Criminal Justice Disparities
(Sept. 18, 2021; rev. Oct. 25, 2021)
This page and its subpage (which numbered ten as of the last updating of this page) principally address the mistaken belief that generally reducing adverse criminal justice outcomes (including adverse interactions with the police such as being subjected to the use of force) will tend to reduce (a) relative racial differences in rates of experiencing the outcomes (as commonly presented in terms of the ratio of the Black rate to the white rate) and (b) the proportion Blacks make up of persons experiencing the outcomes (compared with the proportion Blacks make up of the population potentially experiencing the outcomes). As I have explained in many places specifically with regard to adverse criminal justice outcomes since 1996, the opposite is the case.
That is, as I have explained in scores of places with respect to any favorable or adverse outcome since 1987, when two groups differ in their susceptibility to an outcome, generally reducing the outcome, while tending to reduce relative differences in rates of avoiding the outcome (i.e., experiencing the opposite outcome), tends to increase relative difference in rates of experiencing the outcome itself. Correspondingly, reducing the outcome, while tending to increase the proportion the more susceptible group makes up of persons avoiding the outcome (thus reducing all measures of difference between the proportion the group makes up of the population and the proportion it makes up of persons avoiding the outcome), tends also to increase the proportion the group makes up of persons experiencing the outcome itself (thus increasing all measures of difference between the proportion the group makes up of the population and the proportion it makes up of persons experiencing the outcome).
But most people, including most statisticians and other data analysts, are unaware that it is even possible for the relative difference in a favorable outcome and the relative difference in the corresponding adverse outcome to change in opposite directions as the prevalence of an outcome changes, much less that such pattern tends to occur systematically. And most persons who specialize in the analysis of demographic differences – whether regarding criminal justice, school discipline, borrowing, or meeting voter requirements – mistakenly believe that reducing an adverse outcome will tend to reduce (a) and (b) for the outcome. References explaining this matter in the criminal justice context include “A Criminal Justice Reform Premise That Is Statistically Flawed,” Law360-Access to Justice (Apr. 5, 2021), “Usual, But Wholly Misunderstood, Effects of Policies on Measures of Racial Disparity Now Being Seen in Ferguson and the UK and Soon to Be Seen in Baltimore,” Federalist Society Blog (Dec. 4, 2019), “The misunderstood effects of the Baltimore police consent decree,” The Daily Record (Feb. 15, 2018), “United States Exports Its Most Profound Ignorance About Racial Disparities to the United Kingdom,” Federalist Society Blog (Nov. 2, 2017), “The Pernicious Misunderstanding of Effects or Policies on Racial Differences in Criminal Justice Outcomes,” Federalist Society Blog (Oct. 12, 2017), “The Government’s Uncertain Path to Numeracy,” Federalist Society Blog (July 21, 2017), “Racial Impact Statement Laws in New Jersey and Elsewhere,” Federalist Society Blog (Mar. 20, 2017), “Compliance Nightmare Looms for Baltimore Police Department,” Federalist Society Blog (Feb. 8, 2017), “Misunderstanding of Statistics Confounds Analyses of Criminal Justice Issues in Baltimore and Voter ID Issues in Texas and North Carolina,” Federalist Society Blog (Oct. 3, 2016), “Things the President Doesn’t Know About Racial Disparities,” Federalist Society Blog (Aug. 5, 2016), “Things DoJ doesn’t know about racial disparities in Ferguson,” The Hill (Feb. 22, 2016), and “Mired in Numbers,” Legal Times (Oct. 12, 1996). A recent discussion of the broader issues that gives considerable attention to the mistaken belief about the effects of policies on measures or racial disparity in criminal justice in Minneapolis, Minnesota may be found in my September 19, 2020 memorandum to co-panelists on a Department of Housing and Urban Development expert panel on certain discrimination issues (which is also available as one of the attachments to my Response of J. Scanlan to Office of Management and Budget Request for Information “Methods and Leading Practices for Advancing Equity and Support for Underserved Communities Through Government” (FR Doc No: 2021-09109) (July 6, 2021)).
As suggested in a number of the references, and as should be evident in any event, the same misunderstanding exists in the school discipline context, where the mistaken belief that generally reducing adverse discipline outcomes will tend to reduce, rather than increase, (a) relative racial differences in rates of experiencing the outcomes and (b) the proportion Black students make up of students experiencing the outcomes is nearly universal. A recent, fairly comprehensive discussion of the government’s continuing failure to understand this issue may be found in Comments of J. Scanlan to Department of Education Office for Civil Rights Request for Information Regarding the Nondiscriminatory Administration of School Discipline (FR Doc ID RD-2021-OCR-0068-0001) (July 23, 2021). Pages 7-8 discuss recent recognition in two articles by researchers who study school discipline disparities that general reductions in school suspensions tends to increase, rather than reduce, relative racial differences in suspensions. At page 3 of Comments by Y. Anyon et al. to Department of Education Office for Civil Rights Request for Information Regarding the Nondiscriminatory Administration of School Discipline (FR Doc ID RD-2021-OCR-0068-0001) (July 23, 2021), three more researchers who study school discipline disparities show the same recognition.
Subpages to this page include:
- Customs Search Disparities subpage (which discusses how dramatic reductions in searches by Customs Inspectors between 1998 and 2000 were accompanied by an increase in the proportion Blacks made up of persons searched from 14.1% to 27.1%).
- De-escalation Training subpage (which explains how general reductions in the use of force tend to increase relative racial differences in rates of being subjected to the use of force).
- U.S. Sentencing Commission Career Criminal Study subpage (discussing a March 2021 U.S. Sentencing Commission study containing data showing both (a) how general reductions in the number of persons sentenced under the Armed Career Criminal Act between 2010 and 2019 were accompanied by an increase the proportion Blacks made up of persons sentenced under the act and (b) why limiting the prison population to armed career criminals would increase the proportion Blacks made up of the prison population (see discussion below of the California Prison Population subpage of the Discipline Disparities page).
- Implicit Bias Training subpage (discussing impossibility of determining whether implicit bias training reduces bias in policing without understand the effects of changes in the prevalence of an outcome on the measures used to quantify bias).
- Drawing Inferences subpage (discussing how observers draw inference about the role of bias in criminal justice disparities on the basis of the comparative size of certain measures in different settings without understanding how the measures tend to be affected by the prevalence of the outcome in the different settings).
- Implicit Bias Training subpage (discussing that, while reduction in racial bias will tend to reduce all measures of racial disparity, it is impossible to determine whether bias has decreased without understanding how measures are being affected by changes in the prevalence of an outcome).
- Minneapolis Police Dpt Investigations subpage (discussing that investigation of the racial disparities at the hands of officers of the Minneapolis Police Department will be conducted by the Minnesota Department of Human Rights and the Department of Justice while those agencies mistakenly believe that general reductions in arrests would tend to reduce relative racial differences in arrests).
- Offense Type Issues (CJD) (discussing the was that reductions in arrests for particular type of offenses may not increase, and may even reduce, relative racial difference in overall arrests even though the reductions increased the relative racial difference for the particular type of offense).
- Innumerate Decree Monitors (discussing that court-appointed monitors of police consent decrees, being no more numerate than social scientists or criminologists, invariably operate under the mistaken belief that the generally reducing adverse criminal justice outcomes will tend to reduce (a) and (b) for the outcomes).
- Massachusetts Crim. Justice Disparities (discussing expressions of beliefs about large racial/ethnic differences in adverse criminal justice outcomes without consideration of the extent to which the size of relative differences is affected by the prevalence of an outcome and the general failure of Massachusetts to understand that it will tend to have comparatively large relative differences in adverse outcomes, though comparatively small relative differences in the corresponding favorable outcomes because it is an affluent and otherwise advantaged state where adverse outcomes are comparatively uncommon).
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Subpages that currently part of other web pages on this site principally addressing other subjects that illustrate pertinent patterns with respect to criminal justice outcomes include:
- Recidivism Illustration subpage of the Scanlan’s Rule page of jpscanlan.com (using recidivism risk score data to show how relaxing standards for pretrial release or eligibility for diversion to nonjudicial programs, while tending to reduce relative racial differences in pretrial release rates and diversion rates, will tend to increase relative racial differences in denial of pretrial release and denial of diversion).
- California Prison Population subpage of the Discipline Disparities page (referencing data from a 2004 study of the California prison population that shows how the level of convictions increases, the ratio of the Black rate of reaching the level to the white level or reaching the level increases while the ratio of the white rate to the Black rate of failing to reach the level decreases, and thus why increasing number of convictions required to trigger an adverse consequence will tend to increase relative racial differences in rates of experiencing the consequence while reducing relative racial differences in rates of avoiding the consequence). Compare discussion in “Mired in Numbers,” Legal Times (Oct. 12, 1996) of effect of changing California’s three-strikes law to a four-strikes law.
- Ferguson Arrest Disparities subpage of the Discipline Disparities page (discussing problems in the comparison of the size of racial disparities in criminal justice outcomes from place, parts of which address issues in any effort to appraise the size of a disparity in the basis of any measure between the proportion a group makes up of the population and the proportion it makes up of persons experiencing an outcome of nature recently addressed at length at pages 14 to 19 of Response of J. Scanlan to Office of Management and Budget Request for Information “Methods and Leading Practices for Advancing Equity and Support for Underserved Communities Through Government” (FR Doc No: 2021-09109) (July 6, 2021).
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