Mimesis Law
15 August 2020

Implicit Bias In Florida Sentencing

December 15, 2016 (Fault Lines) — Judge Mark Bennett has written a number of posts about implicit bias in sentencing. A recent article (part of a larger series) in the Sarasota Herald Tribune took a comprehensive look at racial sentencing disparities in Florida criminal cases. Statistically, it doesn’t look good:

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.

[…] 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.


What makes the statistics particularly damning is the point system used to quantify the severity of the crime and the defendant’s criminal history, which gives a basis for comparison across cases. In other words, since the point score is calculated on a race-neutral basis, and the expectation is that defendants with similar points should get similar (if not equal) results. Not so much:

Across Florida, when a white and black defendant score the same points for the same offense, judges give the black defendant a longer prison stay in 60 percent of felony cases.

For the most serious first-degree crimes, judges sentence blacks to 68 percent more time than whites with identical points.

For burglary, it’s 45 percent more.

For battery, it’s 30 percent.

Anecdotally, it doesn’t look good either:

In Citrus County, Leroy Waters scored 4.6 points when convicted of driving with a suspended license for the third time — a felony. Waters obtained a public defender and signed a plea agreement that included jail time.

Judge Richard Howard sentenced the 42-year-old black man to 89 days in county lockup.

When Paul Penninger was busted for the same charge, he also went before Judge Howard. He used a court-appointed lawyer, pleaded no contest and scored a matching 4.6 points.

The agreement called for no jail time, so the judge took it easy on the 48-year-old white man, sentencing him to a year on probation.

The obvious response to accusations of bias on the part of the judges is that the majority of sentences are set by plea bargain, and the judges are simply signing off on them. Thus, the racial onus would lie elsewhere, such as the prosecutors (who presumably make worse offers to black defendants, whether consciously or unconsciously) or defense attorney (who presumably aren’t fighting as hard for black defendants, whether consciously or unconsciously).

In a follow-up article, the Tom Lyons of the Herald-Tribune points out the flaws in that reasoning:

Sorry, but no. No matter how much weight that plea deal explanation carries, it is still no excuse for the judges, for several reasons.

The big reason: Judges aren’t forced to accept negotiated deals. Yet some strongly tend to – and rarely reject one. Others are known for balking, as they are supposed to when they see cause.

True enough, if we assume for the sake of argument that black defendants are coming off worse in plea negotiations despite being similarly situated in criminal history and the severity of their crimes; this is something that judges have to address, along with prosecutors and defense attorneys. That’s why we pay them the big money and have to stand up when they enter the courtroom.

Lyons also asks some incisive questions about those other parties:

Publicly paid defense lawyers face well-known problems defending large numbers of clients, and they feel pressure to get most clients to agree to reasonable plea deals. That’s no secret.

So shouldn’t judges seeking a sentencing bias explanation also raise questions about public defenders? Is it possible even the most supportive but over-loaded defense lawyers are more prone to see some white defendants as worthy of extra effort and time and hard bargaining?

That is a tough question, and a good one. It also cuts to the core of the entire issue of implicit bias. When I read that sentence, I was initially dismissive. When I was a PD, I fought just as hard for my black clients as my white ones. I know this, in my gut. This isn’t because of any particular virtue, racial or otherwise, on my part. It was because I took pride in being good at my job (or at least trying to), and getting an acquittal, or a dismissal, or an outstanding sentence fed my ego. And the race of who benefitted from my efforts has never mattered to me.

But if someone were to analyze every case I’ve ever worked on, would there be a statistically significant difference in outcomes between my white and black clients? I hope not. I don’t think there would be. That doesn’t change the fact that I know I don’t have any racial bias. And what goes for me could just as easily for a judge, a prosecutor, or any other player in the justice system. That’s why it’s called implicit bias.

In any case, the entire series is well-researched, well-written, and fulfills Greenfield’s First Commandment: it doesn’t make people stupider. If you’re interested in criminal justice issues and have the time, it’s definitely worth a read.

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