise a large and high profile segment of the federal criminal universe, one might suppose that black male defendants may face more mandatory minimums charges in drug cases, but one might also suppose that white males face more mandatory minimums in kiddie porn cases.  In any event, one does not know.

* The charging of a mandatory minimum is frequently ameliorated after sentencing by virtue of a Rule 35(b) motion by the government.  So far as I can tell, the study does not try to grapple with that fact.  In some districts with heavy criminal caseloads (like Nebraska), a Rule 35(b) motion, rather than a motion prior to sentencing, is the norm. Studies that don’t address that issue or assume that Rule 35(b) motions will be filed in the same proportion as departure motions prior to sentencing may be quite misleading.

Some recent related posts:

February 10, 2012 at 01:31 PM | Permalink


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Thank you Judge Kopf, thank you Doug Berman.

Posted by: Bill Otis | Feb 10, 2012 2:01:55 PM

"One might suppose that white males face more mandatory minimums in kiddie porn cases."

Huh? Why would one suppose that? Is there some evidence that prosecutors give kiddie porn defendants a break if they are black?

Posted by: ? | Feb 10, 2012 2:06:14 PM

Federal prosecutors and federal judges, who have personally participated in government action that is challenged as racially discriminatory (in its design and/or effect), may feel impelled to quibble with the challenge.

Posted by: Calif. Capital Defense Counsel | Feb 10, 2012 4:16:07 PM

? :

The reality is that in the federal system, the great majority of kiddie porn defendants are white while the majority drug defendants are black.

Posted by: mjs | Feb 10, 2012 4:44:36 PM

mjs - And why is that, I wonder? Are there stats showing that black people commit more drug crimes than white people? Or stats that show that white people commit more child porn crimes than black people?

Posted by: ? | Feb 10, 2012 5:08:58 PM

It's really great to get a judicial perspective; this will help us as we continue to work on the final version of the study. Thanks so much, Judge Kopf! A few quick thoughts:

First, that's right, due to data availability the study is limited to violent offenses, weapons offenses, property/fraud, and all regulatory/public order offenses other than child porn. That's still a lot of cases--and worth studying, I think!--but it's true that we can't tell you what happens in drug or child porn cases.

Second, while ours is a sample with relatively low frequency of mandatory minimums, we actually think that makes it more remarkable that the disparity in the use of these charges alone is capable of explaining almost all of the otherwise-unexplained racial disparity in sentences for our entire sample.

Third, very interesting point about Rule 35(b) motions; I'd love to see numbers on how frequent they are across the country. Here's one thought, though: Some recent research suggests that whites are more likely to receive substantial assistance departures than blacks (see Spohn & Brennan 2011). Although this was not a focus of our research, this was also true in our sample. If that is true of 5K1.1 motions, then I don't really see a reason to expect the *reverse* pattern in post-sentencing Rule 35(b) motions--which is what would be necessary for the racial disparity in mandatory minimums' ultimate sentencing implications to be reduced by Rule 35(b) motions. Of course, we can't be sure about anything we don't have data on.

Thanks again!

Posted by: Sonja Starr | Feb 10, 2012 5:22:50 PM

Sonja - Why isn't data available on drug and child porn offenses? That seems really odd.

Posted by: ? | Feb 10, 2012 5:32:43 PM

It's not that the cases are completely missing; it's that the charge data have some key ambiguities that made us unable to code their severity with sufficient reliability. The problem with drugs is that for the years of our sample, we don't have a reliable way to tell what drug quantity the prosecutor was alleging at the time of initial charging--and quantity is crucial to understand the severity of drug charges. In child porn cases, the data coding doesn't distinguish between different subsections of the relevant statutes, so we can't distinguish, for instance, receipt from simple possession cases (a key difference).

Posted by: Sonja Starr | Feb 10, 2012 6:03:19 PM

Professor Starr:

Did you or your co-author find that federal prosecutors were motivated by racial animus when they brought charges carrying mandatory minimums against black defendants?

I'm not angling for a fight here but I am curious about this obviously important question.

Bill Otis
Adjunct Professor of Law
Georgetown Law Center
(former AUSA)

Posted by: Bill Otis | Feb 10, 2012 6:20:32 PM

Bill, no, definitely not--we could never make such a claim, as our data don't tell us anything about motives and don't allow us to rule out all other possible contributing factors (and we have disclaimers about that in the paper). What we find is a fairly large difference in mandatory minimum rates even after controlling for the factors we are able to observe in the data (including the arrest offense, gender, age, district, and criminal history). The reasons for those gaps are open to interpretation (and perhaps further inquiry using different methods); but policymakers might be interested in racial gaps like these even if no animus is involved.

Posted by: Sonja Starr | Feb 10, 2012 6:55:22 PM

Bill -

When you list your title, you shod include two additional lines, right below Adjunct Professor:

1) Supporter of the Death Penalty for 16-year-olds
2) Voted Twice for George W. Bush

Posted by: Calif. Capital Defense Counsel | Feb 10, 2012 8:38:09 PM


Thanks very much for your prompt reply. Let me ask one further question if I might. Did you find any reliable anecdotal evidence, or do you know of anyone who has found such evidence, that federal prosecutors are motivated by racial bias?

Posted by: Bill Otis | Feb 10, 2012 9:54:44 PM


Why should I elaborate on my background when you won't so much as give your name?

Posted by: Bill Otis | Feb 10, 2012 9:56:36 PM


Notwithstanding your having forfeited the right to ask me to post biographical data, I'm going to humor you. This is because I'm Mr. Nicey. Aren't you grateful?

Uh, OK, never mind about that one.

Bill Otis

Supporter of Stanford v. Kentucky (along with JFK appointee Byron White, and that notorious right wing kook, Sandra Day O'Connor).

Voted for George W. Bush (like 50,456,000 people the first time, and 60,040,600 the second time).

Also twice voted for George H.W. Bush, and honored to have served in his administration as Special White House Counsel.

Posted by: Bill Otis | Feb 10, 2012 10:20:04 PM

Very nice of the judge and professor to share their thoughts on this important subject here. Having read Professor Starr's paper, I know that she and her co-author expressly disavowed the conclusion that the prosecutor-driven disparity is caused by racial animus. What I don't understand is what those peddling the line about racial disparity increasing under advisory guidelines (and more judicial discretion) are saying about judges.

Posted by: Thinkaboutit | Feb 10, 2012 11:11:28 PM

Thinkaboutit --

For what it's worth, my experience is that neither federal judges nor prosecutors are motivated by racial animus.

Posted by: Bill Otis | Feb 10, 2012 11:32:09 PM

Professor Starr,

Thank you very much to responding to my review of "Racial Disparity in Charging."

* Initially, keep up the good work. I really appreciate it.

* I agree with you that your sample of cases was worth studying. That said, since drugs and child pornography cases comprise such a large part of the typical federal docket and since those cases properly capture the attention of policy makers, one should be careful about generalizing to the entire universe of federal cases. You know this, but others may not.

* I think it would be good for you to reveal the absolute number of black male defendants you think were impacted by the charging decisions in your study. That would give a sense of scale.

*Regarding Rule 35(b) motions, where do I start? The Sentencing Commission does not capture that data. This is a huge problem not of your making.

The foregoing data problem recognized, don’t bet the farm that a “reverse pattern” won’t show up assuming you could capture the data. Because the typical cooperator in my experience can’t get his or her cooperation done by the time of sentencing and prosecutors are properly leery of giving away a motion until the “fat lady has sung,” drawing inferences based upon 5K motions is really risky. In other words, 5K motions may be the exception and not the rule--that is, you would be sampling a small fraction of the relevant universe. In this regard, even a relatively modest “reverse pattern” might change your statistics. I can’t do the math because I don’t have your data (and my statistical training is years in the past), but it would be fun to do some runs using “dummy” numbers for Rule 35b motions. You might be surprised.

Let me end by again complimenting you and your colleague for the important work you both are doing. It is worth the effort.


Richard G. Kopf
Senior United States District Judge

Posted by: Richard Kopf | Feb 11, 2012 10:29:16 AM

I am often amazed at the complete lack of self-awareness some on this blog have. Specifically, that someone could say this one day:

"Apparently, rational and sober exchanges with SC, Federalist, and TarlsQtr are simply not possible."

And then, the very next day in another thread say:

"When you list your title, you shod include two additional lines, right below Adjunct Professor:
1) Supporter of the Death Penalty for 16-year-olds
2) Voted Twice for George W. Bush"

CCCP may be the first circus clown in history to get paid $150 per hour.

Posted by: TarlsQtr | Feb 11, 2012 11:57:15 AM

TarlsQtr --

"CCCP may be the first circus clown in history to get paid $150 per hour.

Do you happen to know how much Joe Biden makes?

Posted by: Bill Otis | Feb 12, 2012 1:54:23 AM

Why are Bill and his lickspittles, like TarlsQtr, defensive about 1) their support of the death penalty for 16-year-olds, and 2) the fact that they twice voted for George W. Bush?

Do they both display posters in their homes of Bush wearing the cod-piece on the aircraft carrier under the "mission accomplished" banner?

Do they both think 16-year-olds should be allowed to drink alcohol, vote, and attend R-rated movies alone.

Does Bill support lying the country into war?

Did Bill take part in the effort to get Harriet Miers on the Supreme Court?

Did Bill take part in concocting the "justification" for torture and the appointment of Jay Bybee to the 9th Circuit? (Imagine arguing an 8th Amend. claim, as I have, before torture-supporting Judge Bybee.)

Why do full-throated defenders of all prosecutorial action, i.e., Bill and TarlsQtr, willfully blind themselves to the historical discrimInation against African Americans that pervades our criminal justice system? Why are they down with the old 100:1 and the new 18:1 ratios that discriminate against Blacks in crack cases?

Why do they complain about the payment of court-appointed defense attorneys, who, unlike taxpayer funded prosecutors and judges, typically do not receive extensive benefits, and who otherwise are not as well-paid as their prosecution-team foes?

Posted by: Calif. Capital Defense Counsel | Feb 12, 2012 10:58:17 AM


Please go and tell us about "rational and sober debate" again. It has been a rough day (doing work on a Sunday) and I could use the laugh.

And as far as your "list", nearly every one is a fallacy, as you "assume the premise" of each.

I would think that even a bad lawyer would know that he has to support a premise. CLAIMING that discrimination pervades the CJS is something that a limited and immature high school student does. PROVING (or at least supporting) the premise is something that an intelligent and college educated attorney does.

Perhaps you got your degree from Nikki's Upstairs Law School and Massage Parlor?

With all due respect (none), you make SC's plans for the law profession more and more attractive. I can actually picture you running after an ambulance like a dog chasing a '67 Chevy.

Posted by: TarlsQtr | Feb 12, 2012 1:19:34 PM

Bill stated: "Do you happen to know how much Joe Biden makes?"

No, but at least he is a "happy clown" with all those gaffes. He makes me laugh on occasion. CCCP just makes me feel pity for him and those he defends. Sad clowns are the worst.

Posted by: TarlsQtr | Feb 12, 2012 1:22:11 PM


I would suggest that you get off the juice, but it would be futile advice.

There is one question of yours that's worth answering: "Why do they complain about the payment of court-appointed defense attorneys, who, unlike taxpayer funded prosecutors and judges, typically do not receive extensive benefits, and who otherwise are not as well-paid as their prosecution-team foes?"

Not one single time have I "complained" about taxpayer funding of indigent defense attorneys. To the exact contrary, I have said more than once on this blog that I support INCREASED compensation to court-appointed attorneys, both because, in many states, indigent counsel don't get what their efforts are worth; and because underpaid lawyers tend to do lousy work, meaning that an even bigger bill has to be pain on the other end in the litigation about IAOC.

Do you plan to apologize for lying about my position? Didn't think so.

What I have said is what any sensible person thinks, to wit, that the established right to effective assistance of counsel is not the right to UNLIMITED FUNDS going to the defense, and that, in light of the financial squeeze that will affect and is affecting all other parts of the criminal justice system, reasonalbe caps can and should be placed on the amounts taxpayers should be required to fork over for defense work.

P.S. While in the government, I never made anything close to the $145/hour you brag about here. Thus your whining about making less is just more deceit.

Posted by: Bill Otis | Feb 12, 2012 2:10:22 PM

Tarls - Please state your real name in future comments. It really upsets Bill when people make nasty remarks about others without giving their real names.

Posted by: I feel sorry for Bill | Feb 13, 2012 12:30:58 PM

I feel sorry for Bill --

But I know his real name, and have for years. Wanna tell us yours?

Posted by: Bill Otis | Feb 13, 2012 4:44:42 PM

Bill --

I will as soon as Tarls tells us his. I have a feeling I'll be waiting awhile.

Posted by: I feel sorry for Bill | Feb 13, 2012 9:35:02 PM

I feel sorry for Bill --

Wait all you like. In the meantime, if you have any analysis relevant to the subject matter of this thread, feel free. It's not against the rules to discuss issues instead of persons.

Posted by: Bill Otis | Feb 14, 2012 3:26:49 AM

Bill --

LOL at your joke that anyone other than you started the rants (which are person, not issue-related) about people not using their real names on this blog.

Posted by: I am amused by Bill | Feb 14, 2012 1:52:03 PM

Amused --

The virtue of using one's real name seems to be realized, if not by you, then by Mark Pickrell, Jonathan Edelstein, Mark R. Levine, Soronel Haetir, Kent Scheiddeger, Sonja Starr, Richard Kopf, Marc Shepherd and numerous others on this blog. It has nothing to do with individuals. It's the widely recognized principle that people are more responsible and behave better when they are willing to identify themselves with what they write.

And if you need to be amused by something, try getting amused by your effort to make a virtue of cowardice.

In the meantime, I repeat -- if you have any analysis relevant to the subject matter of this thread, feel free. Do you?

Posted by: Bill Otis | Feb 14, 2012 5:42:09 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB