In this summer of our racial discontent, with nationwide demonstrations against police shootings of Black people and systemic racism across all institutions, a study released Wednesday by the Criminal Justice Policy Program at Harvard Law School, where I teach, could not be more significant.
Harvard researchers were enlisted in 2016 by Massachusetts Supreme Judicial Court Chief Justice Ralph Gants to look at the factors that contribute to the large racial disparities in incarceration rates. The Massachusetts Sentencing Commission had found that, in 2014, Black people in the state were imprisoned at a rate nearly eight times that of white people, and Latinx people nearly five times that of white people. In fact, Massachusetts had the dubious distinction of outpacing national disparity rates, ranking the highest in disparities for Latinx and 13th highest for Black people. Though hampered by the poor record-keeping of public agencies, the bullet points were jaw-dropping:
White people make up roughly 74 percent of the state’s population while accounting for 58.7 percent of cases in the Harvard study’s data. Black people make up just 6.5 percent of the population and account for 17.1 percent of cases.
Black and Latinx people were not simply overrepresented in the criminal caseload, they also received more severe treatment. They were less likely than white people to have their cases resolved through less severe dispositions like pretrial probation. They received longer sentences than their white counterparts — an average of 168 days longer for Black people and 148 days longer for Latinx people. The differential treatment could not be explained by the nature of the charges: Black and Latinx people charged with drug offenses and weapons offenses received longer sentences than white people charged with similar offenses. Even when Black and Latinx people were charged with offenses carrying mandatory minimum sentences, they were more likely to receive longer sentences than white people facing identical charges.
But the study raises larger issues, not just in what it covered, but also what it did not — or could not — include. It focused on what happened to criminal cases once they entered the Trial Court’s system. It could not analyze the skewed pipeline that led to court to begin with — namely, policing and prosecutorial decisions. A 2014 report on civilian encounters between 2007 and 2010 conducted by the ACLU in collaboration with the Boston Police Department found that although only 24 percent of the Boston population was Black, they were subject to 63 percent of encounters with police; Latinx people, only 12 percent of the population, were subject to 18 percent of such encounters. When the researchers sought arrest data from the police departments in Massachusetts, they came up empty. Many did not bother to answer.
Nor could the Harvard researchers study racial disparity in the charging decisions of prosecutors. The fact that people of color were more likely to face charges that carry mandatory prison sentences translates into plea deals that are more likely to involve longer sentences. In fact, racial and ethnic differences in the type and severity of the initial charge account for over 70 percent of the disparities in sentence lengths, the Harvard researchers found. And that conclusion mirrored a study of the federal system; racial disparities in prosecutors’ decisions about whom to charge with mandatory minimum offenses were a major driver of sentencing length disparities. But while the Harvard researchers sought data from the Massachusetts District Attorneys Association, they received none.
All of this raises another concern — accountability. Judge Gants, to his enormous credit, sought this study to enable the court, over which he presides, to be held accountable for what happens within its walls. It is ironic: The one entity whose decisions are public and subject to appeal — the courts — has taken pains to study itself. Others with even more significant roles in creating a racially disparate system, with considerable discretion about whom to arrest, whom to charge, and how much to charge them with, have not. There are exceptions: Suffolk District Attorney Rachael Rollins has attempted to address racial disparities in charging decisions by not prosecuting certain minor offenses that contribute to them.
An important way to monitor the discretionary decisions of police officers and prosecutors is with data, as the Harvard researchers have tried to do. What do the patterns reveal? Do they reflect racial disparity? Can the data show policy makers how to ameliorate the disparity? Legislation passed in 2018 to create a centralized database for tracking individuals in the criminal justice system has not gone very far to improve the decrepit Massachusetts system. Sadly, the system still relies on the voluntary cooperation of law enforcement officials, who are less than enthusiastic about providing it.
The Harvard researchers deserve to be congratulated for what they have done with what they had. But if we really want to deal with systemic racism within our justice system, this is only a start.
Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.