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December 8, 2016

Fascinating accounting of considerable racial disparity in Florida sentencing

A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench."  The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:

Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.

Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.

Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.

In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.

“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”

The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.

Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.

No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:

• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.

• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.

• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.

• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.

Without checks to ensure equality, bias reigns.

Here are links to the other pieces in the series:

December 8, 2016 at 03:21 PM | Permalink


"The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination."

Is it? And how is that even possible given the fact of plea bargains. Also, does the report compare rates in the same jurisdiction?

and this: "even when their backgrounds are the same." How true is that? Drug possession can either be: (a) true drug possession for personal use or (b) pled down dealing. That should matter when it comes to sentencing.

Would be interesting to see some matched pairs--as is done in fair lending analysis.

Posted by: federalist | Dec 8, 2016 3:40:48 PM

Having breezed through the article, there are some interesting matched pairs, to say the least. My guess is that some Florida judges will not like being called out.

Some of the disparity appears to be attributable to appointed counsel vs. paid for counsel. That's the way the world works, and isn't going to change as long as there's a lawyers' guild.

It would be interesting to see recidivism of some of the guys given a break. Also, I wonder if some level of criminal history impacts the raw numbers. I doubt judges look too differently at career violent criminals who come before them.

If there is a pool of white criminals getting unjustified lenience, given that most crime victimization is intra-racial, it seems that judges deserve some serious criticism for that.

Posted by: federalist | Dec 8, 2016 4:15:03 PM

So, federalist, does this study support your urban discount theories or undermine them? Just curious.

Posted by: Doug B. | Dec 8, 2016 5:10:12 PM

I don't think it operates one way or another. Maybe Florida doesn't have one. But Chicago does. And ask an Indiana prosecutor about a Lake County rap sheet.

I didn't mean to suggest in my last that white victims are worth more, just that if judges are being lenient to white criminals, then the people in those jurisdictions should be harshly criticizing the judges for letting criminals off easy, and that future victims (predominantly white) have a legitimate beef. My sympathies are with ALL crime victims.

Also, pre-trial jail time is a matter of money, not necessarily race.

Like I said though, some judges seem to have issues--I wonder, however, was the lenience justified sometimes in that there was less recidivism? Did that white armed robber go straight? What about examples of lenience to black criminals?

Posted by: federalist | Dec 8, 2016 5:39:16 PM

It is shameful the way that federalist always tries to wiggle out of charges of racism even when the most blatant examples exist. It drives me nuts. The reason why it drives me nuts is because conceptually I agree with Roberts that the best way to stop discrimination by race is to stop discrimination by race. In order for that to work, however, it requires an HONEST assessment of when racism is still happening. Instead, what we see is that Robert's slogan is actually just an excuse to engage in willful blindness towards racism--it's not happening if we refuse to recognize it happening.

Posted by: Daniel | Dec 8, 2016 5:44:43 PM

Daniel, most of these studies are completely agenda-based. Look at the Paternoster study of the DP in Maryland--the disparities disappeared when one controlled for geography. If there are problems in Florida, by all means solve them, but I am not going to sign on to a blanket condemnation of the criminal justice system when the facts just aren't there.

Some of the examples are troubling to say the least--that I will grant. But then where are you guys with judges like Olu Stevens. His actions were worse than the "no humans involved" nonsense. But no one ever wants to talk about that in here.

My sense is that this article and research don't tell the whole story---the criminal justice system is an advocacy based system, and that is going to create different outcomes that ain't fair.

By the by, generally people in here HATE mandatory outcomes for crimes. Well, this is what discretion gets you.

Posted by: federalist | Dec 8, 2016 6:27:51 PM

"the criminal justice system is an advocacy based system, and that is going to create different outcomes that ain't fair."

Oh come on man. That is like saying employment is a merit-based system which is going to create outcomes that aren't fair ergo EEO laws are shit.

Just because life is unfair in general doesn't mean that is isn't socially worthwhile to make sure that there are specific parameters which it cannot be unfair on. We have--as a direct result of a civil war-decided that race is one of those things that no matter how unfair life is in general it won't be unfair on that basis. If an advocacy-based system is producing results that are unfair based upon race then it is a racist system and appeals to "that's the way the world works" as a defense to such a racist system is a non-starter.

Posted by: Daniel | Dec 8, 2016 8:17:45 PM

Daniel, there's a difference between disparity that's associated with other factors such as $$, see, e.g., OJ, and race itself (which is invidious). I suspect you know this, and I suspect you know that the idea of sentencing someone to additional time because he's black or white or whatever (or giving race-based lenience) is disgusting to me.

Posted by: federalist | Dec 9, 2016 11:06:45 AM

Couple things. One is to remind everyone that the florida guidelines system currently sets a minimum, and no maximum. Anything from min to stat max is not reviewable, only downward departures need to explain. Just for those used to fed guidelines. The other is to point out an interesting disparity in the graph on 3D degree felony sentencing. There is a racial disparity on sentencing of males by black judges, appears to be around 250 to 275 months. There is no such disparity among black females, but they would give both sentences of 450 months. My intuition is that the sample size for black judges makes it hard to compare, but I'm not doing research into individual actors... This weekend, anyway.

Posted by: Gray Proctor | Dec 10, 2016 2:09:32 PM

This is disturbing, but . . .

For those of you familiar with McCleskey v Georgia, we find that a number system, which should be precise, can be anything but, as with the David Baldus' Sentencing study, which even miscalculated the subject McCleskey case, by Baldus' own number system.

The, just look at how this one paragraph is written:

"fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. "

They fail to mention the demographics in the Fla. bar.

Nationally (2010), the ABA reported 88% of lawyers were white, 5% black.

Then there is this:

"White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments."

They fail to tell us what "more balanced punishments" are, which could be 19% more time.

There are red flags, like that, which MIGHT signal some problems with the study.

Get a methodologist, like Joe Katz, who peeled away the huge problems within Baldus study

Posted by: Dudley Sharp | Dec 11, 2016 7:54:48 AM

I am a mother of a son that was sentenced in Florida to 20 years minimum mandatory.17 at the time.

Posted by: Mary Morss | Mar 17, 2017 2:09:37 AM

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