Professors’ New Work Looks at Economic Disparity in Criminal Justice

John Monahan and Darryl Brown

Professors John Monahan and Darryl Brown are among the distinguished UVA Law faculty studying the effects of economic disparity in criminal law.

April 8, 2019

Two new papers by University of Virginia School of Law professors look at how indigent defendants face more obstacles than others in the justice system, and possible solutions to the problem.

Professor John Monahan and his colleagues have found that risk assessment tools may influence judges to grant probation to poor defendants less often than to more affluent ones.

Their paper, titled “Impact of Risk Assessment on Judges’ Fairness in Sentencing Relatively Poor Defendants,” is available on SSRN.

While other researchers have looked at the new algorithmic tools court systems use and their possible downside, Monahan’s team surveyed 340 actual judges. The cases the judges were presented were not real, however. The written scenarios about a crime varied in only two ways: the defendant was either poor or affluent, and risk information was either provided or not provided. The judges were asked to make a decision about sentencing the defendant to incarceration or to probation.

The research team, which included Jennifer L. Skeem of the University of California, Berkeley, and Nicholas Scurich of the University of California, Irvine, found that adding risk assessment information hurt poorer defendants, increasing the likelihood of their incarceration compared to more affluent defenders. The authors controlled for such factors as race, gender, political orientation and jurisdiction among the judges.

The paper suggests that any sympathy a poorer defendant might receive from a judge for having come from an impoverished past could be reversed by a focus on future risk.

Monahan, a noted psychologist who teaches and writes about risk assessment, is the John S. Shannon Distinguished Professor of Law.

Professor Darryl Brown ’90, meanwhile, argues that paying a fee for a trial could work to the advantage of poorer defendants in “The Case for a Trial Fee: What Money Can Buy in Criminal Process,” forthcoming in the California Law Review.

Brown points out the many ways that relatively affluent defendants can “buy” advantages in the criminal process — through better legal representation, paying a fine in some cases instead of going to jail and being able to put up bail prior to trial, to name a few — whereas poorer defendants find themselves with fewer options.

He argues that adding another, optional court fee for defendants, ironically, may be the solution.

Through plea bargain agreements, defendants can reduce the costs of legal representation and the severity of a possible sentence by admitting guilt to fewer or lesser charges. Prosecutors often extend the agreements with the justification that it saves the state both the time and cost of a trial. But if that motivation is sincere, Brown says, then the state shouldn’t care if a trial does or does not happen, as long as another party foots the bill. That’s where his idea comes in.

Brown says that a defendant should have the option, once a plea bargain is offered, to pay a trial fee and go to court on the newly limited charges only — with the stipulation that the fee will be refunded if the defendant is acquitted.

Such a change, he acknowledges, would raise a number of concerns and questions, some of which he attempts to address.

Brown, a former assistant public defender, is the author of “Free Market Criminal Justice.” He is the O. M. Vicars Professor of Law and the Barron F. Black Research Professor of Law.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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