WASHTNEAW COUNTY, MI — A study of Washtenaw County’s circuit court has shown white defendants are more likely to be given harsher sentences than their Black counterparts, in addition to revealing individual judges’ sentencing practices.
A study conducted by the University of Michigan Criminal Justice Administrative Records System looked at more than 4,100 cases sentenced between 2015 and 2019 in Washtenaw County’s 22nd Circuit Court, specifically exploring variation in sentencing practices across judges.
“The goal of Michigan’s judiciary must be individualized sentences without disparity due to the race or ethnicity of the defendant,” said Tom Boyd, state court administrator, in a statement announcing the study. “This study will help trial judges become aware of disparities, so that they can take action to make sure their courts treat all defendants equally.”
The study found judges were varied in how they sentenced cases where prison time was mandated. It specifically looked at whether individual judges sentenced below, within or above the recommended length of sentence.
While Judge Carol Kuhnke gave Black defendants sentences below the recommended range roughly 30% of the time, Judge Darlene O’Brien did so 50% of the time. However, O’Brien gave Black defendants sentences in the bottom third of the range just 23% of the time, compared to the 48% of the time similar sentences were given by Kuhnke.
White defendants were given below-range sentences roughly 30% of the time, regardless of who was sentencing. Judges Archie Brown and David Swartz sentenced white defendants to the bottom third more than 37% of the time, while Kuhnke and O’Brien did so fewer than 29% of the time.
Overall, 77% of Black defendants were sentenced below or in the bottom third of the recommended range, compared to 64% of white defendants. Of the more than 4,100 cases looked at in the study, 55.7% involved Black defendants, while 44.3% involved white ones, according to the study.
“I wouldn’t expect every judge to look the same,” Kuhnke, who has served as the chief judge of the 22nd Circuit Court since 2019, told MLive/The Ann Arbor News. “I will say that probably the biggest reason that we were very interested in doing this work is because we can’t achieve equity without transparency.”
The study was done in partnership between the court and the State Court Administrative Office, Kuhnke said, adding there are plans to make similar data available statewide.
“Chief Judge Kuhnke is to be commended for supporting this important work, for playing a key role in helping it move forward, and for wanting it to be widely shared,” Boyd said in an email to MLive/The Ann Arbor News. “Her commitment to equity and transparency is an example for judges statewide.”
The study also looked at cases in which the judge could choose between a variety of sentences, spanning from probation alone to prison time.
For every case, the court creates a Prior Record Variable score (PRV) and an Offense Variable score (OV), using the defendant’s previous record and current offense details. The scores are then entered into a sentencing guideline grid to provide proper sentencing guidelines to judges.
Black defendants were more likely to receive higher sentencing guidelines when compared to white defendants, according to the study.
But, as both the report and Kuhnke pointed out, higher scores can also be a result of other factors in the judicial system.
“I would have been surprised if there was absolutely nothing — if the result was that Black people and white people are sentenced exactly the same,” Kuhnke said, adding the study tried to account for other disparities. “We know that racism is baked into our society from A to Z.”
However, the study found that the sentencing scores did not fully account for which defendants were sentenced to prison. While both Black and white defendants were given sentences of prison or jail alone at similar rates, regardless of judge, variations were apparent for sentences of probation alone or jail and probation.
For cases in which judges could choose what type of sentence defendants received, O’Brien was more likely than her peers to sentence white defendants to jail and probation, while significantly less likely to give a sentence for probation alone for defendants of either race.
The study is an important step in transparency, O’Brien said in an email to MLive/The Ann Arbor News.
“I always strive to treat every person who appears before me fairly and to impose just, individualized sentences without regard to race or ethnicity,” O’Brien wrote. “…A more in-depth analysis will likely reveal other important factors not considered here…”
Other factors could include prior sentences given to the defendant, repeated victimization of the same person or whether an agreement had been reached between defendant and prosecution, O’Brien said.
“I think every judge can do better,” Kuhnke said. “I know that we work regularly to improve our decision making and to achieve the most equitable and fair results that we can. Being able to see it like this is helpful.”
The study was inspired by a 2020 study conducted by Citizens for Racial Equity in Washtenaw that found Black defendants receive more charges, more convictions and harsher sentences than whites, Kuhnke said.
“The courts are mysterious,” Kuhnke said, “and we want to take away some of that mystery and let the public see what we’re doing so that we can be held accountable and we can hold ourselves accountable.”
Read the full study here.
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