In doing this Abrams and his team of researchers took advantage of a variable that is random: the cases that judges are assigned. Rather than directly trying to answer how biased, or not biased, judges are, we looked at the variability across judges in their sentences between black and white defendants, which we call the racial gap," he says. "What we did is change the question a little bit. So to figure out if biased judging actually played a role in this, Abrams came up with a novel workaround. That same year, black males were incarcerated at six-and-a-half times the rate of white males. Abrams notes in his study that though 13.2 percent of the population is black, in 2008, 38 percent of sentenced inmates in the United States were black. There are numbers that are certainly indisputable. Making sure that everyone gets the worst outcome is not going to necessarily address the problems. "In this case the jury did give a conviction, but there's evidence that black defendants are more likely to be convicted than white defendants." Then there's the ability to post bail pre-trial, which research from the Sentencing Project shows leads to better trial outcomes, and to hire a defender. It snowballs as someone goes through the system." This starts with the likelihood of being arrested. "There are racial disparities at each stage of the process. "Prosecutors are likely to charge people more harshly if they're black than if they're white," she says. Ghandnoosh explains that this illuminates how racial bias pervades every stage of the criminal justice system. The differing charges brought against the two defendants-one white, one black-is an injustice itself, but it's one that's important to distinguish. The prosecution originally tried to go after the 20-year-old for two counts of rape, but those charges were dropped, baffling everyone who has read the testimony from the victim-who was found behind a dumpster without underwear-and the police reports. Banks was charged with forcible rape and kidnapping, while Turner wasn't even charged for rape. But the difference in their sentencing outcomes comes down to their charges and not just bias. Banks's case is appallingly tragic: He was tried as an adult when he was a minor and similarly had no prior record. "Some of the other kinds of crime that I've seen people compare it to are just of a different nature." For example, ex-football player Brian Banks, who served five years in prison for a rape he did not commit, has been held up as a foil to Turner. "There's a whole variety of crimes that would fall under sexual assault and rape, so it's important to compare to something similar," Ghandnoosh says. Nazgol Ghandnoosh, a research analyst with the Sentencing Project, also mentions that when comparing the race of defendants and their sentences, it's important to note the charges. That can help, but it can't eliminate the basic problem." In other words, it's been impossible to tell how race affects sentencing because it's impossible to isolate it from the other factors that could be at play in the courtroom, like "how you dress, how you speak, and other things that might affect the sentence length that aren't necessarily about race but are probably correlated with it." "The way most studies go about it is to try to run a regression on control variables that they think might impact the outcome besides race. "The basic problem that plagues almost every study that tries to look at the role of race in criminal sentencing is that you can't randomly assign race, because that's what you do when you want to do an experiment," Abrams told me. In his 2012 study, " Do Judges Vary in Their Treatment of Race?," David Abrams, a professor at the University of Pennsylvania Law School, points this out. Read more: Biased Policy May Be Putting Domestic Violence Victims in Jail However, statistical attempts at teasing out racial bias in courts have been surprisingly non-definitive. As witnessed by the "affluenza teen" who received a 720-day jail sentence for killing four people while driving drunk, this certainly seems true. If Turner were black, they say, he would be under the jail. The ruling has spurred a recall effort against Persky that now has over 200,000 backers, and commenters on Twitter and bloggers have pointed to Turner's light sentencing, which he intends to appeal, as a sign of our criminal justice system's inherent bias in favor of the white and privileged. I think he will not be a danger to others," Judge Aaron Persky said in his decision. "A prison sentence would have a severe impact on him.
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