Does Racial Balance in Workforce Representation Yield Equal Justice? Race Relations of Sentencing in Federal Court Organizations

Abstract

Increasing racial and ethnic group representation in justice-related occupations is considered a potential remedy to racial inequality in justice administration, including sentencing disparity. Studies to date yield little evidence of such an effect; however, research limitations may account for the mixed and limited evidence of the significance of justice workforce racial diversity. Specifically, few studies consider group-level dynamics of race and representation, thus failing to contextualize racial group power relations in justice administration. To consider these contextual dynamics we combine court organizational and case-level data from 89 federal districts and use hierarchical models to assess whether variably “representative” work groups relate to district-level differences in sentencing. Using district-specific indexes of population and work group dissimilarity to define representation, we find no relationships between black judge representation and sentencing in general across districts, but that districts with more black representation among prosecutors are significantly less likely to sentence defendants to terms of imprisonment. We also find in districts with increased black representation among prosecutors, and to a lesser degree among judges, that black defendants are less likely to be imprisoned and white defendants are more likely to be imprisoned, with the effect of narrowing black-white disparities in sentencing. Consistent with the “power-threat” perspective, and perhaps “implicit racial bias” research, findings encourage modeling diversity to account for relative racial group power in processes of social control and suggest that racial justice may be moderately advanced by equal representation among authorities.

Despite several decades of attempts to advance equal justice in the United States, disparity in criminal justice administration remains a pressing concern. More than a decade of research on criminal sentencing finds continued disparity based on such defendant characteristics as gender, race, and class. It is surprising to find such persistent and severe racial disparity in sentencing given two changes thought by many to secure equal justice in courts, in unique and perhaps contradictory ways: implementation of sentencing guidelines systems, which presumably reduce “bias,” and increased racial and ethnic group representation among arbiters of justice, which may diversify the pool of explicit and implicit bias, reducing white defendant advantages (Lane et al. 2007; Rachlinski et al. 2009). While there are many studies of race and sentencing under guidelines, and of racial diversity among court and other legal authorities, few assess whether variable racial group representation among multiple court authorities relates to sentencing outcomes, even under sentencing guidelines, and promotes “equal justice” in sentencing.

This article considers whether unprecedented late twentieth century racial and ethnic group representation among key legal decision makers relates to criminal sentencing in federal district courts and, specifically, racial parity in these outcomes. We draw on several bodies of research to frame our analysis. Federal court research suggests that differences in the application of federal sentencing guidelines across courts, particularly guideline departures, explain much of the persistent disparity in sentencing based on defendant characteristics (Kautt 2002; Johnson 2005; Johnson et al. 2008). Questions remain about the specific court contextual, organizational, and processual factors that produce and potentially mitigate racially disparate sentencing. We can consider whether racial group balance in court workforce representation is a significant predictor of sentencing outcomes.

Recent decades have brought dramatic changes in the racial and ethnic composition of law enforcement and legal authorities, especially in select jurisdictions (for reviews, see J. C. Smith 1999; Ward 2006). Many expect this progress toward equal representation among legal authorities to reduce racial and ethnic group inequality in criminal justice, especially in contexts of greater balance in power or control. For example, critical social theorists argue that balancing group power over social control resources (i.e., law, policing, courts, and prisons) increases equity in group outcomes, relative to systems of social control. Following Blalock's (1967)“power-threat” thesis, and related “control-balance” perspectives (Tittle 1995), social researchers have long maintained that unequal power distributions in social control may facilitate selective use of social control resources, to the advantage of dominant groups and the disadvantage of subordinate groups (Jackson 1992; Braithwaite 1994, 2002). Similarly, public protest and policy have advocated equal racial and ethnic group representation among arbiters of justice, claiming that this should advance substantive and symbolic interests, including reductions of police violence and conflict, equal protection in courts, and generally, the democratic accountability and perceived legitimacy of U.S. and other criminal justice systems (Kerner Commission 1968; Walker & Barrow 1985; Dulaney 1996; U.S. Department of Justice 2003).

Few maintain that overt racial animus and racial discrimination explain persistent racial disparities in U.S. courts; rather, most researchers agree that these outcomes are based in more subtle, but compounding inequalities (Zatz 1987; Bridges & Steen 1998). Whereas researchers have turned attention to the multiple criminal justice system contacts and decision stages where these subtle disparities may occur, and accumulate, our interest here is in understanding how race relates to the culture of court organizations, and agency of court actors, in ways that may explain patterns of racial disparity in criminal sentencing.

Recent studies in experimental psychology may provide insight into the mechanisms by which greater racial and ethnic group balance in representation among legal authorities affects criminal justice outcomes, even in the absence of explicit racial animus or overt discrimination. A number of recent studies have found that individuals harbor strong racial sentiments, even if unwittingly, and these “implicit racial biases” regularly influence individual attitudes and actions, generally along the lines of in-group favoritism and out-group derogation (for reviews, see Lane et al. 2007; Kang 2004; Banks et al. 2006). Implicit bias not only appears common to the general public (Greenwald & Krieger 2006) but has also been observed in samples of juvenile and criminal justice authorities (Graham & Lowery 2004; Rachlinski et al. 2009).

In summary, calls for equal representation among legal decision makers commonly suggest that this should substantively and symbolically enhance the quality of justice administration, by incorporating prerogatives, sensibilities and skill sets of a more representative cross-section of society and increasing the apparent democratic legitimacy of government institutions. However, these expectations notwithstanding, there is presently limited and mixed evidence of the significance of increased ethnoracial group representation in the justice workforce to criminal justice outcomes (Ward 2006; Ifill 2000). The relative scarcity of race-related research and data on legal authorities, and theoretical and methodological limitations of existing studies, we argue, may contribute to the inconclusiveness of scholarship to date (Scherer 2004). In particular, we suspect that a common focus on individual-level differences obscures the relative distribution of racial group power or influence in specific contexts of social control, limiting understanding of the contextual significance of increased but still varying patterns of diversity among police, court, and other criminal justice decision makers. In the context of criminal sentencing research, there is lack of attention to the contextual aspects of race and representation in courts, a characteristic that may mediate relationships between individual decision maker diversity, relative to the issue of racial group influence, and specific “court community” outcomes (Eisenstein et al. 1988). For example, prior sentencing research typically models race as a characteristic of individual defendants and assesses its correlation with sentencing trends. While some studies consider racial status characteristics of court workers, they also focus on individuals within select fields (i.e., police or judges) and ask whether individual status correlates with individual attitudes or behaviors. This modeling of the “race-effect” likely fails to capture more complex individual and group dynamics of racial consciousness, identification, and action, in contemporary court contexts.

Toward addressing these limitations, we consider court organizational differences in racial group representation—that is, relative racial composition of key decisionmaking groups, in relation to population, and racial equity in sentencing. Our analysis builds on the court community perspective and on conflict theories of social control, both of which encourage more attention to group dynamics of race and representation. Our analysis specifically examines the racial group “power-threat” thesis, a component of racial group threat theory. Important to note, our study does not assess individual court worker attitudes or behaviors and their impact on sentencing outcomes. Rather, we analyze whether variable racial group balance in representation among key federal court authorities (judges and prosecutors) relates to racial equity in federal sentencing.

Our study extends existing research in several ways. First, we contextualize decision maker “diversity” to obtain more specific insight into patterns of group representation: (1) by incorporating prosecutors in our assessments of court workforce diversity, we move beyond the focus of prior literature on select occupation groups, especially judges, and include a category of workers increasingly influential in sentencing; (2) by measuring diversity among court authorities in relation to the population of each district, we obtain a more grounded measure of racial group representation. Finally, we offer a more direct test of the expectation of conflict theory that greater balance in social power should yield more equitable outcomes in control. Whereas studies of power threat rely on indirect measures of relative power or influence over social control resources (especially population size), we develop a more direct measure of relative racial group representation in a specific context of social control (i.e., federal sentencing). Notwithstanding limitations, these innovations offer a more direct, structural assessment of relative racial group influence in federal district courts and its relation to equity in sentencing. Whereas prior research focuses on individual-level difference, especially among judges, to assess the significance of “diversity” in courts, we develop a more sociological analysis of race, representation, and sentencing in district court settings.

Background: Sentencing Disparity Under Federal Guidelines

The federal district court might seem an unlikely place to find disparity in case outcomes related to defendant racial characteristics and court workforce racial composition, especially before the recent relaxation of federal guideline sentencing. Federal and state sentencing guidelines were implemented to create certainty in sentencing outcomes, eliminate unwarranted disparity, and otherwise increase the transparency and legitimacy of sentencing processes (Stith & Cabranes 1998). This rationalization of sentencing was intended not only to eliminate bias in the sanctioning of racially differentiated defendants, but would also seem to reduce the substantive significance of workforce racial diversity, to the extent that guidelines bind individual discretion with a common framework of decisionmaking. However, strict federal sentencing guidelines have relocated and constrained rather than eliminated discretion in sentencing, making certain categories of court workers (i.e., prosecutors) and contexts of decisionmaking (i.e., charging and charge bargaining) key to the remaining relationships between race and sentencing outcomes. As federal courts regain discretion and consider revised guideline models, it is an opportune moment to examine how variable racial group influence in legal decisionmaking is related to racial parity in federal sentencing, if at all, under strict sentencing guidelines.¹

Since the adoption of sentencing guidelines, scholars have used various methods to examine how defendant characteristics versus offense-related variables explain the persistence of sentencing disparity under presumptive sentencing systems (Miethe & Moore 1985; Dixon 1995; Albonetti 1997, 1998; Ulmer 1997; Bushway & Piehl 2001; Kautt & Spohn 2002). This research confirms that some defendant characteristics such as race and gender remain related to sentence severity. Women appear to benefit disproportionately from processes built into most guideline systems that allow judges to depart from the strictures of the guidelines and reduce sentences (Kramer & Ulmer 1996; Albonetti 1998). There is somewhat more mixed but compelling evidence that race also differentiates federal sentencing, with nonwhite defendants receiving longer sentences than white defendants, controlling for potentially relevant legal factors (Steffensmeier & Demuth 2000; Mustard 2001).

Research suggests that contemporary racial discrimination in sentencing is rooted less in overt discrimination by individual actors than in more subtle, situational, and complex racial politics, such as the very structure of American democracy (Miller 2008) and subconscious cognitive processes (Kang 2004; Banks et al. 2006; Rachlinski et al. 2009), and through compounding decisions of police and court actors that amplify inequalities for nonwhite citizens and defendants (Brown et al. 2003, Ch. 4; Zatz 1987). Though efforts have been made to isolate and measure how much of the racial variations in sentencing outcomes are attributable to judicial discretion (Bushway & Piehl 2001), and to assess potential mechanisms behind racial differences in court outcomes (Zatz 1987; Bridges & Steen 1998; Rachlinski et al. 2009), researchers still know little about race relations within specific court organizations, including the interactions between variously racialized court actors, and their role in shaping court outcomes.

In the district court context, where sentencing has long been heavily determined by mandates and guidelines, it appears that variation in the actual practice of guideline sentencing and related decisions (i.e., plea bargaining and guideline departures) helps account for persisting racial disparity in sentencing (Nagel & Schulhofer 1992; Everett & Wojkiewicz 2002; Kautt & Spohn 2002; Engen et al. 2003). Departures from sentencing guidelines, in particular, provide legally permissible avenues for judges and other court actors to deviate from the rigid proscriptions of guidelines, leading to rates of downward departure from the guidelines that vary widely across judicial districts and help account for this disparity (Kautt 2002; Farrell 2004; Johnson et al. 2008). Recent research by Johnson and colleagues (2008) confirms that differences among district courts, particularly the social contexts in which they are located, relate to patterns of guideline departure.

In summary, a primary motivation for the adoption of federal and other sentencing guideline systems was to reduce differences in sentencing processes and decisions, including racial bias in sentencing, yet disparities persist under the guidelines, in part through their differential application. There remains a need for further research on this “racialization” of decisionmaking in federal and other court contexts (Hofer 2007; Scherer 2004; Ifill 2000). Considering the key roles of prosecutors and judges in charging decisions that enact sentencing guideline recommendations and in the negotiation of guideline departures, these federal court actors hold uniquely powerful roles in determining district court organizational norms, processes, and outcomes and therefore warrant closer consideration in race and federal sentencing research. In the remainder of this article, we survey the theoretical basis for anticipating the significance of equal racial group representation in district court organizations and develop a more limited empirical analysis of the significance of balanced racial group representation to racial equity in federal district court sentencing outcomes.

Race and Representation in District Court Organizations

There has been surprisingly little theoretical and empirical attention to the contextual significance of racial and ethnic group representation in federal or other court organizations. To be sure, numerous studies consider how racial and ethnic group presence in the general population of a jurisdiction, and political and economic competition or conflict between these groups, relates to criminal sentencing. There has also been some attention to racial diversity among select categories of court workers (especially judges) and its relation to case outcomes. Yet these studies rarely examine race in relation to structural characteristics of court organizations, as opposed to individual-level differences between racial group actors. Isolating individual-level differences without reference to contextual aspects of race and representation seems to mis-specify relative racial group power or influence in a given court organization. This oversight may contribute to the limited and contradictory evidence of the relationship between racial characteristics of justice workers, professional orientations, and outcomes. Drawing on court organizational research on sentencing, conflict theories of criminal justice, and racial attitudes research, we develop a more structural measure of race relations in federal districts, focused on the balance of racial group representation among key federal court authorities. We then examine this variation in relation to overall severity and racial parity in federal sentencing.

The Court Organizational Context of Diversity

Sentencing research suggests that social organizational characteristics of specific courts influence the outlooks, opportunities, and behaviors of court work groups, giving shape to cultures of case processing and thus sentencing and other outcomes (Eisenstein et al. 1988; Stapleton et al. 1982; Dixon 1995; Ulmer & Kramer 1996, 1998; Ulmer 1997; Ulmer & Johnson 2004).² The “court community” concept has been developed to characterize this social organizational quality of legal decisionmaking in courts (Eisenstein et al. 1988; Ulmer & Kramer 1998; Ulmer 1995). The framework has been developed along the lines of classic organizational theory, examining the “processual order” (negotiated order) of court communities, to understand how court workers “organize themselves in the face of others attempting to organize them along different lines, all set against the backdrop of broader societal-structural [circumstances]” (Fischer & Dirsmith 1995:386; also see Weber 1954; Sudnow 1965; Cicourel 1968; Emerson 1969; Eisenstein & Jacob 1977; Dixon 1995; Ulmer & Kramer 1998; Kramer & Ulmer 2002).

Court cultures and outcomes may hinge on countless factors specific to court contexts and populations, tied to the identities and personalities of court workers, social demographics, economic and political pressures, and the resulting webbing of legal, public policy, and normative pressures bearing upon court participants. This view on courts as “social worlds, or communities of action and communication” (Ulmer 1995:589) suggests the importance of “localized, diverse processual orders in which case processing and sentencing practices develop through … interaction of courtroom workgroup members” (Ulmer & Kramer 1998:251).

The framework may be particularly helpful to understanding differences between court contexts and changes in court processes, where levels and forms of decision maker participation are modified or constrained by social change (Fischer & Dirsmith 1995). Efforts to diversify decision makers and regulate decisionmaking through presumptive sentencing structures limiting judicial discretion represent two overlapping and perhaps contradictory changes affecting federal district courts in the period of interest.³

Beyond Race and Threat: A Power Balance Perspective

Theories of “racial group threat” (Bobo & Hutchings 1996; Blumer 1958) have been useful to interpreting how race and ethnicity relate to public and official orientations and behaviors related to criminal social control, especially in regard to policing and court processes (Holmes, Smith, et al. 2008; Ulmer & Johnson 2004; Behrens et al. 2003; Crawford et al. 1998; Chiricos et al. 1997). The threat perspective theorizes that nondominant racial groups are disadvantaged through racialized constructions of criminal tendency and responsibility and through dominant group mobilization of resources to punish and control them. Although issues of crime and fear of crime, according to these theories, are symbolic reflections of other political, economic, and social anxieties (i.e., integration, immigration, economic and political competition, etc.), these racial politics become mobilized in institutions of law and criminal social control where law enforcement resources and legal sanctions are used in accordance with dominant group interests.

Theoretical origins of the racial group threat perspective trace to the power threat thesis (Blalock 1960, 1967; Jackson 1992). The power threat thesis proposes that as minority groups grow in size and accumulate resources, they threaten majority group control, creating “a fear of political power [shifting to] the minority,” which encourages the majority group to intensify efforts to maintain social dominance (Blalock 1967:147). When the power threat thesis is applied to studies of race, crime, and punishment, the size of the minority population is expected to have a positive, linear effect on mobilization of police resources and severity of criminal justice sanctions, especially where majority populations have experienced socioeconomic marginalization or decline. To test this relationship, studies typically consider the contextual significance of demographic factors, especially minority population concentration, and the relative socioeconomic standing of racial and ethnic groups, to criminal justice outcomes generally, and the sanctioning of minorities specifically. While some find little or no evidence to support the racial group threat thesis (Kautt 2002; Britt 2000; Ulmer 1997), others report that minority concentration relates significantly to aspects of social control, including police resource allocation (Holmes, Smith, et al. 2008; Kane 2003), police use of force (Liska & Yu 1992), and severity of court sanctions (Kramer & Ulmer 1996; Bridges et al. 1995; Kramer & Steffensmeier 1993; Feld 1991; Myers & Talarico 1987), with minority population interacting with defendant racial status to predict disparity in sentencing severity (Ulmer & Johnson 2004; Bridges & Crutchfield 1988; Crawford et al. 1998) and other sanctions (Behrens et al. 2003).

Recent examinations of the power threat thesis have drawn attention to the variable and fluid nature of racial and ethnic group agency in processes of social control (Holmes, Smith, et al. 2008; Jackson 1992). As predicted, studies find curvilinear relationships between nonwhite group presence in the population and the racialization of social control, where increases in minority population seem to translate into redistributions of power and some ability for nonwhite groups to reshape racial politics of control (Kane 2003; Jackson & Carroll 1981).

In the twenty-first century United States, multiple racial and ethnic groups can “pressure authorities at differing levels of the crime control system” to advance shared and distinct social, economic, and political interests, such that “th[e] simple bifurcation between a dominant and subordinate group, one using the mechanisms of the state, the other its victim, is now outmoded” (Jackson 1992:91). This shifting racial group power balance requires more theoretical and empirical attention. Thus while there is some truth to Ulmer and Johnson's (2004:145) claim that “dominant [court] actors (judges, prosecutors) are white in the contemporary United States,” the reality is much browner. A racially and ethnically heterogeneous cast of authorities has emerged in federal and other court contexts over the past several decades, especially in certain jurisdictions (Ward 2006). In the present analysis of 89 federal districts, the percentage of white judges and prosecutors in a district varies from lows of 54 and 50 percent, respectively, to highs of 100 percent; on average, 86 percent of judges and prosecutors in a district are white (see Table 1).

Table 1. Descriptive Analysis (White and Black Offenders Only)

From a “power-balance” perspective, variable racial group agency in decisionmaking should differentiate the racialization of social control and ultimately, how race relates to court processual orders and outcomes, including sentencing disparity. In terms of criminal sentencing, for example, the degree to which and how nonwhite population concentration and crime are held to constitute threats, and the significance of race of offender and victim relationships to charging and sentencing decisions, is contingent upon the racial composition of those whose judgments shape sanctioning. For example, recent research finds that black jurors are uniquely receptive to mitigation evidence in capital cases, especially in cases involving black defendants and white victims (Brewer 2004). The finding affirms the role of offender and victim race in sentencing, while also suggesting that this hinges on the race of those who influence sentence decisions.

A limitation of research on the power-threat thesis is that racial group “power” has typically been measured indirectly, as a function of population size, where a greater proportion of population is equated with greater influence over resources of social control (Holmes, Smith, et al. 2008; Kane 2003; Bodapati 2008). Here power is typically defined as a threshold effect obtained as nondominant groups achieve a numerical majority in the population, at which point they are assumed to gain social, economic, and political influence. This influence is theorized in relation to both direct and indirect control of criminal justice agencies and resources; that is, as nonwhite groups gain presence and resources in the population, they are expected to gain the capacity to mobilize control resources on their own behalf (Horowitz 1985) and to negotiate accommodations of dominant group members in contexts of social control (Turk 1969).

In the federal criminal justice system there is little evidence that proportionally larger minority populations have greater direct influence over social control. In federal districts such as Southern Georgia, Southern Alabama, and Northern Mississippi, more than a third of residents are black, yet black judges and prosecutors on average constitute less than 10 percent of prosecutors and judges in these districts. In other districts, black representation among prosecutors and judges is more commensurate with the black residential population of the district. Few studies have measured these levels of relative racial group influence directly and assessed their relationship to outcomes. We perform a more direct test of the significance of racial group power in formal social control by measuring levels of equitable group representation in federal district courts and assessing their relation to racial parity in sentencing.

Does Racial Group Balance in Representation Increase Equity in Sentencing?

As we have noted, the contextual significance of court workforce representation has received limited attention in race and sentencing research, notwithstanding the problem of inequality and prevalent assumptions regarding the symbolic and substantive benefits of representation. Promoting ethnoracial group representation among authorities of social control, including police and court authorities, has long been considered a possible remedy to inequality in justice administration (Kerner Commission 1968; Irwin 1980; Welch et al. 1988; Ward 2006). In his writing on “democratic social control,” for example, Braithwaite argues for a more equitable distribution of authority in processes of social control, holding this “control balance” to be an essential component of liberty (Braithwaite 2002:166–7). Like the power-threat thesis, this argument looks to more balanced representation among authorities as a means of redistributing influence over norm definition and enforcement, thus enhancing the effectiveness, legitimacy, and ultimately the social justice of systems of social control.

Researchers, policy makers, and practitioners have often extolled the value of representation. Commemorative statements of the Just the Beginning Foundation, an association of minority federal court lawyers and judges founded in 1992, illustrate a common claim that equal justice may obtain from equal representation in the justice workforce. Citing the late Justice Thurgood Marshall, the foundation maintains that “African American lawyers have played a unique role in American history. Imbued with respect for the rule of law and the responsibility that such belief engenders, these lawyers have used their legal training not only to be masterful technicians but to force the legal system to live up to its creed: the promise of equal justice under law” (Just the Beginning Foundation 2009: n.p.).

Minority justice professionals are not alone in claiming that workforce representation is symbolically and substantively beneficial to equal justice administration. A recent U.S. Justice Department initiative to increase diversity among U.S. Attorneys asserts that “[O]ur pursuit of justice is stronger, and fulfillment of our national mission more effective, when we bring to bear the experience, judgment, and energy of colleagues from a wide spectrum of racial, ethnic, economic, and geographic backgrounds” (U.S. Department of Justice 2003:1). Research and policy focused on criminal justice and other public and private sectors also theorizes that representation in decisionmaking results in more substantively fair and symbolically legitimate processes, including more equitable outcomes (see Thomas & Ely 2001; Young 1990; Krislov 1974).

Expectations of substantive and symbolic benefits of justice workforce representation raise empirical questions that await more systematic scrutiny. In particular, there is a need for improved theorization and measurement of racial group representation, and greater attention to the specific range and mechanism of these race-effects. While several studies consider ethnoracial group diversity in justice administration, they typically focus on attitudes and behaviors of individual workers, such as prison authorities, police, and judges in particular (Ward 2006). Research on racial differences in professional orientation generally finds that status characteristics of justice workers (including race) hold limited significance to process outcomes, in comparison to occupational roles, political ideology, and professional goals (Jacobs & Cohen 1978; Crouch & Alpert 1982; Raganella & White 2004). Yet others report that minorities bring distinct perspectives to bear on the idea and practice of justice (M. Smith 1983; Bennett & Johnson 2000; Cullen et al. 1989; Jurik 1985), which may affect court practices and outcomes. Research is less extensive and inconclusive on consequences of decision maker racial diversity for justice processes and outcomes. Again, several studies find no substantial race-of-decision maker affect on outcomes (Mastrofski et al. 2002; Walker & Barrow 1985; Spohn 1990a, 1990b; Uhlman 1978, 1979), while others report marginal or more substantial effects (Luna-Firebaugh 2003; Weitzer 2000; Welch et al. 1988; Brewer 2004).

Studies of judicial diversity illustrate the limited and inconsistent picture of the relationship between decision maker racial diversity, professional orientations, and case outcomes. Some studies report that nonwhite judges do not treat defendants differently than white judges (Spohn 1990b; Walker & Barrow 1985), or that white and nonwhite judges both sentence nonwhite defendants more severely than white defendants, if for different reasons (Spohn 1990b; Schanzenbach 2005). Others find that nonwhite judges sentence nonwhite defendants more leniently than white defendants (Welch et al. 1988), sentence nonwhite defendants more harshly than white defendants (Steffensmeier & Britt 2001), and sentence all defendants more consistently than white judges (Holmes, Hosch, et al. 1993). Some find that nonwhite judges generally favor the defense at higher rates than white judges (Gottschall 1983) and are uniquely responsive to certain defendant claims of procedural impropriety, such as police misconduct (Scherer 2004).

Workforce diversity appears likely to subtly and selectively differentiate court organizational norms and outcomes, rather than dramatically distinguishing courts, perhaps especially in the context of rigid guideline sanctioning. In one of few studies considering aggregate levels of court workforce representation, Schanzenbach (2005) finds that the significance of minority representation among federal judges is mainly limited to certain categories of cases and is associated with both advantages and disadvantages for minority defendants. In examining the racial composition of judges in federal districts in relation to district-level differences in sentencing, he finds proportions of judges in a district who are black, Hispanic, or female have little effect on sentencing overall but reduce racial and gender disparity in sentencing severity, especially in cases involving less serious offenses. Schanzenbach (2005) suggests that black decision makers may hold more empathy for black victims, leading to their stricter sentencing of black defendants, much like their white counterparts, albeit for different reasons. While disadvantageous to black defendants, such an orientation may be considered consistent with black community interests in crime control and equal protection under law (Kennedy 1997).

The inconsistency of prior research on justice workforce diversity likely reflects limitations in the conceptualization and measurement of representation and its relationship to legal decisionmaking (Scherer 2004; Ifill 2000). In the case of court organizational research, there is especially a need for more direct attention to group dynamics of race and representation. As we have noted, court organizational research stresses the contextual nature of court processes and outcomes but has given little attention to the contextual significance of race. Conflict theories of social control, and particularly the power-threat thesis, suggest that dominant group control over social control resources diminishes as minority groups gain presence and influence in the population and become capable of advancing their own interests in criminal social control.

(Re)distributing Racial Bias: The Diversity of Racial Group Preferences in Courts

Recent attitudinal research may also help explain how the racial composition of court authorities relates to race relations of sentencing in variably representative court contexts. First, studies find growing tendencies among whites to express indifference or lack of sympathy toward nonwhite groups (Pettigrew & Meertens 1995), to claim unfamiliarity with issues of racial and ethnic inequality (Berinsky 1999), to express unwillingness to intervene in racially disparate treatment (Goldberg 2006), and to avoid contact with other ethnoracial groups (Forman & Lewis 2006). Evidence ranging from the increased selection of neutral positions or “don't know” on social surveys related to race (Forman 2004) to candid expressions of a lack of interest in matters of racial and ethnic group relations in qualitative interviews (Forman & Lewis 2006), suggests this increase in racial apathy in the contemporary United States and other racialized societies (Pettigrew & Meertens 1995). Whereas racial prejudice is typically regarded as an overt expression of animus toward out-groups, these studies suggest that “modern racism is more likely expressed in a failure to help rather than a conscious desire to hurt (Sue 2005:108).

Insofar as racial apathy is more common to whites, nonwhite court authorities may be more responsive to racial inequality, and nonwhite defendants may be disadvantaged in contexts of disproportionately white representation among authorities, especially where issues of bias or discrimination are apparent or alleged (i.e., police misconduct). As such, racial apathy, and its potential disadvantage to black crime victims, witnesses, jurors, or defendants, for example, may be mitigated by black representation among decision makers, insofar as these court actors are more likely to engage racial issues. Furthermore, white racial apathy may generally be diminished in more diverse or representative courts, to the extent that nonwhite court personnel alter court cultures, through direct and indirect influence on court norms, including racial attitudes of white counterparts.

Studies of racial apathy call attention to its implicit discrimination through disengagement, yet there is also strong evidence of quite common if unconscious racial stereotyping, in the form of implicit racial bias, and its activation of racial preferences in people's choices and decisions (Greenwald & Krieger 2006; Kang 2004). Like racial apathy research, these studies suggest that explicit bias has waned in recent times but that subtle, implicit biases still shape racial attitudes, group preferences, and behaviors. Implicit racial bias and related racial attitudes are likely important in accounting for the paradox of declining explicit bias and persistent racial stratification in the United States (Dunham et al. 2006:1269; Greenwald & Krieger 2006), including continued inequality in policing and court contexts (Banks et al. 2006; Rachlinski et al. 2009; Graham & Lowery 2004).

A range of experimental studies using Implicit Association Tests (IAT) illustrate that respondents commonly maintain attitudes that are implicitly racially biased, and that these biases affect some behaviors, even in the absence of consciously held racist beliefs.⁴ Race IAT studies find that white Americans routinely express stronger biases of “white preference.” Black Americans hold less consistent biases, including a much stronger “black preference” than whites, and significant but lower levels of white preference, than among whites themselves (Greenwald & Krieger 2006; Kang 2004). While the strength of the relationship between implicit bias and discriminatory behavior is not yet well-established (Banks et al. 2006:1188), there is evidence of an at least marginal influence of implicit bias on a range of behaviors (Greenwald et al. 2009). Moreover, in the criminal justice context, even a slight effect on behavior is likely to compound over time to produce substantial inequality (Rachlinski et al. 2009:1201–2; also see Brown et al. 2003; Western 2007).

Several studies have examined implicit biases of law enforcement and legal decision makers. Race IAT studies of trial court judges (Rachlinski et al. 2009) and parole and police officers (Graham & Lowery 2004; Correll et al. 2007) find familiar patterns of implicit racial preference among these officials, suggesting that implicit and explicit biases likely impact legal attitudes and decisions. In a recent experimental design, Rachlinski and colleagues (2009) administered a Race IAT to 133 white and black trial court judges from three jurisdictions in the eastern and western United States. The authors found that judges harbor implicit biases much like others in the population, and these biases may have some bearing upon judgment. The authors found a strong white preference among white judges and that black judges demonstrated no clear bias in their IAT but relatively higher levels of black preference than their white counterparts. While black judges also held white preferences to a significant degree, this was far less so than in the case of their white judicial counterparts.

These racial biases were also shown to influence judgment. Judges who exhibited greater implicit white preferences gave harsher sentences to defendants when case vignettes were preceded by subliminal references to blacks than when they were preceded with a neutral priming. Similarly, judges indicating an implicit bias of black preference gave less harsh sentences to hypothetical defendants when primed with black references in case vignettes than when primed with neutral references. When the race of the defendant was explicitly indicated (in defendant descriptions), however, white judges were equally inclined to convict defendants identified as white or black, but black judges remained more inclined to convict when the defendant was identified as white rather than black. The authors conclude that black judges who harbored a white preference tended to judge more like white colleagues, in this experiment, while black judges harboring black preferences treated black defendants more leniently than others (Rachlinski et al. 2009). In general, findings suggest that black authorities counter white preferences with their own in-group favoritism, and that black defendants are advantaged at sentencing within districts with greater black representation.

Black representation among court authorities may also shift the overall magnitude of implicit racial bias, including stereotypical associations that activate anti-black bias, and contribute to white favoritism and black disadvantage in sentencing. Several scholars suggest that “automatic operation of stereotypes” may be attenuated through changes in the environment, including affirming positive associations, such as counter-stereotypical contact with racial and other out-group members (Graham & Lowery 2004:500–1; Sinclair et al. 2005; Blair et al. 2001; Wittenbrink et al. 2001; Peresie 2005). Insofar as implicit bias can be controlled through these types of “social tuning,” court workforce diversity may both redistribute and limit automatic operation of racial bias by advancing specific in-group preferences and diminishing levels of out-group derogation, through counter-stereotypical contact with members of different racial groups. Thus black disadvantages in sentencing may be moderated by the balance of racial group representation in courts, both for an elevation of black preferences in districts with black representation and an attenuation of white preferences in more representative courts.

Black representation among prosecutors may be especially important for structural and social-psychological reasons. For one, presence among these substantively powerful court officials may allow black authorities to express their relative black preference, and lack of white preference, in case processing. Perhaps more significant, black representation among such high-prestige figures may symbolically disrupt a dominant racial paradigm of race, crime, and justice—pivoting on the black offender and white victim—and trigger counter-stereotypical considerations among other court workers, which may work to constrain automatic stereotypes and their impact on sentencing. As we discuss further in the conclusion, to the extent that court workforce diversity affects sentencing, this is likely for some combination of direct nonwhite group influence in case processing (i.e., the balance of white and black preference in proposed sanctions) and its indirect influence on the salience of race within particular case and court contexts.

In summary, this study aims to assess the significance of black representation among court authorities to racial parity in sentencing. Given persistent racial disparity in federal sentencing, notwithstanding sentencing guidelines and increased but variable decision maker diversity, we ask whether balanced racial group representation among federal judges and prosecutors predicts district-level racial parity in federal sentencing. The present research does not include individual-level measures of racial attitudes, or race-related behavior, but rather examines racial group dynamics of representation in relation to sentencing. Following conflict theories, including the power-threat perspective and racial attitudes research, we ask whether the variable balance of racial group authority across district courts predicts racial parity in sentencing outcomes.

The Present Research

Our analysis of racial group representation in district court organizations addresses several limitations of prior research. First, while most sentencing research considering diversity among legal decision makers only examines the attitudes and behaviors of individual court actors, we consider the balance of representation among groups of court workers. Group dynamics of representation may mediate the significance of racial diversity among individual decision makers, including its relevance to racial equity in sentencing. Failure to account for contextual aspects of race and representation may help explain the mixed and contradictory findings of prior research on decision maker diversity. The influence of nonwhite justice workers may be contingent on broader representational issues, such as the “diversity perspectives” of colleagues (Thomas & Ely 2001), and overall workforce representation (Ward 2006; Schanzenbach 2005).

A second innovation of our study is its inclusion of multiple decisionmaking groups. Research on race and representation in legal decisionmaking has neglected to consider levels of diversity among multiple categories of actors involved in shaping court organizational norms and outcomes. Beyond members of the federal judiciary, for example, federal prosecutors' attitudes and decisions have a substantial effect on sentencing. Under systems of structured sentencing, such as guidelines and mandatory minimums, discretion has not disappeared, but rather shifted to nonjudicial authorities, and especially prosecutors (Miethe 1987; Savelsberg 1992; Engen & Steen 2000; Bjerk 2005). While some scholars consider how the use of prosecutorial discretion relates to sentencing disparity (LaFave 1970; Misner 1996; Miller & Eisenstein 2005), no study we have found examines the significance of racial group representation among prosecutors to criminal case outcomes, either alone or in combination with representation among judges or other authorities. Analyzing district court workforce representation in relation to population, and among multiple groups of legal decision makers, provides a more comprehensive, court-organizational perspective on the contextual significance of racial group representation to racial group parity in sentencing.

Finally, whereas prior research on the power-threat thesis either omits consideration of relative racial group power, or measures this indirectly, we develop a more direct test of relative racial group influence over resources of social control in federal district court contexts. We analyze the balance of black representation among judges and prosecutors, relative to district demographic characteristics, to discern whether greater balance in representation relates to the general severity or racial parity of sentencing across 89 federal districts.⁵

Our hypotheses consider the district-level significance of black representation among judges and prosecutors to racial equity in federal sentencing. Our research asks how black defendants fare in sentencing within districts distinguished by the balance of black representation among key court authorities, controlling for other individual and contextual factors. As noted, conflict theories of social control, such as the power-threat thesis and variants of control-balance theory, suggest that the lack of equal group representation among authorities of social control facilitates the selective mobilization of social control resources, in a manner beneficial to dominant group interests (Blalock 1967; Jackson 1992). Greater control balance, by contrast, is thought to ensure a more equal representation of group interests in processes of social control. Similarly, arguments for the diversification of justice-related occupations often contend that this will help promote equity in justice administration. Finally, racial attitudes research suggests that whites may be more apathetic toward race issues and to harbor strong if implicit white racial preferences in comparison to their black counterparts, who for their part may hold stronger black preferences that may reduce white defendant advantages, and black disadvantage, in the case of criminal sentencing. With these theoretical and empirical insights in mind, and since it is established that black defendants are differentially subject to severe sentencing, even in the context of guideline sentencing, we hypothesize that black representation among federal judges and prosecutors advantages black defendants, and that racially balanced court workforce representation will relate to greater parity in sentencing. We thus arrive at three research hypotheses:

Hypothesis 1: Disparities between black and white defendants in the likelihood of being sentenced to prison and prison length are reduced in districts with greater black representation among judges.

Hypothesis 2: Disparities between black and white defendants in the likelihood of being sentenced to prison and prison length are reduced in districts with greater black representation among prosecutors.

Hypothesis 3: Disparities between black and white defendants in the likelihood of being sentenced to prison and prison length are reduced most dramatically in districts with greater black representation among judges and prosecutors combined.

Research Design and Methods

Relationships between racial group balance in district court judge and prosecutor representation and sentencing outcomes are likely conditioned by other case-level and court contextual characteristics. We considered these social, court organizational, and individual-level variables using a series of multilevel models. To identify possible effects of workforce representation we examined how: (1) individual defendant characteristics, (2) social context and organizational characteristics of the courts, and (3) levels of racial group balance in representation among judges and prosecutors in each district court relate to district-level differences in sentencing severity and disparity. Following other research, we conceptualized sentencing as two decisions: (1) the decision to incarcerate and (2) the length of sentence imposed. We considered each hypothesis separately in relation to each of these decisions.

We combined multiple databases to assess effects of courtroom workforce representation on sentencing, controlling for case and district court contextual factors. Individual defendant case decisions were obtained from the Monitoring Federal Criminal Sentencing (MFCS) database of the U.S. Sentencing Commission and include information on all federal cases sentenced from October 1, 2000, to September 30, 2002. The MFCS data contain information on case-level factors such as offender characteristics, offense severity, criminal history background, other relevant guidelines and court processing information, and the sentence received. Since we are interested in the specific effect of black court workforce representation on the sentencing of black defendants, we only included cases involving non-Hispanic black or white defendants (N=55,892).⁶ Our final sample also excluded cases with missing data for any variable in the analyses (approximately 8.5 percent of all cases).

The second-level data included information about the social and court characteristics of 89 federal judicial districts.⁷ Data on the social context of the district were compiled using data from the 2000 U.S. Census and 2000 Uniform Crime Reports. Data on district-level court characteristics, including court workload, criminal case processing time, and proportion of district caseload for different types of crimes, were obtained using 2000–2002 Federal Court Management Statistics, which are produced annually by the Administrative Office of the U.S. Courts. Data on judge demographics from 2000 to 2002 were obtained from the Federal Judicial Center's Biographical Directory of Federal Judges, and data on federal prosecutor demographics were provided by the U.S. Office of Personnel Management.⁸

Dependent Variables

Our dependent variable was severity in sentence decision. The sentencing literature has conceptualized sentence outcomes in a variety of ways, but the decision to incarcerate a convicted offender or grant probation and the length of the term of incarceration are the two most commonly examined outcomes. We defined sentence severity using the following outcome measures: (1) whether or not a defendant received a prison sentence (coded 1 if the offender was sentenced to a length of confinement of 1 month or more in a federal prison, and 0 if he or she was sentenced to any nonincarceration option such as house arrest, probation or a fine, or a term of confinement less than 1 month); and (2) the length of the sentence imposed (calculated as the natural log of the sentence length in months to compensate for the positively skewed nature of sentencing length data.⁹

Individual Case-Level Variables

The Monitoring of Federal Sentences dataset provides detailed information on case and defendant characteristics expected to predict sentencing. The presumptive sentence, calculated here as the logged minimum months of incarceration recommended by the guidelines, measures the combined effect of a defendant's criminal history and the severity of the offense on sentence outcomes (Engen & Gainey 2000). A separate measure of defendant criminal history scores was also included to account for the additional impact of an offender's criminal history beyond what was captured by the presumptive sentence measure (Hofer & Blackwell 2001). Criminal history scores ranged from 1, indicating no or limited criminal history, to 6, indicating a significant criminal history. The primary offense was measured through a series of dummy variables that captured whether the primary offense was a violent, property, drug, firearm, fraud, immigration, or other type of offense.

Case processing factors were also included to consider whether the defendant was released on bail pending sentencing (coded 0 for detention and 1 for bail). Defendants released on bail have opportunities to secure jobs, reconnect with family members, or make other meaningful changes that can impact sentence outcomes (Albonetti 1996). An additional measure of whether or not the case went to trial (coded 0 for a plea bargain and 1 for trial) was also included.

Departures from the guidelines were also measured. At the time when the data used in this analysis were collected, downward departures from the guidelines occurred in two main ways. Under Federal Sentencing Guidelines rule 5K2, a defendant could receive a sentence below the prescribed guideline range if the judge felt an extenuating circumstance not considered by the guidelines warranted a reduced sentence. Such departures reflected, for example, extraordinary family circumstances, evidence of rehabilitation, or an important role in the community, among other considerations. Under guidelines rule 5K1.1, defendants who provided assistance to the government could receive a sentence below the prescribed guidelines range. These departures could only be requested by prosecutors, though judges retained some discretion on the degree of departure warranted. Dummy variables measuring the presence of either a traditional downward departure (5K2) and/or a substantial assistance departure (5K1.1) were included. Recent research suggests that departures from the guidelines may be affected by defendant and district- level characteristics (Johnson 2003, 2005; Farrell 2004; Johnson et al. 2008).

Finally, measures of defendant status characteristics were included. Defendant race was coded 0 for white and 1 for black. Defendant gender was coded 0 for male and 1 for female. Defendant age was coded in number of years at the time of sentencing. Finally, citizenship status was coded 0 for U.S. citizens and 1 for noncitizens. A full correlation matrix for individual-level variables is included in Appendix Table 1. All level one variables were grand-mean centered to test for effects of case and offender characteristics, net of effects of being sentenced in the same district.

Judicial District Variables

Of central interest here is whether greater racial group representation among key federal court authorities relates to equity in federal sentencing outcomes. Our judicial district variables included an aggregate measure of racial group representation among judges and prosecutors in 89 federal districts. By calculating the proportions of judges, prosecutors, and overall population who are black in each district, we developed an index measure of district-level representation. The index gauged dissimilarity between the racial group distribution of the district population and the racial group distribution of the district court workforce, measured as the proportion of black judges and the proportion of black prosecutors in a district divided by the black proportion of the overall district population. Values of 1 indicate equaled representation in a particular role, while values greater than 1 indicated overrepresentation and values less than 1 indicated underrepresentation. While some studies suggest the value of literal “balance” in racial group representation (Weitzer 2000), this is not clearly indicated in the power-threat literature and was unexamined here. Our models assessed whether greater black representation among district court authorities is related to equity in sentencing, where representation is defined in relational rather than absolute terms (i.e., in relation to population).¹⁰

Our examination of the variable balance of racial group representation among both judges and prosecutors represented a departure from previous research, which has generally focused on single sets of actors, usually judges, and rarely contextualizes diversity among individual workers or occupations (Johnson 2006; Scherer 2004; Schanzenbach 2005). As discussed above, the potential displacement of discretion from judges to prosecutors under structured sentencing necessitates attention to the potential independent effects of group representation among both judges and prosecutors. Measuring judge and prosecutor representation in relation to district population also provided a more direct test of the racial group power-threat thesis, which posits that group power over resources of social control varies in relation to population, and that greater equity should obtain in contexts of power balance. Our approach allowed us to empirically assess relationships between group population size and federal court representation and to compare effects of variable balance of black representation among judges and prosecutors on the sentencing of black defendants.

We incorporated several additional judicial district and court characteristics as control variables to better isolate the significance of workforce representation. The proportions of judges and proportion of prosecutors in a district who are female were included, though primarily as a control variable in the present analysis.¹¹ Other measures of the district context included the violent crime rates of each judicial district, measured as the total number of violent crimes per 1,000 people in the district aggregated from the county to the district level,¹² and the socioeconomic characteristics of the district, measured as a summed z-scale combining the percent of the population living in poverty and percent of the population unemployed (alpha=0.81). These measures have been found to relate to differences in sentencing across counties (Myers & Talarico 1987; Fearn 2005).

A measure of whether the district sits in the South was included to control for unique characteristics of Southern court communities. While the South has been linked to more punitive attitudes toward sentencing and punishment in general and racial disparity in criminal justice, there are other reasons to suspect distinct politics of race, crime, and justice. Social survey data indicate that white support for punitive sentencing options such as the death penalty is significantly linked to racial antipathy, perhaps especially outside the South (Borg 1997). We measured Southern location to isolate and possibly compare regional differences in the race relations of federal sentencing.

Finally, we included measures of the political ideologies of governmental actors in states where the federal district courts reside. Previous research suggests that local, state, and federal court actors are influenced by local political ideologies (Hughes 1995; Huang et al. 1996; Helms & Jacobs 2002).¹³ Recent research by Johnson and colleagues (2008) reports a significant relationship between political liberalness in federal court districts, measured by a composite score of senatorial voting patterns on civil rights issues, and decisions to grant downward departures from the guidelines, suggesting a potentially strong relationship between district-level political ideology, application of the guidelines, and eventual sentence outcomes. In the present research, we included a measure of state governmental ideology from 2001 commonly used by political scientists to help control for potential effects of the political context in which federal sentencing occurs on being sentenced to prison and prison length. State government ideology scores provide annual measures of “roll call voting scores of state congressional delegations, the outcomes of congressional elections, partisan divisions in state legislatures, the party of the governor and various assumptions regarding voters and state political elites” (Berry et al. 1998:327). They have been updated annually through 2007 by Richard Fording of the University of Kentucky. These measures have a number of advantages over the composite measure of civil rights voting utilized by Johnson and colleagues (2008). State government ideology scores measure a diverse array of congressional voting patterns and include measures of state legislator and gubernatorial activity. The scores provide a robust measure of the attitudes and political leanings of political actors in each state who directly and indirectly influence the nomination and confirmation of U.S. district court judges and prosecutors in each district (Giles et al. 2001) and the political ideologies that may affect the decisions of court actors operating in local contexts. Lower scores represent conservative political ideologies, and higher scores represent more liberal-leaning ideologies.

In addition to measures of the social contexts in which courts operate, we included control variables related to court organizations themselves. Numerous studies find that court structure and especially size affect the processing of cases, with larger courts often pursuing more efficiency in sentencing, given their heavier caseloads and other resource pressures (Wooldredge 1989; Dixon 1995; Eisenstein et al. 1988; Nardulli et al. 1988; Ulmer & Johnson 2004). To control for these factors we included a measure of the size of the court, determined by the number of authorized judgeships, and caseload pressure, measured by the average annual criminal felony filings in a district divided by the number of judges.

It is also possible that qualitative caseload differences, such as the proportion of criminal filings for weapons-related offenses in a particular district, differentiate case processing routines in general and in relation to sentencing severity and disparity. During the early 2000s there was great variation in the volume of federal weapons filings across districts, representing a combination of different levels of offending across districts and variation in the emphasis on developing weapons cases among U.S. Attorney offices.¹⁴ To control for such differences we included a measure of the proportion of filings in a district that are weapons-related compared to the proportion of filings for all other crime types.¹⁵

Finally, given the centrality of federal guidelines to sentencing in the period considered, and to persistent racial disparity in federal sentencing, we included two district-level measures of court tendency to strictly adhere to guideline recommendations. Specially, we controlled for the proportion of cases that involve downward departures and/or substantial assistance departures in a district. A full correlation matrix for all level 2 variables is included in Appendix Table 2.

Analytic Strategy

Following prior research, we employed Hierarchical Generalized Linear Modeling (HGLM) and Hierarchical Linear Modeling (HLM) to assess separate and interactive effects of case-level and court contextual predictors on dichotomous prison sentence outcomes (no prison vs. prison) and linear sentence length outcomes (logged measure of months of incarceration), respectively (Britt 2000; Johnson 2006; Kautt 2002; Ulmer & Johnson 2004). Our analysis began by estimating effects of individual-level variables on being sentenced to prison and sentence length. Fixed- and random-effects models were then generated for all individual case-level variables.¹⁶ By incorporating a unique random effect and allowing for variation by district, hierarchical modeling allowed us to examine the experiences of defendants nested in districts, which share characteristics that may similarly influence individual-level defendant outcomes. District-level variables were introduced into the models at level two,¹⁷ and a series of cross-level analyses were conducted to assess effects of judge and prosecutor representation on sentencing by race. For all analyses, models examining incarceration were estimated using logistic regression, and models examining sentence length were estimated using linear regression.¹⁸

Findings

Descriptive Analyses

Descriptive statistics for both case-level and district-level variables are provided in Table 1. In 2001–2002, approximately 9 percent of all federal judges and 8 percent of federal prosecutors were black, slightly below the proportion of blacks in the U.S. population (13 percent) and the average black population by federal judicial district (12 percent). Yet there was great variation among districts in levels of black representation, in terms of both population and key court authorities. At the low end, districts like Montana and Idaho had less than 1 percent black members of the overall population, while numerous districts in the South (e.g., northern and southern Mississippi, western Tennessee, and central Georgia) were more than 35 percent black.¹⁹ It is therefore not surprising that black workforce representation varied among federal districts, with black prosecutors ranging from between 0 and 24 percent of the prosecutorial workforce of a district, and black judges constituting from 0 to 33 percent of the judicial workforce.

To assess relationships between representation in the court workforce and outcomes in sentencing, we created an index of dissimilarity between black representation in the district court workforce and black population in the district, where a value of 1 indicated proportional representation, values under 1 indicated underrepresentation, and values over 1 indicated overrepresentation. On average, blacks were underrepresented among judges (0.86) and prosecutors (0.75) across the federal districts.

It is not always the case, however, that districts with sizable black populations contain equally representative court organizations. While the two variables are strongly correlated,²⁰ variation in representation among judges and prosecutors within districts, and levels of representation across districts, suggested the limits of using population proportion as an indirect indicator of relative group power in contexts of social control. In the state of Mississippi, for example, blacks made up large and nearly equal proportions of the northern (37 percent) and southern (35) federal districts yet were twice as underrepresented among judges and prosecutors in the northern (index=0.26) than in the southern (0.50) district. In the district of southern Georgia, blacks made up 33 percent of the population and 60 percent of defendants, yet they were severely underrepresented among judges and prosecutors (0.08), and far more so than in the central (0.60) and northern (0.68) districts of the state.

Few districts had high levels of black representation among both judges and prosecutors. After using a black representation index of 1.01 as a cutoff (meaning that blacks were 1 percent more likely to be in the court workforce as in the general population), we found that only 12 districts had overrepresentation of both black judges and prosecutors. Ten districts had overrepresentation of black prosecutors but not black judges, and 15 districts had overrepresentation of black judges but not black prosecutors. Fifty-two districts had underrepresentation among both black judges and prosecutors, including 16 districts with no black representation among either judges or prosecutors.

Similar to prior research on judicial diversity in state courts (Johnson 2006), we generally found more gender than racial diversity among both federal judges and prosecutors. In 2001, women held 20 percent of federal judgeships, and 48 percent of federal prosecutors were women. While proportions of federal judgeships held by women varied considerably across districts (0 to 54 percent), female prosecutors were more evenly distributed, ranging between 27 and 73 percent of the prosecutorial workforce. Our data do not presently allow us to disaggregate combined race and gender diversity.

Districts also varied on other dimensions, including size, caseload characteristics, liberalness, and the tendency to adhere to guidelines. While there were an average of seven judges per court, districts varied from those with only a few judges and fewer than 25 prosecutors to large districts of more than 25 judges and several hundred prosecutors. Similar variation existed in the quantity and quality of district caseloads. On average, judges received a total of 90 felony filings per year, but that figure ranged from 25 to 364. There was also significant variation among districts in the types of cases they handled, including the volume of cases involving weapons offenses. Two-thirds of districts (63 percent) clustered within one standard deviation of the mean for the proportion of cases involving weapons charges, (between 12 and 30 percent of criminal filings) but weapons offenses made up between 1 and 12 percent of criminal filings in 14 districts at the low end and between 30 and 45 percent of the filings in 12 districts at the high end. Another key difference between federal districts was the degree of adherence to sentencing guidelines. On average, districts granted a downward departure in 12 percent of cases and substantial assistance departures in 20 percent of cases, but the variation between districts was large (standard deviations of 11 and 9 percent, respectively). Some districts seemingly more inclined to grant downward departures also appeared less likely than average to grant substantial assistance departures, and vice-versa. Ideological differences also existed among districts, evident in variation in state government ideology scores.²¹

Explaining Differences in Sentence Outcomes

We developed two-level unconditional models to measure the amount of variance in sentencing explained by individual and district factors. Individual case-level factors accounted for the majority of variance in imprisonment and sentence lengths. However, 8 percent of the variance in the decision to incarcerate and 7 percent of the variance in the sentence length was attributable to differences in the federal districts.

Despite the fact that the variance in sentences from district court level measures was small, we caution against a conclusion that racial stratification, including variable balance in representation, is unrelated to sentencing. First, as other research clearly shows (Zatz 1987), court outcomes can mask subtle, cumulative inequalities that can become embedded and amplified in “legal variables” (i.e., prior police contact, arrest, prior incarceration, etc.), some of which may pertain to racial group balance in representation among police and other court (i.e., juvenile and state) authorities (Brown et al. 2003; Bridges & Steen 1998). Further, we should expect little district-level variation in sentencing under presumptive sentencing systems. This is particularly true because the individuals examined in the present analyses were sentenced prior to the federal sentencing guidelines becoming advisory (United States v. Booker 543 U.S. 220 2005), where a core goal of the guidelines was to standardize sentences across judicial districts. The fact that any variation in sentence exists under such a structured sentencing system, after controlling for case factors, invites further scrutiny.

The effects of individual case- and district-level variables on being sentenced to a term of incarceration (coded 0 for no prison and 1 for prison) and length of incarceration are found in Table 2. The results presented in Table 2 include both individual- and district-level findings from the random-effects models because individual-level fixed-effects results were relatively unchanged with the addition of district-level variables. As expected, higher criminal history scores and presumptive sentences significantly increased the likelihood of incarceration and incarceration length. Conversely, departures from the guidelines and being released on bail before sentencing decreased the chance of incarceration and length of sentence.

Table 2. HGLM and HLM Regression Random Coefficient Models of Receiving a Prison Sentence and Prison Length

^* p<0.10, ^**p<0.05, ^***p<0.01

^a χ²=125.45, df=76; ^bχ²=437.01, df=67; ^cReference category is all other offenses.

Several defendant status characteristics also related to sentence outcomes. Noncitizens were more likely to be incarcerated than citizens. Female offenders had a significantly decreased likelihood of being incarcerated as compared to men and on average received shorter sentences. Older defendants had a decreased likelihood of incarceration, though the effect of age on length of sentence was not significant. Black defendants had a higher likelihood of being incarcerated than white defendants (14 percent higher odds) but did not differ from whites significantly in the length of their sentence.

In line with other research examining differences in sentence outcomes across courts (Fearn 2005; Johnson 2006; Kautt 2002), random-effects models indicated that the effect of nearly all the case-level factors varied across judicial districts, suggesting that these factors are weighted somewhat differently in sentencing decisions, depending upon the district. To measure the effect of district characteristics on sentence outcomes, we constructed two-level random-effects models. More liberal districts handed down shorter sentences than more conservative districts. Larger districts had shorter terms of incarceration than smaller districts, though caseload pressure increased sentences length across districts. Districts with higher departure rates not surprisingly sentenced less severely. Violent crime rate, location in the South, socioeconomic status of the district, and type of charges filed in the district were unrelated to sentencing outcomes in the multilevel model.

We turn now to findings regarding the relationship between race, workforce representation, and sentencing severity and parity. District-level variation in black representation among judges was not significantly related to either being sentenced to prison or sentence length. This finding appears to support literature suggesting a weak relationship between judge diversity and sentencing. However, while levels of racial group balance in judicial representation did not predict sentencing, offenders were less likely to be sentenced to prison, and likely to receive shorter sentences, in districts with greater black representation among prosecutors. This suggests that racial group balance in representation among prosecutors may have a stronger impact on sentence outcomes than representation among judges, perhaps especially in this context of presumptive guideline sentencing. While most research on racial group representation among legal decision makers has focused on the judicial role, there is clearly a need for more attention to the prosecutorial role.

To test our hypotheses that greater black representation among court authorities increases racial parity in sentencing, we examined cross-level interactions between black workforce representation and race of defendant separately for each occupational group. A cross-level effect identified the degree to which a district-level variable (here work group representation) conditioned the relationship between an individual-level independent variable (offender black) and the dependent variable (sentence). The coefficients for individual-level variables were treated as outcomes predicted by district-level variables. The cross-level effects models contained main effects and cross-level effect coefficients. Main effect terms were fixed-effects coefficients measuring the average effect of the individual-level variable on the sentence outcome. The analysis helped identify how district variation in the balance of black representation among judges and prosecutors conditions the relationship between defendant race (black) and imprisonment decisions.

Table 3 reports the cross-level interaction of black judge and prosecutor representation on the sentencing of black defendants.²² As we noted in the previous analysis, black defendants were more likely to be sentenced to a term of incarceration than white defendants; however, when black defendants were sentenced in districts with greater black representation among judges and particularly prosecutors, this disparity between white and black offender sentences lessened. To help interpret the nature of the interaction effects, predicted probabilities of incarceration for black and white defendants at different levels of black representation of judges and prosecutors were calculated holding all other variables constant at their mean.²³ Differences in the probabilities of black and white offender incarceration at various levels of black judge and prosecutor representation are plotted in Figure 1. The x axis in Figure 1 represents the level of black representation of the workforce group from 0 (indicating no black representation) to three (indicating that black workers were overrepresented by three times the general population). A measure of 1 on the x axis indicated that black decision makers in the district were represented at an identical rate to black members of the general population of the district.

Table 3. HGLM Cross-Level Interaction for Offender Race and Judge and Prosecutor Representation

Note: Cross-level models only run on prison y/n outcomes due to the face that race was not significant in Prison-length random-effects models.

^* p<0.10, ^**p<0.05, ^***p<0.01

Note: The x axis represents the level of black representation of the workforce group from 0 (indicating no black representation) to 3 (indicating that black workers are overrepresented by three times the general population). A measure of one on the x axis indicates that black decision makers in the district are represented at an identical rate to black members of the general population of the district The y axis represents the predicted probability of incarceration.

Figure 1. Predicted Probability of Incarceration for White and Black Defendants by Various Levels of Judge and Prosecutor Representation

Figure 1 illustrates that the main effect for black defendants on incarceration was conditioned by variable district-level workforce representation, such that the probability of a prison sentence for black defendants decreased, relative to black representation among judges and prosecutors. While an overwhelming majority of federal offenders were sentenced to a term of imprisonment regardless of the racial group balance in district court workforce representation, at lower levels of black judge and prosecutorial representation, black offenders were slightly more likely to be incarcerated than whites. Conversely, at higher levels of black representation, white offenders were slightly more likely to be incarcerated than blacks. For example, as black representation among prosecutors increased from zero (indicating no black representation among workers) to three (indicating a prosecutorial workforce that was three times more likely to be black as the general population of the district), the likelihood of incarceration for a black defendant decreased from 96.6 to 93.2 percent. The effect of black representation among prosecutors had a notably stronger effect on sentencing than did black representation among judges. These findings appear to confirm the importance of racial group balance among authorities of social control. Indeed, black and white offenders appeared to be disadvantaged by their respective underrepresentation among authorities of social control. These findings underscore the group dynamics of race, representation, and sentencing, and particularly how racially representative groups of prosecutors manage to alter the race relations of federal sentencing.

Discussion and Conclusion

Racial disparity in federal sentencing and other criminal justice outcomes remains a pressing concern in the United States. Various theoretical and policy perspectives suggest that greater racial and ethnic group parity in sentencing and other criminal justice outcomes may be obtained where power and influence in criminal social control are more equitably distributed among racial and ethnic groups. However, there has been little specific attention to these differential power relations, or progress specifying the kind of representation necessary to achieving equity in justice administration. This article set out to determine whether variation in racial group balance in representation among key federal court authorities relates to variation in sentencing generally, and racial parity in sentencing particularly, considering tens of thousands of cases sentenced in 89 federal districts.

Previous research on legal decision maker diversity and court outcomes yields mixed results. Much of the prior research focuses on differences between individual judges, and while some authors suggest that nonwhite judges are more lenient or even-handed in sentencing than their white counterparts (Gottschall 1983; Holmes, Hosch, et al. 1993; Welch et al. 1988; Scherer 2004), others conclude that nonwhite judges are largely indistinguishable from their white counterparts (Uhlman 1978; Schanzenbach 2005; Spohn 1990a, 1990b; Walker & Barrow 1985). Further, some researchers suggest that black judges are particularly severe in sentencing decisions, especially in cases involving black defendants (Spohn 1990b; Steffensmeier & Britt 2001). Few of these consider the group dynamics of court work organizational diversity, including proportional representation across categories of court actors, or in relation to area population. This oversight limits sociological understanding of the race relations of sentencing by overlooking the group dynamics of relative power or influence, which may be salient to the orientations of individual court actors and to the focal concerns and outcomes of court organizations.

Our article advances understanding of the contextual determinants of sentencing by empirically assessing the expectations that racial group “power” differentials relate to equity in social control. According to the group power threat perspective, other conflict theories of social control, racial attitudes research, and expectations of public policy, black defendants should be disadvantaged by the lack of black representation among court actors (Blalock 1967; Jackson 1992; Braithwaite 2002; Rachlinski et al. 2009; U.S. Department of Justice 2003). Using more contextualized measures of workforce diversity, we assess whether equal racial group representation among key authorities of federal sentencing—prosecutors and judges—relates to the racially equitable distributions of sentencing outcomes. Overall, we find moderate support for our research hypotheses. We find a statistically significant mediating effect of black judge and black prosecutor representation on defendant race and the likelihood of being sentenced to prison. In districts with increased black representation among prosecutors, and to a lesser degree among judges, black defendants are less likely to be imprisoned and white defendants are more likely to be imprisoned. Our findings suggest that black and white defendants are more likely to face equal odds of incarceration in contexts of proportional representation than in contexts of either black or white overrepresentation among key federal court authorities (see Figure 1).

As we have noted, a large body of theory, research, and public policy suggests that greater racial and ethnic group balance in representation among authorities of social control may increase racial parity in criminal justice outcomes, yet empirical research has provided little evidence of this effect. Our findings regarding the odds of incarceration for white and black defendants suggest that balance in racial group representation among court authorities does relate to greater equity in outcomes, and that imbalances in racial group representation among court authorities may favor each group alike. Greater black representation among prosecutors increases odds of incarceration for white defendants, perhaps in part for a lack of implicit white preference among these officials and their relatively greater black preference (Rachlinski et al. 2009). Meanwhile, we find that districts with white overrepresentation among prosecutors are uniquely likely to incarcerate blacks, perhaps for their lack of black influence on the “pool” of implicit bias among prosecutors and other officials, and the lack of counter-stereotypical contacts, which may moderate the influence of implicit bias on decisionmaking behavior.

Our finding of more balanced odds of black and white defendant incarceration in more representative court contexts may reflect influences of implicit racial bias (Greenwald & Krieger 2006), as well as “social tuning” (Lowery et al. 2001; Sinclair et al. 2005), in contexts of greater power balance among key court authorities. First, black authorities may counter white preferences with their own in-group favoritism, advantaging black defendants in districts with greater black court workforce representation. While we do not assess black and white prosecutors' race-related attitudes or decisionmaking behaviors, differences in these orientations might manifest in a range of processing decisions, such as charging and plea bargaining, assessments of harm and crime severity, and responses to different categories of crime (i.e., white collar vs. street crimes), involving white and black offenders.

Perhaps more significant, black representation among court authorities may alter the directions and magnitude of implicit racial bias, introducing explicit or implicit black preference, reducing the influence of white preference, and limiting the activation of stereotypical associations that disadvantage blacks, among all court participants (i.e., black, white, and other judges and lawyers, jurors, etc.). Research on the ability to manage the activation or influence of implicit bias suggests the difficulty of such control, but that it may be facilitated by contextual circumstances, including experiences of out-group contact and counter-stereotypical cues (Lowery et al. 2001; Lane et al. 2007; Kang 2004). Black representation among higher-prestige court authorities may be especially significant in terms of this influence on the racial consciousness, attitudes, and behaviors of others (Dunham et al. 2006). In this study, increased black representation among prosecutors had a much stronger conditioning effect on defendant race, and the likelihood of being imprisoned, than black representation among judges. These findings suggest that black representation among prosecutors is especially important to court outcomes. As we have noted, this importance may relate to both structural and social psychological aspects of courts. Inclusion among these powerful law enforcement officials not only enables black authorities to express a relative black preference and lack of white preference in case processing decisions, but presence in this particular high-prestige law enforcement role (i.e., representative of “the people”) may also symbolically disrupt dominant racial paradigms of race, crime, and justice, providing counter-stereotypical racial cues that may attenuate the activation or behavioral influence of automatic racial stereotypes shown to be common to whites and nonwhites alike, albeit to varying degrees.

Of course, our findings and conclusions must be considered in light of the limitations of this research. First, our analysis offers a very limited assessment of the race relations of sentencing, including relative racial group power in criminal social control, across federal districts. By limiting our analysis to black representation and black defendant sentencing, we are unable to account for the full complexity of racial and ethnic group relations in federal district courts and their significance to sentencing. Additional and improved measures of representation within court communities would be needed to fully assess racial group power relations within federal districts, and their relevance to court outcomes. Such measures might include indicators of relative group power in broader political and economic domains, among other court actors and law enforcement officials, and provide more specific insight on individual racial identities and racial group cohesion (Jackson 1992).

Our models also only partially measure court workforce representation. Examining representation among judges and prosecutors, alone and collectively, advances understanding of workgroup diversity, but these are only two of the critical categories of influential actors in federal court organizations. Our findings suggest that variable forms or thresholds of representation within individual roles, and across court work groups, may distinguish the organization of decisionmaking. Understanding the mechanisms linking federal court workforce representation and sentencing requires closer consideration of courtroom work group dynamics, including how prosecutors and judges interact in variably representative courts, and how representation among federal probation officers, federal defenders, and still other court officials (i.e., pretrial services and marshals) and actors (i.e., witnesses and jurors) further conditions the race relations of sentencing.²⁴

In addition, our models only identify correlations of court work group representation to sentence severity, and racial disparities in sentence outcomes, controlling for other case and court contextual factors. While this provides perspective on whether something substantively different transpires in “sentencing worlds” distinguished by more and less racial group representation, it does not explain the relationship between the balance of court workforce representation, court processual orders, and case outcomes. Here we should again note the absence of individual-level decision maker data, and that we only consider group representational characteristics in relation to district-level outcomes, rather than individual decision maker attitudes and behavior. As such, while we consider racial attitudes research a potential resource in explaining the mechanisms behind our observations, our analysis does not specifically assess the attitudes and behaviors of individual decision makers, of various racial backgrounds, in variously representative courts.

Finally, there are limits to employing sentence outcomes to study racial disparity in justice processing. In particular, our case data only contain individuals who are prosecuted and convicted (either via plea or trial) and receive a sentence in federal courts. Police, prosecutors, and other variably representative law enforcement and legal decisionmaking entities influence earlier and later stages of these cases, many of which impact defendant selection into prosecution, sentencing outcomes generally, and sentencing disparity in our sample. Ostensibly race-neutral legal process variables (i.e., offense levels, criminal history) may nevertheless be racialized through other stages of legal processing. This is therefore a partial and perhaps very conservative consideration of racial group balance in legal decision maker representation and racial parity in criminal justice outcomes.

Race clearly matters in federal courts; however, it remains difficult to say exactly how. Further research on racial and ethnic group representation in federal courts is needed to fully understand the “diversity” of these groups from a social organizational perspective. While it is encouraging that districts with greater balance in representation are characterized by relatively equal odds of incarceration, here we can only begin to interpret the bases of these developments. Future court organizational and decisionmaking research should seek to clarify why and how balance in workforce representation appears to advance racial justice and should incorporate additional racial and ethnic groups in more comparative studies.

Although the effects we find are relatively small, involving slight departures from still severe sentencing trends (i.e., high odds of incarceration in every case), the relationship is noteworthy. The apparent significance of black representation among federal court authorities to sentencing severity and racial disparity is anticipated by power-threat theories, diversity advocates, and research on implicit bias, but it is somewhat surprising considering the historical and institutional context of legal decisionmaking we consider. Diversification of the justice workforce coincides with efforts to limit subjectivity and discretion in decisionmaking, efforts that seem to be in some tension with ideals of multiculturalism, insofar as nonwhite or female workers are expected to introduce new values or perspective to these deliberative milieus. Presumptive federal sentencing guidelines are an extreme example of this paradox of routinization in the midst of workforce diversification.

We do not specifically study patterns of adherence to the guidelines; however, controlling for their application, we observe their major influence on sentencing; yet that balance in legal decision maker representation still relates to sentencing in the districts. As such, guidelines appear to provide a particular structure for race effects in sentencing, rather than eliminate the significance of race. As Johnson and colleagues (2008) recently reported, the social contexts of district courts appear to affect the application of the guidelines, including the tendency to adhere to or depart from prescribed sentences. Our findings suggest that varying racial group balance in representation among authorities in federal court organizations, and prosecutors in particular, may be among the contextual determinants of persisting sentencing variation under guideline systems.

Since these sentencing data were collected, federal sentencing guidelines have become less stringent. Strict rules of adherence to the guidelines supported by Congress in the late 1990s and early 2000s (i.e., the Feeney Amendment) were weakened when the Supreme Court held that judicial decisions to enhance sentences through upward departures violate the Sixth Amendment (United States v. Booker 2005). Since Booker, the U.S. Sentencing Commission continues to monitor district court adherence to the guidelines. Preliminary results suggest that while Booker formally made the guidelines advisory, subsequent judicial decisions and sentence outcomes may not substantially differ from those seen under guideline sentencing (Hofer 2007). Yet given evidence of district-level variation in sentencing outcomes prior to Booker, and that federal sentencing severity and parity relate to racial group representation among court authorities, even in the context of strict guidelines, future research should examine how racial group balance in federal court workforce representation relates to sentencing under presently more advisory guideline systems.

To be sure, our findings do not necessarily suggest that the absence of sentencing guidelines will unleash racial in-group favoritism and out-group disadvantage in variously diverse courts. Rather, we arrive at a more complex picture of the salience of racial group balance in federal court workforce representation to severity and racial parity in sentencing. As both the power-threat thesis and racial attitudes research suggest, black offenders are disadvantaged somewhat in federal districts lacking black representation among key authorities, where they face a greater likelihood of incarceration, than in districts with greater black representation among judges and prosecutors. Of course, black and other defendants convicted in any district, irrespective of workforce representation, faced near-certain prison sentences in the period we consider. However, the odds of incarceration for all defendants decreased slightly in districts with greater black prosecutorial representation, and these odds appeared to be more literally balanced along certain racial lines, that is, among black and white offenders, in districts with more racially equitable workforce representation.

Yet the importance of workforce representation is not likely limited to individual decision maker orientations and behavior and may have more to do with its contextual influence on racial consciousness, attitudes, and behaviors within court organizations. Our finding of relatively equal odds of black and white defendant incarceration, in more equally representative court contexts, may reflect influences of implicit racial biases, as well as social tuning, in contexts of greater power balance among key court authorities. First, black authorities may counter white preferences with their own in-group favoritism, advantaging black defendants in districts with greater black court workforce representation (Rachlinski et al. 2009). In addition, black representation among court authorities may shift and limit the magnitude of implicit racial bias, by both by altering the relative weight of white and black preferences and limiting activation of stereotypical associations that disadvantage black defendants (i.e., among judges and lawyers, juries, etc.; Sinclair et al. 2005).

Indeed, an encouraging aspect of recent research on implicit bias is its potential to inform strategies for controlling the impact of bias on decisionmaking and other behaviors. Several studies suggest that altering the nature of out-group “contact” may be effective in limiting the influence of implicit racial bias. In this study, the observed significance of balance in workforce representation is likely for some combination of direct nonwhite group influence in case processing (i.e., the balance of white and black preference in proposed sanctions) and its indirect influence on the salience of race within particular case and court contexts (i.e., levels of racial apathy and social tuning of stereotypical associations). This direct and indirect influence may explain the narrowing of the incarceration odds gap as representation approaches statistical parity, and why white and black defendants appear to enjoy favoritism in contexts of either white or black overrepresentation among key authorities. Thus, if defined only to mean an equal chance of incarceration, a certain expression of racial justice appears to be served by balancing court workforce representation. In the federal courts we consider, the benefit is perhaps best described as that of an “equal opportunity hammer,” as a black federal prosecutor we interviewed characterized their role, suggesting the limited but worthy contribution of equal workforce representation to equal justice under punitive criminal law.