Suppose the Crime Really Is the Same
Imagine two people arrested for stealing $1,200 worth of merchandise from a Pennsylvania store. Neither threatened anyone or carried a weapon. Their criminal histories are comparable, the evidence is equally strong, and both are charged under the same law in the same county.
One is White. The other is Black. Should one remain in jail awaiting trial while the other goes home? Should one receive probation while the other goes to prison? If the circumstances are genuinely comparable, what would justify treating them differently?
The store suffered a loss. Whoever committed the theft should be held accountable, but accountability does not give government unlimited discretion over what happens next.
The Square New Deal begins with government stewardship: The people entrust power to government, and it must be exercised responsibly and accountably. Few powers deserve greater scrutiny than the authority to take away someone’s freedom.
Black Americans represent a much smaller share of the population than White Americans, yet they experience incarceration at substantially higher rates. How much of that difference reflects criminal offending, and how much develops through government decisions?
The question isn't whether America should punish people who break the law, but whether it applies the same standard when it does.
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The Numbers Are Real. But What Do They Prove?
At midyear 2024, America’s local jails held approximately 659,000 people. According to the Bureau of Justice Statistics, 45% were White and 38% were Black. More White Americans were jailed in total, but the numbers look different when population size is considered.
For every 100,000 White residents, 149 were held in local jails. For every 100,000 Black residents, 566 were held. That is approximately 3.8 times the White rate.
However, 68% of people in local jails had not been convicted of the offense for which they were being held. Some awaited trial; others were held for different legal reasons. A jail population therefore reflects decisions about detention as well as convictions. Jail statistics should not be confused with the population serving sentences in state and federal prisons.
These figures establish a serious disparity. They cannot tell us how much comes from criminal conduct, prior records, policing, or court decisions. To find out, we have to follow an individual case.
You Cannot Explain Punishment Without Examining Crime
There is an uncomfortable fact we cannot avoid: Differences in criminal offending contribute to differences in incarceration. However, treating arrests as a complete record of crime would be misleading.
The Federal Bureau of Investigation reported that White Americans accounted for 65.5% of arrests in 2024 and Black Americans for 30.5%. Those are shares of arrests, not rates per person or counts of unique offenders. Arrests also depend on which offenses are reported, where police investigate, and whether suspects are identified. An arrest is not a conviction.
Federal victimization surveys and other research show racial differences in serious violent offending and victimization. The National Academies of Sciences, Engineering, and Medicine has examined how concentrated poverty, segregation, and exposure to violence intersect with crime and justice. None of this establishes that race itself causes criminal behavior, and violent-crime findings cannot simply be applied to shoplifting.
Enforcement matters too. A 2020 American Civil Liberties Union report found that Black Americans were 3.64 times as likely as White Americans to be arrested for marijuana possession, despite comparable reported rates of use. The data cover 2010–2018, and changing laws limit what they tell us about today. They illustrate why arrests alone cannot establish differences in underlying conduct. We must evaluate our retail-theft defendants on evidence of their own conduct, not on the arrest statistics of an entire population.
Let’s Follow $1,200 Through the Justice System
$1,200 is a real loss to a business, especially one trying to meet payroll and rent. Pennsylvania law also treats that amount seriously: Retail theft involving more than $1,000 is a third-degree felony, even for a first offense. Prison isn't automatic, but the consequences extend far beyond repaying the stolen merchandise. A felony charge can threaten a person’s livelihood before sentencing.
Our defendants face comparable allegations and evidence, but real cases differ. Sentencing can properly reflect prior convictions, the seriousness of the offense, and other legally relevant circumstances. Courts must consider those factors before making racial comparisons.
The Pennsylvania Commission on Sentencing publishes information about offenses, criminal histories, and sentencing outcomes, but those records chiefly describe cases reaching sentencing, not every report, arrest, dismissed charge, or plea negotiation. Focusing only on the final sentence would miss how a defendant got there. We also need to examine the earlier decisions.
The Road to Prison Can Divide Before a Judge Speaks
A prosecutor decides which supported charges to pursue and what plea offers to make. One of our hypothetical defendants could receive an offer to plead to a reduced charge while the other faces the original felony. Even before sentencing, the available consequences could diverge.
Sometimes different decisions are justified. Yet where the relevant circumstances are comparable, unequal treatment needs an explanation.
In a 2014 study published in the Journal of Political Economy, researchers M. Marit Rehavi and Sonja Starr followed federal cases from arrest through sentencing. Black defendants received sentences nearly 10% longer than comparable White defendants arrested for the same crimes, after accounting for available case characteristics. Much of the remaining difference was tied to prosecutors’ initial charging decisions, particularly charges carrying mandatory minimum sentences. Black arrestees had about 1.75 times the adjusted odds of facing such charges, which can require judges to impose at least a specified minimum prison term.
The study did not examine Pennsylvania shoplifting or prove individual prosecutors' motives. It did establish why an examination of punishment cannot begin with the judge’s final decision. A difference in charges can become a difference in time behind bars.
A Person Can Lose Their Freedom Before Being Found Guilty
An arrest is an accusation, not a conviction, yet keeping someone in jail while awaiting trial can change that person’s life long before a judge or jury determines guilt.
Now suppose one defendant goes home while awaiting trial and the other remains in jail. Neither has been convicted, yet one can keep working, pay rent, and help prepare a defense; the other may miss paychecks, lose housing, or struggle to communicate with an attorney.
Courts have legitimate obligations to protect the public and ensure defendants appear for proceedings. Pennsylvania’s bail rules require consideration of individual circumstances, including the charge, criminal history, community ties, and financial resources. The question is whether comparable risks lead to comparable decisions.
In a 2018 study of Philadelphia and Miami bail decisions, researchers David Arnold, Will Dobbie, and Crystal Yang found evidence of racial bias against Black defendants. They used the differing release tendencies of nearly randomly assigned judges to examine pretrial risk. A separate 2018 study found that detention before trial increased the likelihood of conviction, largely through guilty pleas, and reduced subsequent formal employment.
Neither study establishes what would happen to our two retail-theft defendants. Both show why pre-conviction confinement is a serious exercise of government power. For someone living paycheck to paycheck, a missed week of work can mean falling behind on rent or losing a job. The economic price can come before a verdict.
Same Crime. Same History. Same Punishment?
Here is the crucial test. When researchers compare defendants while accounting for factors that should affect sentencing, do racial differences disappear?
In a 2023 study published in Crime & Delinquency, Rory Monaghan and Kaitlyn Konefal examined 717,163 Pennsylvania sentencing cases from 2006–2016. They accounted for several factors, including criminal history, sentencing guidelines, offense categories, age, sex, and judicial district.
Even after those adjustments, Black defendants had approximately 33% higher odds of incarceration than White defendants. Among defendants sent to jail or prison, the study’s principal adjusted comparison found sentences approximately 4.4% longer for Black defendants. Higher odds are not the same as a 33% higher probability. The researchers also found mixed results on the relationship between presentence investigation reports and sentence disparities.
This is Pennsylvania evidence, but it is not a matched study of $1,200 retail thefts. The cases cover multiple offenses and an earlier period. Statistical adjustments cannot account for every unmeasured fact, and the results do not establish discriminatory intent in every case.
However, federal research points in a similar direction. The U.S. Sentencing Commission examined sentences from fiscal years 2017–2021 and found that Black male defendants were 23.4% less likely than comparable White male defendants to receive probation, after adjusting for available characteristics. Among those incarcerated, sentences were, on average, 4.7% longer. The Commission found that much of the overall difference came down to the decision between probation and incarceration, although probation accounted for only 6% of sentences in that federal sample.
Think about that decision outside a courtroom. One person returns home under supervision and keeps working. Another loses months of freedom and income. Those outcomes may both be lawful in different cases, but the government should be able to justify why they differ.
We cannot say our hypothetical defendants would receive different sentences, or calculate exactly what share of America’s total incarceration gap is caused by unequal treatment. We can say that substantial differences remained in large studies after researchers accounted for many relevant circumstances. General crime rates do not erase those findings.
The Square New Deal Test: Can Government Demonstrate Equal Justice?
We began with two people accused of the same theft. The evidence does not tell us how their hypothetical cases would end. It does tell us why a fair criminal justice system must be examined at more than one point: policing, charging, detention, and sentencing can each influence who loses freedom and for how long.
The Square New Deal calls this government stewardship. The authority to punish wrongdoing comes with an obligation to explain how that authority is exercised. The Fourteenth Amendment requires states to provide equal protection and due process. A statistical disparity alone is not proof of a constitutional violation, but government should not wait for a lawsuit before examining patterns it cannot adequately explain.
Lawmakers should require information that lets citizens compare genuinely similar cases, with appropriate privacy safeguards: charges, criminal histories, detention decisions, plea outcomes, and sentences. When differences remain after officials consider relevant factors, they should investigate their causes and correct unjustified practices. Congress oversees federal law and oversight; state legislatures oversee much of the justice system people encounter.
Citizen stewardship also demands consistency. A retailer who loses $1,200 deserves accountability, and communities have a right to safety. Defendants have a right to fair treatment. Protecting victims and respecting constitutional limits are both obligations of the same government.
The Square New Deal does not ask us to excuse crime because of race or poverty. It asks us to insist that punishment rest on conduct, evidence, and lawful circumstances rather than assumptions about a person’s identity.
A crime does not become less serious because the person who committed it is White, or more serious because the person is Black. When government takes a citizen’s freedom, it should be prepared to explain why. A government should not merely tell its citizens that justice is fair. It should be able to show them.
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Sources
American Civil Liberties Union. A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform. April 16, 2020.
Arnold, David, Will Dobbie, and Crystal S. Yang. “Racial Bias in Bail Decisions.” The Quarterly Journal of Economics 133, no. 4 (2018): 1885–1932.
Dobbie, Will, Jacob Goldin, and Crystal S. Yang. “The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges.” American Economic Review 108, no. 2 (2018): 201–240.
Federal Bureau of Investigation. Reported Crimes in the Nation, 2024: Quick Stats. Washington, DC: U.S. Department of Justice, 2025.
Monaghan, Rory, and Kaitlyn Konefal. “Presentence Investigation Reports and Racial/Ethnic Disparities in Sentencing.” Crime & Delinquency 69, no. 12 (2023): 2460–2483.
National Academies of Sciences, Engineering, and Medicine. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: National Academies Press, 2023.
National Archives. “14th Amendment to the U.S. Constitution: Civil Rights (1868).” National Archives and Records Administration.
Pennsylvania Commission on Sentencing. “Data Dashboards (2015–2024).” Pennsylvania State University.
Pennsylvania General Assembly. “Retail Theft, 18 Pa.C.S. § 3929.” Pennsylvania Consolidated Statutes, Title 18.
Pennsylvania Rules of Criminal Procedure. “Rule 523: Release Criteria.” Pennsylvania Code, Title 234.
Rehavi, M. Marit, and Sonja B. Starr. “Racial Disparity in Federal Criminal Sentences.” Journal of Political Economy 122, no. 6 (2014): 1320–1354.
Tapp, Susannah N., and Emilie J. Coen. Criminal Victimization, 2024. Washington, DC: Bureau of Justice Statistics, September 2025.
United States Sentencing Commission. 2023 Demographic Differences in Federal Sentencing. Washington, DC: United States Sentencing Commission, November 2023.
Zeng, Zhen. Jail Inmates in 2024: Statistical Tables. Washington, DC: Bureau of Justice Statistics, September 2026.