From our mailbag (edited for clarity):
Hi. I have a question specifically on studies relating to what is considered the institutional racism against African Americans in the criminal justice system. I was told the many studies that show a disparity between Whites and Blacks in sentencing, which is said to prove racial bias in the justice system, are invalid due to the fact that they do not take into account how many Black people on average are held in contempt of court, and lawyer ability. Because of the lack of ability to even take these things into account, a study that studies the racial bias on sentencing is invalid and uncredible in its conclusions that there is racial bias.
Is this true? Are so many studies completely uncredible now because they are simply unable to take into account contempt of court averages? Or lawyer ability? Thanks
****
Dear reader,
I see two questions here:
- Are there studies on sentencing bias that take into account the skill of the lawyers involved, and the possibility that Black people could be held in contempt of court more often than non-Black people?
- If studies don’t take these things into account, are they incorrect to conclude that institutional racism is present?
Let’s take them one at a time.
The answer to question one is yes. Yes, research exists examining the relationship between lawyer skill, or contempt of court frequency, and criminal justice outcomes for Black people.
Research on the relationship between lawyer skill and outcomes is contradictory as to whether having a skilled attorney matters. Part of the problem is that “skill” is difficult to measure, and different studies have defined it in different ways when trying to capture it. This difficulty also means that research with precise operationalizations of skill is thin on the ground. Nonetheless, the work is out there. For some examples, check out Abrams and Yoon (2007), Shinall (2010), and Wright and Peeples (2013).
Research on the relationship between race and specifically being held in contempt of court is similarly thin, but again, not nonexistent. Chappell writes: “Using data from two mid-Atlantic states, [Peck et al. (2015)] found that Blacks were more likely to get detention and be adjudicated delinquent for most offenses types, including status offenses, probation violations, and contempt. Other research has also found that Blacks are disadvantaged in contempt cases (Bishop & Frazier, 1996; Haynes & Dion, 2011)” (2019:1030).
Now let’s move to question two. If research on sentencing disparities neglects these factors, would that research be wrong to conclude that institutional racism is present? Generally, no. There could be some very specific exceptions, depending on how the analysis is constructed, but “no” is a safe answer. The reason for this is that the influence of racism lives upstream from, downstream from, inside, and parallel to these factors. That’s what it means for racism to be institutional.
While it is true that the caliber of legal representation can impact individuals’ access to justice, Black and Brown communities have a disproportionately difficult time locating counsel, let alone effective counsel, which ultimately results in their incarceration by the criminal legal system.
It is common knowledge that the entire legal system is jammed and overloaded, but so are attorneys, the actual people representing clients. Public defenders are among the most overwhelmed attorneys. They represent indigent clients, who are primarily Black and Brown. A study from the Justice Policy Institute (2011) found that 73% of public defender offices lack the requisite number of attorneys to meet caseload standards. Currently in New York City, public defender organizations are fighting to receive a larger budget–$130 million–from the state. With the increased budget they will be able to provide better services and quality representation to clients. The increased budget would help to combat attrition rates, increase salaries, and aid in going through the thousands of backed-up cases in courts that leave accused people in custody (Caines et al 2024; Hayward 2023).
Because of the underfunding of these institutions, there is a scarcity of attorneys able to represent poverty-stricken clients. A 2022 analysis of Oregon’s public defense system and attorney workloads, called The Oregon Project, found that the 592 attorneys working in indigent defense are tasked with a workload that would require almost 1900 attorneys to provide adequate representation. The compensation packages for public defenders and assigned counsel are relatively modest, deterring attorneys from pursuing careers in indigent defense. This, in turn, contributes to a deficit of legal professionals, leaving a surplus of individuals entangled in the judicial system without sufficient representation (Gross 2023).
Because of this shortage and the government’s reluctance to appropriately fund public defender offices, public defenders wind up spending less time on each client than what is deemed sufficient to provide effective counsel. In Missouri, it is recommended that a public defender spend 106.6 hours on a murder case, but in reality they spend 84.5 hours (Domonsoke 2016). A 2013 analysis of data provided by the Bureau of Justice found that the average public defender handles a little more than 100 felonies each year (Lee, Levintova, and Brownell 2013). That number, according to research co-authored by the American Bar Association Standing Committee on Legal Aid and Indigent Defense, should be less than 60 for the least taxing felony cases, and less than seven for the most serious (Pace et al. 2023:xii).
Public defender overload causes the accused to lose trust in the system, which is why they would rather take a plea deal. People lose hope in the system because they are aware of the unfortunate reality of indigent defense attorneys, often experience the backed-up court system, lose faith in due process, and take a plea deal to move on with their life, when there could have been a completely different outcome. If the government invested more in the institution of public defenders than they did on corrections, then maybe folks could get the representation that they need and deserve as Americans.
Just as attorney skill is inflected by racism, so too is contempt of court frequency. Some reasons why Black Americans might be held in contempt of court at a higher rate than their counterparts include: exasperation with the system, its role as a tool of oppression, and efforts to dehumanize and lock them into a racial caste system. In one case, both attorneys were called to the bench to discuss something pertaining to a defendant, a Black man, and he became upset that they were discussing matters that could have a significant impact on his life without him. He exclaimed, “this is my life we’re talking about here” (Clair 2020:16). These expressions of passion and frustration with a system that is actively working against this maligned population occur frequently in court, leading to their contempt of court penalties. But because their counterparts are not targeted as aggressively, they do not experience the same level of tension and anxiety as African Americans do.
According to King and Johnson (2016), people with darker skin and afrocentric features are more likely to be sentenced comparatively harshly. Not only does this apply to actual African Americans, but even white defendants with more afrocentric appearances and facial features were treated more punitively compared to their eurocentric-presenting counterparts. Additionally, prosecutors usually ask judges for sentencing leniency when the defendant cooperates with law enforcement. However, data show that prosecutors are more likely to request leniency for white defendants than they are for Black defendants (Blakemore 2016).
Institutional racism is an ongoing and persistent problem in the United States, particularly within the criminal legal system. It is essential to keep in mind that our “justice system” looks the way it does not only because of its flaws, but because it functions as intended. Even if you neglect to pull out a piece of the machine to examine it individually, such as attorney skill, a larger picture can still coalesce around that piece. The journey that African Americans must take to obtain representation for their cases, as well as the difficulty in finding a public defender who will devote the necessary time to their cases, exacerbates existing disparities and contributes to the biases that African Americans face within the system. When considering contempt of court frequency, we must also take into account the high emotions and stress that African Americans can experience in this context, due to feelings of underrepresentation, neglect, and uncertainty about their futures.
References
Abrams, David S., and Albert H. Yoon. 2007. “The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability.” The University of Chicago Law Review 74(4):1145–77.
American Bar Association Standing Committee on Legal Aid and Indigent Defendants. 2022. The Oregon Project – an Analysis of the Oregon Public Defense System and Attorney Workload Standards.
Anon. 2011. “Overloaded Public Defense Systems Result in More Prison Time, Less Justice.” Justice Policy Institute. Retrieved July 12, 2023 (https://justicepolicy.org/press/overloaded-public-defense-systems-result-in-more-prison-time-less-justice/).
Bishop, Donna M., and Charles E. Frazier. 1996. “Race Effects in Juvenile Justice Decision-Making: Findings of a Statewide Analysis.” The Journal of Criminal Law and Criminology 86(2):392. doi: 10.2307/1144031.
Blakemore, Jessica. 2016. “Implicit Racial Bias and Public Defenders.” Georgetown Journal of Legal Ethics 29(4):833–49.
Caines, Wesley, Lisa Schreibersdorf, Tina Luongo, Alice Fontier, Stan German, and Lori Zeno. 2024. “Re: New York City Public Defenders Legislative Priorities for Criminal Legal System Reforms.”
Chappell, Allison T. 2019. “Predicting the Behavior of Law in the Juvenile Court: A Focus on Noncompliance Cases.” Crime & Delinquency 65(8):1027–49. doi: 10.1177/0011128718787156.
Clair, Matthew. 2020. “Being a Disadvantaged Criminal Defendant: Mistrust and Resistance in Attorney-Client Interactions.” Social Forces. doi: 10.1093/sf/soaa082.
Domonoske, Camila. 2016. “Overworked and Underfunded, Mo. Public Defender Office Assigns Case — to the Governor.” NPR, August 4.
Giulia Heyward. 2023. “NYC Officials Won’t Confirm If More Raises Are on the Way for Public Defenders.” Gothamist, May 17.
Haynes, D., and C. Dion. 2011. Juvenile Who Are Involved within the Department of Juvenile Justice System in Pinellas County. Pinellas county, FL: Pinellas Data Collaborative.
John Gross. 2023. “Reframing the Indigent Defense Crisis.” Harvard Law Review. Retrieved July 12, 2023 (https://harvardlawreview.org/blog/2023/03/reframing-the-indigent-defense-crisis/).
King, Ryan D., and Brian D. Johnson. 2016. “A Punishing Look: Skin Tone and Afrocentric Features in the Halls of Justice.” American Journal of Sociology 122(1):90–124. doi: 10.1086/686941.
Lee, Jaeah, Hannah Levintova, and Brett Brownell. 2013. “Charts: Why You’re in Deep Trouble If You Can’t Afford a Lawyer.” Mother Jones, May 6.
Pace, Nicholas M., Malia N. Brink, Cynthia G. Lee, and Stephen F. Hanlon. 2023. National Public Defense Workload Study. RAND Corporation.
Peck, Jennifer H., Michael J. Leiber, Maude Beaudry-Cyr, and Elisa L. Toman. 2016. “The Conditioning Effects of Race and Gender on the Juvenile Court Outcomes of Delinquent and ‘Neglected’ Types of Offenders.” Justice Quarterly 33(7):1210–36. doi: 10.1080/07418825.2015.1080851.
Shinall, Jennifer Bennett. 2010. “Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes.” Vanderbilt Law Review 63(1):267–306.
Wright, Ronald, and Ralph Peeples. 2013. “Criminal Defense Lawyer Moneyball: A Demonstration Project.” Washington and Lee Law Review 70(2):1221.
