The Ben & Jerry's website says:

America locks people up at a higher rate than any other country, and bias is baked right in. If you’re a person of color or struggling to make ends meet, you’re more likely to be sent to prison than a white person convicted of the same crime.

Is this accurate? What does the data say?

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    I removed the proposed excuse "people of color are more likely to commit those crimes" because it doesn't match the claim which is about people who are convicted.
    – Oddthinking
    Apr 9, 2019 at 6:11
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    @oddthinking The other part of the equation is almost as important but much harder to check: are POC charged more often when caught compared to white people committing the same crimes -- IE, possession of weed, shoplifting, urinating in public while drunk, stuff where it's entirely up to the arresting officer whether to book them or let them off with a warning...
    – Shadur
    Apr 9, 2019 at 7:17
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    Questions like this feel difficult to address without getting really technical. Beyond experimental issues like difficulties in collecting reliable data, which result in more complicated analyses, "correcting for confounders" is a pretty sketchy trick that doesn't really work as well as folks tend to assume it must. I'm not really sure how SE.Skeptics in general might handle questions about low-order effects like this, as observations of their existence/nonsexistence are likely more closely related to computational noise than real-world effects.
    – Nat
    Apr 9, 2019 at 11:19
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    @Shadur: Yes, but that isn't the claim being made. The claim being made is far more specific, and avoids accusations that one subgroup is more likely to commit a crime than another.
    – Oddthinking
    Apr 9, 2019 at 13:33
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    I don't consider these sorts of claims on an ice-cream-maker's website to be sufficiently-notable, but that's just me.
    – Roger
    Apr 9, 2019 at 14:36

2 Answers 2


And the absolute difference noted in the USSC report (quoted by liftarn's answer) still has unexplained gaps even after correcting for some possible confounders:

Using rich data linking federal cases from arrest through to sentencing, we find that initial case and defendant characteristics, including arrest offense and criminal history, can explain most of the large raw racial disparity in federal sentences, but significant gaps remain. Across the distribution, blacks receive sentences that are almost 10 percent longer than those of comparable whites arrested for the same crimes. Most of this disparity can be explained by prosecutors’ initial charging decisions, particularly the filing of charges carrying mandatory minimum sentences. Ceteris paribus, the odds of black arrestees facing such a charge are 1.75 times higher than those of white arrestees.

Note that "same crime conviction" can be a dicey issue:

In federal courts, the average sentence during 2008 and 2009 was 55 months for whites and 90 months for blacks (US Sentencing Commission 2010). The extent to which these disparities reflect differences in criminal conduct as opposed to differential treatment is a long-standing question in law and economics. That is, do otherwise similar black and white arrestees caught engaging in the same criminal conduct receive different prison sentences?

A key empirical challenge in answering this question is the lack of data on true criminal conduct. Of necessity, previous estimates of racial disparity in prison sentences proxy for criminal conduct with a measure of the severity of the crime of conviction: often the “presumptive sentence,” which is the recommended sentence under the applicable sentencing guidelines and takes account of aggravating and mitigating “sentencing facts.” However, neither the crime of conviction nor the presumptive sentence is an exogenous measure of criminal conduct. Each is the product of highly discretionary and negotiated processes, including charging, plea bargaining, and sentencing fact-finding. These processes are carried out in expectation of their sentencing consequences and potentially involve racial disparities of their own. [...]

We identify an important procedural mechanism that appears to give rise to the majority of the otherwise-unexplained disparity in sentences: how prosecutors initially choose to handle the case, in particular, the decision to bring charges carrying “mandatory minimum” sentences. The racial disparities in this decision are stark: ceteris paribus, black men have 1.75 times the odds of facing such charges, which is equivalent to a 5 percentage point [absolute] (or 65 percent [relative]) increase in the probability for the average defendant. The initial mandatory minimum charging decision alone is capable of explaining more than half of the black-white sentence disparities not otherwise explained by precharge characteristics.

So yes, you're more likely to be charged with an offense carrying a longer sentence if you are black, even after controlling for some confounders.

As for "more likely to be sent to prison than a white person convicted of the same crime", that's not exactly the same issue as I and the answer has been discussing. Here's the relevant decision tree (at federal level):

enter image description here

The 2nd sentence of your quote is asking if conviction leads to incarceration more often for whites than blacks (for the "same" crime), which is a decision in last non-leaf level of that tree. But the other, prior decision levels (arrests, charges) have been studied, and they are indicative of racial bias. Also, bias in the length of sentencing isn't the same as the probability of being sentenced at all (or not being) across groups. But I would be really surprised if these things are not correlated in practice.

A fairly dated and geographically limited study on the influence of Pennsylvania judge's race on sentencing does answer this odds-of-sentencing-by-defendants-race issue in its regression data (although it's not mentioned in the abstract, as it wasn't the study's main goal.) In that study, the black defendants were 1.25 times more likely to get a prison sentence, even after controlling for all the rest of the variable you can see there (type of offense etc.), including the sentencing judge's race (although black judges also gave harsher sentences overall).

enter image description here

Also there are even some reviews in the area of imprisonment probability:

Written nearly two decades later, Spohn (2000) also reviews 40 recent studies on the role of race in sentencing, but splits outcomes into incarceration and sentence length. In her survey of the literature, a majority of studies find that race impacts the incarceration decision, but fewer than one-quarter report evidence that race affects sentence length. [...]

A more recent paper by Mustard (2001) improves on previous work by including additional controls in the regression analysis. Using federal data provided by the USSC, he examines the impact of race on the incarceration and sentencing decisions, as well as on departures from the sentencing guidelines. His cross-sectional regressions include controls for income, as well as interaction terms between race and income, race and education, and race and criminal history. He finds that African-Americans are more likely to be incarcerated and receive longer sentences, although some of this appears to be due to more extensive criminal histories and more severe offenses.

But none seem to really to pin down the "same crime" issue as well as the more recent research on prosecutions.

  • What is a petty conviction and isn't that contradictory with being incarcerated?
    – gerrit
    Apr 9, 2019 at 11:27
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    @gerrit: "Under federal law, a petty offense is any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months, a fine of not more than $5,000, or both. Since a petty offense is one that is punishable by no more than a six-month sentence, the accused is not constitutionally entitled to a jury trial, which would be in order if the accused were charged with a serious offense." legal-dictionary.thefreedictionary.com/Petty+Offense
    – Fizz
    Apr 9, 2019 at 13:02
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    An important confounder in all of this is wealth. Whites are on average much more wealthy than blacks, and especially in the USA you get the justice you pay for. If you have money you can pay for an attorney who will organise witnesses, investigate prosecution evidence etc. If you don't then you get a public defender who automatically advises you to take the plea bargain. Hence the prosecution is more likely to offer a lenient bargain if they see a wealthy defendant than a poor one. Apr 10, 2019 at 9:32
  • "Female offender .660" "Black offender 1.258" Am I reading this right? Is being male worse than being black, as far as these probabilities go?
    – Michael W.
    Apr 10, 2019 at 15:25
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    Yes, the general trend has always been lower/lighter sentences for women.
    – Marbrand
    Apr 12, 2019 at 5:45

There have been several reports made on the subject of different punishments for the same crime based on skin colour:

  1. source:

    The United States Sentencing Commission reported last week that black male offenders received sentences on average 19.1 percent longer than similarly situated white male offenders.

  2. source:

    Blacks were significantly more likely to have sales and possession charges

  3. source:

    people from minority ethnic groups tend to be arrested at higher rates than whites.

  • Only the first is about actual convictions, though (albeit if you are more likely to be arrested or charged that would be an inequality too; but not what the question is actually about).
    – tripleee
    Apr 11, 2019 at 4:48
  • the claim is not just about skin color, it's about economic backgrounds too, which I don't see addressed here.
    – dandavis
    Apr 11, 2019 at 21:45

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