There’s plenty of evidence of racial bias in the criminal justice system. But there’s another piece to this that hasn’t been detailed until now: Judges nominated by Republican presidents give black defendants harsher sentences.
An exhaustive new Harvard study analyzed data on more than half a million defendants and about 1,400 U.S. district court judges over 15 years. It found that, compared with Democrat-nominated judges, GOP-nominated judges sentence black defendants to three more months than nonblack defendants for similar crimes.
“These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion,” concludes the study, which was first reported last week by The New York Times.
It’s too early to tell what effect, if any, President Donald Trump’s judges are having on racial disparities in sentencing. But given that some of his judicial nominees have records of being racist, and others have extreme views on crime and punishment, civil rights advocates say the study’s findings only add to their concerns that black people won’t be treated fairly by Trump’s judges.
“Trump’s judicial nominees in particular are demonstrating what we see as a breathtaking hostility toward equal rights,” said Todd Cox, director of policy at the NAACP Legal Defense and Educational Fund.
Take Thomas Farr, who is awaiting Senate confirmation to the U.S. District Court for the Eastern District of North Carolina. He drafted North Carolina’s voter suppression law, defended racially discriminatory gerrymandering and may have lied to the Senate about his role in disenfranchising black voters when he worked for the late Sen. Jesse Helms (R-N.C.).
Wendy Vitter and Andrew Oldham, two other pending judicial nominees, refused to say during their confirmation hearings if they supported the outcome of Brown v. Board of Education, the landmark 1954 ruling that struck down school segregation.
“I found it very revealing and scary in light of her record,” Kristine Lucius, executive vice president for policy at The Leadership Conference on Civil and Human Rights, said of Vitter’s non-response on the issue.
Vitter, who is awaiting Senate confirmation to the U.S. District Court for the Eastern District of Louisiana, has also been criticized for buying a house in 2004 with a deed stating the house could only be sold “to people of the white race.” She and her husband, former Sen. David Vitter (R-La.), said they were not aware of the racially restrictive covenant.
“Brown v. Board of Education is just one of those things that people don’t hedge on,” Lucius said. “I have to read it in the context of her record: She is an extreme ideologue.”
One of Trump’s judges couldn’t say if racial bias exists at all in the criminal justice system. Michael Brennan, whom Republicans confirmed last month to the U.S. Court of Appeals for the 7th Circuit, stunned Democrats during his confirmation hearing by refusing to answer that question. He had already been a county trial judge for nine years.
“You’re a judge in the United States of America and you have not looked at issues of race in sentencing and the criminal justice system?” asked an incredulous Sen. Cory Booker (D-N.J.). “I find this astonishing.”
Electric shocks for prisoners?!
Some of Trump’s other confirmed judges have taken harsh positions on criminal justice.
Stephanos Bibas, who sits on the U.S. Court of Appeals for the 3rd Circuit, once advocated punishing prisoners with “non-disfiguring corporal punishment, such as electric shocks.” Kyle Duncan, a judge on the U.S. Court of Appeals for the 5th Circuit, defended mandatory life sentences for minors with no possibility for parole. Kevin Newsom, a judge on the U.S. Court of Appeals for the 11th Circuit, has argued that the execution of minors doesn’t violate the Constitution.
“In fact, the Trump administration is naming judges with the express purpose of being harsher on criminal defendants who are coming to the courts,” said Nan Aron, president of Alliance for Justice, a left-leaning judicial advocacy group.
A major factor in all this, she argued, is that Trump hasn’t picked any criminal defense lawyers or public defenders to be judges ― people who have a richer understanding of the criminal justice system. Instead, Trump is going to great lengths to nominate people for ideological reasons or because of their ties to conservative groups like the Federalist Society, she said.
“It’s hardly surprising that they will in the future rule against individuals who are in the criminal justice system or on the civil rights plank,” said Aron.
Trump has been nominating judges at a breakneck pace, and Senate Republicans have broken records in their race to confirm them. To date, Trump has confirmed 21 circuit court judges ― more than any other president, ever, at this point in their presidency ― as well as 18 district judges and a Supreme Court justice.
The Harvard study estimated that a Republican president has the potential over four years to alter the partisan composition of district courts by more than 15 percentage points, potentially increasing the racial disparities in sentencing by 7.5 percent.
But Carl Tobias, a University of Richmond law professor and an expert on judicial nominations, said it’s tricky to gauge how much Trump’s judges will exacerbate racial inequality in the justice system.
For one thing, Tobias said, Trump has been heavily focused on confirming circuit court judges, and the study only looked at district court judges. And while the president’s circuit court picks are very conservative, his district court picks may not be as extreme. The White House is largely deferring to home-state senators to pick these nominees, he said, and senators “seem to stress competence.”
Still, Tobias said he understands why many are worried that Trump’s judges may perpetuate sentencing disparities “at least as troubling” as the existing ones the new study found. One area worth close attention, he said, is how the president’s judges rule in cases involving LGBTQ matters, since nearly one-third of Trump’s picks have records of being anti-LGBTQ.
“It will be important to monitor Trump judges’ rulings on LGBT issues to detect whether there will be disparities in this area that resemble those involving race and gender,” he said.