Race, Ethnicity, and Sentencing
- Jeffrey UlmerJeffrey UlmerDepartment of Sociology and Criminology, The Pennsylvania State University
Much has been written about mass incarceration and how it has fallen especially hard on people of color. Given their representation in the U.S. population, for example, black and Hispanic males are far more likely than their white counterparts to be sent to jail or prison. Such disproportionality may be due to the greater involvement of blacks and Hispanics in serious street crime, especially violent crime, which would result in differential incarceration. It also could be due to discretionary decisions by criminal justice officials during arrest, charging, conviction—and, key to the focus of this article, sentencing—which might produce disparity, to the disadvantage of black and Hispanic men. Various theories seek to explain racial and ethnic sentencing disparity by focusing on characteristics of individuals and criminal cases, features of court organization and decision-making, and social contexts surrounding courts.
Literally hundreds of studies in the past 40 years and beyond have focused on sentencing decisions in local courts and unwarranted racial/ethnic punishment disparity, defined as racial/ethnic differences that persist after accounting for legally prescribed and perhaps case-processing influences. Some reviews of this large and mature body of literature have shown that young, black, and (to a lesser extent) Hispanic male defendants tend to receive more severe sentences than other defendants. In addition, reviews have noted how the sentencing role of race/ethnicity is often conditional on gender and other factors, and that racial/ethnic disparity in sentencing varies in connection with characteristics of courts and their surrounding social contexts. Future research on race, ethnicity, and sentencing should address disparity in relation to earlier (e.g., charging and conviction) and later (e.g., parole, probation, or parole revocation) stages of criminal justice decisions, as well as how the social characteristics of judges, prosecutors, and defense attorneys affect disparity. Research studies should continue to examine how specific punishment policies (e.g., mandatory minimums, risk assessments, and sentencing guideline provisions and departures) may be the sources of racial and ethnic disparity.
Much has been written about mass incarceration and how it has fallen especially hard on people of color. Given their representation in the U.S. population, for example, black and Hispanic males are far more likely than their white counterparts to be sent to jail or prison. As of 2011, black males represented 36% and Hispanic males 21% of all state and federal prisoners (Muller, 2012). These figures far exceed the black and Hispanic male proportions of the U.S. population. By 2011, there were 2,023 black men and 1,238 Hispanic men imprisoned per 100,000, compared to only 478 white men. This disproportionality has been the subject of much criticism and is increasingly recognized as a key source of social disadvantage for minority men and the families, social networks, and communities in which they are embedded. Indeed, such disproportional punishment of racial and ethnic minorities has deep roots in American history (Muller, 2012).
Two potential, and not mutually exclusive, explanations exist for racial and ethnic incarceration disproportionality affecting black and Hispanic men (Baumer, 2013; Frase, 2013). First, such disproportionality may be due to the greater involvement of blacks and Hispanics in serious street crime, especially violent crime, which would result in differential incarceration. Second, discretionary decisions by criminal justice officials during arrest, charging, conviction—and, key to the focus of this discussion, sentencing—might systematically produce disparity (which may or may not involve actual racial or ethnic discrimination), to the disadvantage of black and Hispanic men.
This article examines research on racial and ethnic disparities surrounding the sentencing stage of the criminal justice system (however, it does not review research on disparities in capital punishment—for a discussion of that topic, see Paternoster, 2012). Sentencing disparity refers to the situation in which legally similar offenders commit the same or very similar crimes but receive substantially different sentences. Most observers distinguish between warranted disparity and unwarranted disparity. Warranted disparity would be attributable to differences that are considered defensible from a legal standpoint. For example, sentencing disparities between offenders and offenses that seem similar on the surface sometimes may be attributable to legally defensible factors, such as special characteristics of crimes or aggravating or mitigating features of the offenders’ prior criminal records. Much more commonly, the focus is on unwarranted disparity–sentencing differences between comparable, similar offenses and offenders that are not attributable to legally prescribed factors. It is important to note, however, that there is no objective standard for deciding what constitutes warranted or unwarranted disparity. Rather, these are value judgments that are open to interpretation.
Literally hundreds of studies in the past 40 years and beyond have focused on sentencing decisions in local courts and unwarranted racial/ethnic punishment disparities. Notable reviews of this large and mature body of literature have shown that young, black, and (to a lesser extent) Hispanic male defendants often receive more severe sentences on average than other types of defendants (Hagan & Bumiller, 1983; Spohn, 2000; Mitchell, 2005; Ulmer, 2012; Spohn, 2015). In addition, studies have noted how the sentencing role of race/ethnicity is often conditional on gender and other factors and that racial/ethnic disparity in sentencing is local context–dependent (Spohn, 2000; Mitchell, 2005; Ulmer, 2012; Kramer & Ulmer, 2009). Also, recent research has demonstrated substantial variations between courts and their social contexts in the effects of race and ethnicity on sentencing (Ulmer, 2012).
Theoretical Perspectives on Sentencing Disparity
The 1990s and 2000s saw the development of several theoretical frameworks aimed at explaining racial and ethnic disparity. These frameworks have drawn from broader theories such as conflict and group threat theory in sociology, organizational sociology, social psychology, and political science. These frameworks described in the next sections present a number of largely complementary theoretical concepts and propositions (readers seeking full treatments of these topics should consult the original works cited within).
Theories Focusing on Characteristics of Individuals and Criminal Cases
Celesta Albonetti articulated uncertainty avoidance (1986, 1987) and causal attribution (1991) perspectives on sentencing and court decision-making. Albonetti (1987, 1991) applied insights from organizational theory to argue that sentencing suffers from operating in a context of bounded rationality, in that court actors make highly consequential decisions with insufficient information, which produces uncertainty. Albonetti (1991) particularly stressed uncertainty and insufficient information regarding the recidivism risk and rehabilitative potential of offenders. She drew from attribution theory in social psychology to argue that, as a means of reducing uncertainty, decision-makers fall back on attributions about reoffending risk, rehabilitation potential, or both that can be linked to race, ethnicity, gender, and other social status stereotypes. This then can result in extralegal sentencing disparity connected to these statuses.
A similar idea comes from the interpretive theory of legal decision-making by Farrell and Holmes (1991), which emphasizes the situational role of stereotypes linked to defendant social status in case processing. Farrell and Holmes (1991) keyed off insights from labeling theory and Sudnow’s (1965) classic formulation of “normal crimes” to generate 10 propositions about the conditional, situation-specific role of status-linked stereotypes for routine and nonroutine cases and defendants. In other words, the interpretive theory of legal decision-making describes how racial and ethnic stereotypes can condition disparities under some conditions and not others. A related idea is the liberation hypothesis, which has sometimes been applied to sentencing discretion (Kalven & Zeisel, 1966; Spohn & Cederblom, 1991). This hypothesis implies that as the seriousness or visibility of the offense or case increases, sanctioning discretion is tightened and legally relevant variables become decisive, leaving little room for extralegal influences. By contrast, in less serious and visible cases, opportunities for discretion are greater and extralegal variables such as race/ethnicity can influence outcomes more than in serious cases.
Probably the most widely used theoretical framework for understanding disparities today is the focal concerns perspective. A recent statement of this perspective in proposition form can be found in Kramer and Ulmer (2009), and it was first fully named and articulated by Steffensmeier, Ulmer, and Kramer (1998). The focal concerns perspective argues that court actors’ subjective definitions of offenders and offenses related to three focal concerns of punishment—blameworthiness, protection of the community, and practical constraints—determine punishment decisions. The focal concerns perspective argues that both legal and extralegal considerations affect the interpretation and prioritization of focal concerns. It agrees with Albonetti’s work and that of Farrell and Holmes (1991), in emphasizing the role of status-linked attributions and stereotypes. Whereas Albonetti (1991) focused on attributions about offenders’ potential recidivism/rehabilitation and Farrell and Holmes (1991) focused mostly on modes of conviction and did not specify particular punishment concerns, the focal concerns perspective specifies that status-linked attributions and stereotypes potentially shape court decision-makers’ assessments of defendants’ blameworthiness, dangerousness/rehabilitative potential, and/or practical contingencies and constraints, although they likely do so secondarily to legally relevant factors (Kramer & Ulmer, 2009). The focal concerns perspective is congruent with Farrell and Holmes (1991) in arguing that the influence of defendant social status–linked stereotypes is situationally conditional—that is, factors like race and ethnicity are likely to influence sentencing under some circumstances and not others. The influence of race in sentencing, for example, may be conditional on a defendant’s gender, age, social class, offense type and characteristics, criminal history, mode of conviction, and especially local contexts. These local contexts are the subject of other theories, discussed next.
Perspectives on Courts and Their Contexts
It has long been recognized that sentencing practices varies between jurisdictions (Myers & Talarico, 1987; Eisenstein, Flemming, & Nardulli, 1988; Flemming, Nardulli, & Eisenstein, 1992; Ulmer, 1997). The court community perspective views courts as communities or social worlds based on participants’ shared workplace, interdependent working relations between key sponsoring agencies such as the prosecutor’s office, judge’s bench, and defense bar, and the court’s relation to its larger sociopolitical environment (Eisenstein et al., 1988; Flemming et al., 1992; Ulmer, 1997). These court communities develop distinctive social orders that produce distinctive local organizational cultures. These local social arrangements and the cultures that they encompass shape formal and informal case processing and sentencing norms (Eisenstein et al., 1988; Ulmer & Kramer, 1996; Ulmer, 1997). This perspective often has been combined with the focal concerns perspective to argue that the use of and reliance on focal concerns tend to characterize courts generally, but the meaning, relative emphasis and priority, and situational interpretation of them are embedded in local court community legal and organizational culture (Ulmer & Johnson, 2004). The ultimately subjective and interpretive nature of the assessment of focal concerns makes it likely that stereotypes and biases based on race/ethnicity or other extralegal defendant characteristics can influence the sentencing process, in social contexts where such stereotypes and biases are common (Kramer & Ulmer, 2009, see Figure 1, p. 10).
Interest in social contexts that foster negative racial/ethnic based stereotypes and perceptions of threat also has been the focus of group threat theory. In the context of sentencing, group threat theory implies that when perceptions of racial or ethnic group threat are more pronounced and when criminal justice decision-makers perceive particular racial/ethnic groups as more dangerous or morally disrespectable, such minorities may receive harsher sentences. According to this view, as the relative sizes of minority racial populations increase, whites may feel threatened and feel that their positions of power and privilege are jeopardized (Blumer, 1958). Blalock (1967) argues that as minority racial groups grow in size relative to whites, they are likely to develop increased power, economic resources, and political influence in the community and are better able to compete with whites for power. Thus, whites may feel the need to protect their privileged positions of power and suppress the growing strength of minority racial or ethnic groups via the criminal justice system, punishing minorities more harshly. As minority groups become large enough to gain political power or social influence, they may become able to ward off such repression at the hands of the criminal justice system.
Reviews During the 2000s
Spohn (2000) summed up research on sentencing, primarily focusing on studies of disparity based on race, ethnicity, and gender. This report also highlighted research that went beyond simply assessing whether “race/ethnicity mattered” or “gender mattered,” investigating when and how such social statuses matter in sentencing—that is, investigating how the influence of race, ethnicity, and gender mutually conditioned one another and were conditioned by other factors. In particular, Spohn (2000) provided a quantitative summary of racial/ethnic disparity studies, with an emphasis on conditional influences.
Regarding the in/out decision, Spohn (2000) found that 55% of 45 effects in 31 state court studies that she reviewed, as well as 3 of 7 effects in 8 federal court studies, showed significant black disadvantages. A total of 5 of 12 effects in the state court studies showed in/out disadvantages for Hispanic defendants, and 3 of 7 effects in the federal studies showed Hispanic in/out disadvantages. In the state court studies, 23% of 39 sentence-length effects showed significant black disadvantages, and 1 of 14 effects showed length disadvantages for Hispanics. In 8 federal studies, 6 of 9 effects showed black sentence-length disadvantages, and 2 of 8 length effects showed disadvantages for Hispanics.
More important, Spohn (2000, p. 462) found that 11 studies had looked at whether race and/or ethnic effects were conditioned by other social statuses or characteristics, especially gender or age. All 11 found evidence of such effects. In particular, 4 studies found sentencing disadvantages for young black and/or Hispanic males, 4 found sentencing disadvantages for unemployed young black or Hispanic males, 1 found disadvantages for low-income minorities, and 1 found disadvantages for low-education minorities.
In addition, several studies in the 1990s showed that race or ethnicity effects on sentencing were conditional on criminal history, offense type or severity, case processing factors, or victim characteristics. A total of 8 of these studies found that blacks or Hispanics with more serious criminal histories were sentenced more severely. In addition, 10 found that race/ethnic differences were conditioned by the type or severity of crimes, 3 found that racial disadvantages were greatest in less serious crimes, and 6 found that racial disadvantages were pronounced in drug offenses. In addition, 6 studies found that race/ethnicity effects were conditioned by case processing factors—2 of them found that blacks were sentenced more severely if they were detained prior to trial, 1 found that blacks were sentenced more severely if represented by a public defender rather than a private attorney, and 3 found that blacks were sentenced more severely if they were convicted by plea rather than trial. Finally, 1 study found that blacks who victimized whites received more severe sentences that other victim-offender race combinations (Spohn & Spears, 1996).
More recent reviews of the race, ethnicity, and sentencing literature have been provided by Mitchell (2005), Ulmer (2012), and Spohn (2015). Since 2000, many (but not all) studies focusing on the decision to incarcerate (jail or prison) have found that blacks, and sometimes Hispanics, are more likely than whites to receive prison or jail sentences. Fewer studies find statistically significant race/ethnic differences in sentence length than find effects for incarceration.
In a meta-analysis synthesizing 71 published and unpublished studies, Mitchell (2005) found significant racial disparities in the likelihood of incarceration; African-American defendants were more likely than white defendants to be sent to prison. Regarding the length of sentences, African Americans were generally sentenced more harshly than white defendants. However, sentence-length effects were generally small and varied a great deal.
What Have We Learned in the Past 15-Odd Years?
The 2000s have seen a very large number of published sentencing studies, too many to review fully here (for a more detailed examination, see the review by Ulmer, 2012). This article briefly reviews research that covers the following specific dimensions of racial and ethnic disparity: (a) racial and ethnic disparity conditional on other factors such as gender and age; (b) social (especially racial and ethnic) contexts and sentencing; (c) the role of individual judge and prosecutor characteristics in conditioning disparity; (d) racial and ethnic disparity conditional on victim characteristics; and (e) sentencing in the context of earlier case-processing decisions.
In addition, a key theme of the summaries of the 1990s literature in Spohn (2000) and Zatz (2000) was that the influence of social status factors such as race and ethnicity was conditional on other factors. Dozens of studies in the 2000s have continued to confirm this insight, especially that black and Hispanic punishment disparities are conditioned by gender and age. Space considerations prevent a full review of them in detail here, though many of these studies are also noted in the discussions of research on court contexts, courtroom actors, victim characteristics, and earlier case-processing decisions. Also, the effects of defendant social status may interact with case processing, offense characteristics, and criminal history (as discussed later in this article).
Many studies that examine the issue find young black and (to a lesser extent) Hispanic male defendants are sentenced more severely (just a few examples are Steffensmeier & Demuth, 2000, 2001, 2006; Spohn & Holleran, 2000; Kautt & Spohn, 2002; Demuth & Steffensmeier, 2004; Kramer & Ulmer, 2009; Steen, Engen, & Gainey, 2005; Ulmer et al., 2007; Doerner & Demuth, 2009; Curry & Corral-Camacho, 2008). Other researchers have found that minority males are sentenced more severely based on sentencing policy options such as mandatory minimums (Kautt & DeLone, 2006; Kautt & Spohn, 2002), and more research along these lines is needed to illuminate how sentencing policies might create or dampen disparities.
Interestingly, some studies find minority women to be sentenced as leniently, or even more leniently, than white females (e.g., Steffensmeier & Demuth, 2006; Kramer & Ulmer, 2009), and discuss the implications of this finding for how black females, as compared to black males, tend to be perceived in terms of focal concerns of sentencing and other considerations. In fact, some studies even argue that sentencing disparity disadvantaging blacks and Hispanics characterizes the sentencing of only men, not women, although others disagree.
King and Johnson (2016) investigated a novel dimension of conditional race and ethnic effects on punishment. They examined and coded 850 booking photos of black and white males charged in two Minnesota metropolitan counties and matched these to sentencing data. They found the degree of racial disparity in sentencing depended on skin tone and Afrocentric features: darker skin and more Afrocentric features resulted in harsher sentences among black and even white defendants. Another social characteristic that recently has been shown to condition ethnic disparity in punishment is citizenship. The novel approach to ethnic disparities in U.S. federal court sentencing taken by Light, Massoglia, and King (2014) asked whether Hispanic-white disparities were confounded with U.S. citizenship status. They found that the “Hispanic effect” in prior federal sentencing studies is largely a citizenship effect. That is, accounting for citizenship and immigration status strongly reduced Hispanic-white differences in punishment, while noncitizens, especially those who were undocumented immigrants, received harsher sentences than Hispanic U.S. citizens, blacks, or whites. Light et al. (2014) also showed that these citizenship effects also increased over time from 1990–2010.
Social Contexts and Sentencing
The 2000s saw a flurry of research on how the influence of race and ethnicity in sentencing may be conditioned by court or social context factors. Studies during this period typically find that most sentencing outcome variation exists at the individual level and is most strongly predicted by individual-level factors. However, the recent literature on contextual variation in sentencing shows that variation between courts permeates many aspects of sentencing, both under sentencing guideline jurisdictions and nonguideline jurisdictions. Not only does sentencing severity (and related outcomes such as sentencing guideline departures) vary between local courts and their contexts, but the effects of race and ethnicity do as well. In fact, substantial evidence exists that the extent of racial and ethnic disparity in a variety of sentencing outcomes in large part depends on where one is sentenced.
Racial/Ethnic Population Composition
Much of this contextual research has investigated the role of local racial/ethnic population composition in conditioning racial and ethnic sentencing disparity, drawing from both racial group threat theory and the focal concerns perspective. Many published multilevel sentencing studies find that the effects of race and ethnicity in sentencing decisions indeed vary significantly across courts. However, results have been decidedly mixed regarding the ability of racial threat theory to explain this variation. That is, race/ethnic effects on sentencing tend to vary across contexts, but not always in ways predicted by racial threat theory.
Some studies have found that the percentage of blacks in local populations has been found to increase racial/ethnic disparities in imprisonment and sentence lengths (e.g., Ulmer & Johnson, 2004; Kramer & Ulmer, 2009; Weidner, Frase, & Schultz, 2005), and in receiving upward and downward departures from sentencing guidelines (Johnson, 2005; Johnson, Ulmer, & Kramer, 2008). Other research shows that judges are less likely to withhold adjudication for black defendants as the black presence in the community and their levels of economic disadvantage increase (Bontrager, Bales, & Chiricos, 2005). Ulmer and Johnson (2004) found that county-level black and Hispanic populations were positively related to racial disparities in state court sentence lengths, but not incarceration chances.
Other studies reveal either no support for racial threat (Weidner & Frase, 2003; Weidner, Frase, & Pardoe, 2004; Kautt, 2002) or evidence contrary to racial threat hypotheses (Britt, 2000). Feldmeyer and Ulmer (2011) found that, although race effects varied significantly between federal courts, federal districts’ percent black was unrelated to black/white disparities. Percent Hispanic strongly conditioned Hispanic/white disparities, but not in a manner predicted by racial threat theory. Hispanic/white disparity was greatest in districts where Hispanics were least numerous, but there was no significant Hispanic/white disparity in districts where Hispanics were most numerous (Feldmeyer & Ulmer, 2011). Yet another pattern was found by Wang and Mears (2010) using State Court Processing System (SCPS) data. They found curvilinear effects of percent black on black sentencing disadvantages that are consistent with racial threat, but did not find such a pattern for Hispanic sentencing.
More recently, Feldmeyer, Warren, Siennick, and Neptune (2015) examined black and Latino sentencing among Florida county courts from 2000–2006 in connection with county racial, ethnic, and immigrant composition. They found that black defendants were sentenced more severely in counties that had experienced greater black population growth, but they saw no such effect for Hispanic defendants in counties that had experienced growth in Hispanic immigrant populations. In a recent study of California’s three strikes mandatory minimum sentence program, Chen (2014) found that Latino defendants were more likely to receive three-strikes sentences in counties with larger Latino populations (as predicted by threat theory), but the size of local black populations did not affect the likelihood of black defendants receiving such sentences (which was higher state-wide than whites). However, the study by Light et al. (2014) noted earlier showed that Hispanic noncitizens (especially the undocumented) received more severe sentences than others, including Hispanic U.S. citizens. They also showed that this Hispanic noncitizen effect was most pronounced in federal districts with growing immigrant populations. Thus, they found that not only was Hispanic–white disparity conditional on citizenship status, Hispanic noncitizens received harsher sentences in districts with growing immigrant populations.
Court Community Racial/Ethnic Composition
Researchers are just beginning to scratch the surface of studying the effects of court community composition on sentencing. Farrell, Ward, and Rousseau (2009) researched the effects of the racial composition of federal district court community sponsoring organizations (i.e., bench, U.S. Attorney’s Office, probation office, defense bar) on variations in the effects of race on sentencing. They found that black representation in district U.S. Attorney’s Offices was associated with significantly smaller race differences in the odds of incarceration (the more black U.S. Attorney personnel, the less disparity there was), and interestingly, greater black federal probation officer representation was associated with greater black/white sentencing outcome disparity. In addition, King, Johnson, and McGeever (2010) found that greater black representation among county attorneys attenuated local black/white sentencing disparity. This research direction coincides nicely with recent research on the effects of individual court community actors and their characteristics, described next.
Judge and Prosecutor Characteristics and Racial and Ethnic Disparity
Another research direction where novel progress was made in the past 15 years has been the investigation of variations between court community actors and the effects that the characteristics of those actors might have on sentencing patterns. Earlier research had investigated the effects of the race and gender of judges on sentencing (e.g., Welch, Combs, & Gruhl, 1988; Spohn, 1990; Steffensmeier & Hebert, 1999), and this topic also was reviewed in Spohn (2000). More recent studies have analyzed between-judge variations in a multilevel context, and at least one study (Spohn & Fornango, 2009) examined between-prosecutor variations. Furthermore, Kim, Spohn, and Hedberg (2015) investigated independent and joint effects of prosecutors and judges in federal sentencing and found considerable variation in the extent of disparity between judge and prosecutor dyads, and that discretionary decisions by prosecutors led to greater disparity than judicial decisions.
Johnson (2006) examined court contextual and interjudge variation in sentences in Pennsylvania. He found that black and Hispanic judges sentenced all offenders, and particularly minority offenders, more leniently than white judges. Wooldredge (2010) also examined interjudge variation in sentencing among 18 judges in Ohio and found wide variations between judges in the effects of race, gender, and financial means on their sentences. For example, half of the judges’ sentences showed no significant extralegal effects at all, while five judges actually sentenced young black males more leniently, and four sentenced them more harshly.
In sum, suggestive evidence has grown during in the past fifteen years and more to suggest that courtroom actors matter and that sentencing patterns, including disparity, are conditional on those actors and their characteristics. Recently, Lieber, Peck, and Beaudry-Cyr (2016) examined the effect of juvenile court officer gender on black and white youth punishment outcomes and found that women juvenile court officers punished white youth more leniently, while male officers punished black juveniles more severely.
Racial/Ethnic Disparity and Victim Characteristics
It should be noted that existing studies that utilize data from sentencing guideline jurisdictions such as Pennsylvania, Washington, Minnesota, and the federal system actually implicitly consider victim harm, financial loss, and often victim age and vulnerability. These factors are commonly included in creating guideline offense severity rankings. Thus, the strong effects of offense severity typically found in such studies partially incorporate victim impact and vulnerability. Such research, however, does not tell us about the effects of other specific victim attributes.
Curry (2010) and Curry, Lee, and Rodriguez (2004) studied random samples of offenders convicted of violent crimes (homicide, assault/sexual assault, and robbery) in the seven largest counties in Texas in 1991. Curry et al. (2004) found that offenders who victimized females received longer sentences (by about 4 months), and females who victimized males received sentences about 10 months shorter than males who victimized females. Curry (2010), using similar data, extended the analysis to examine race/gender combinations of victims and offenders and found that violent offenders who victimized white and Hispanic females (but not black females) received 16% and 30% longer sentences than other combinations, respectively, and Hispanic and black homicide offenders who victimized whites got 44% and 45% longer sentences than other combinations, respectively. Interestingly, in the overall violent offense sample, whites who victimized other whites got 12% longer sentences. Curry and associates (2004) interpreted these findings as supporting the notion that victim race and gender inform the interpretation of the focal concern of blameworthiness.
Franklin and Fearn (2008) uncovered similar findings with a random sample of 1,343 noncapital homicides in 33 large counties. They found no race of victim/offender combination effects, but males who killed females received the longest prison sentences, and females who killed males received 18% shorter sentences than males who killed females. Males who killed males and females who killed females received about 10% shorter sentences than males who killed females. By contrast, Auerhahn (2007) studied 1,137 noncapital homicides (i.e., third-degree murder, voluntary and involuntary manslaughter, homicide by vehicle) in Philadelphia from 1995–2000. Her study found no significant victim effects, but she found that in general, victim race/ethnicity, gender, and whether the victim was an intimate partner or relative of the offender did influence sentence lengths significantly. Thus, there is evidence—albeit mixed—that victim characteristics may matter in noncapital violent (particularly homicide) sentencing, in a manner similar to what has been demonstrated in capital sentencing research (see the review in Paternoster & Brame, 2008).
Sentencing in the Context of Earlier Criminal Justice Decisions
Finally, a comparatively smaller set of studies has examined race/ethnicity and sentencing as related to earlier case-processing events, such as guilty pleas versus trial convictions, as well as charging decisions (including those involving mandatory minimums) and pretrial release. For example, Brennan (2006) found that race/ethnicity did not directly affect sentencing in her sample of female offenders, but she also noted that black and Hispanic women were more likely to receive jail sentences than their white counterparts due to differences in socioeconomic status, community ties, prior record, earlier case processing, and charge severity. Other research has examined whether trial penalties are conditioned by offense severity, criminal history, and offense type, as well as race/ethnicity and gender (Ulmer & Bradley, 2006), and how race/ethnic effects are conditioned by the mode of conviction (Johnson, 2003).
Shermer and Johnson (2010) directly examined the likelihood of federal prosecutors reducing charges for defendants. They found that about 12% of federal cases in their sample involved charge reductions, and defendant race/ethnicity (as well as gender) influenced the likelihood of those charge reductions in drug and violent offenses, with blacks and Hispanics getting less favorable outcomes. These charge reductions in turn resulted in lower sentences for those who received them; and in fact, charge reductions strongly (but not completely) mediated race/ethnic effects on sentence lengths. Kutateladze, Andiloro, and Johnson (2016) examined plea bargain outcomes for marijuana cases with an eye to how plea bargaining conditioned disparity for black and Hispanic defendants. They found that black defendants were more likely to receive plea bargain offers from prosecutors that entailed incarceration than were whites and Hispanics.
Spohn (2009) found that race had an indirect effect on sentence severity through its effect on pretrial detention status, but it did not have a direct effect on sentence severity. Black male offenders were more likely than all other offenders to be detained pretrial, but black male status did not affect sentencing net of pretrial status, meaning that black male status indirectly affects sentence severity through pretrial status.
Finally, a pair of recent studies developed the concept of cumulative disadvantage in connection with race and ethnicity in sentencing decisions. That is, these studies examined the extent to which racial and ethnic disparities accumulate across the criminal justice stages and add up to large differences in punishment outcomes. Kutateladze, Andiloro, Johnson, and Spohn (2014) examined New York County prosecutors’ files and sentencing data, finding that black and Latino defendants were more likely than whites to be detained pretrial, to receive less favorable plea bargain offers, and to be incarcerated, especially for crimes against persons. Each stage thus added up to a substantial black and Latino punishment disadvantage. Similarly, Wooldredge, Frank, Goulette, and Travis (2015) examined defendants in one large northern jurisdiction and found that black defendants were disadvantaged in bail, pretrial detention, and incarceration, adding up to substantial indirect punishment effects of race.
Research suggests that minorities may receive harsher punishments than whites, in part because prosecutors may be more likely to apply mandatory minimums to minorities (Fischman & Schanzenbach, 2012; Starr & Rehavi, 2013). Bjerk (2005) found that prosecutors used their charge reduction discretion to circumvent three-strikes mandatories for some defendants. He found that such circumvention of three-strikes mandatory minimums was moderately less likely to occur for men, Hispanics, and to a lesser extent, blacks. Similarly, Farrell (2003) found that blacks, males, and those convicted by trial were more likely to receive mandatory minimums for firearms offenses.
Ulmer, Kurlychek, and Kramer (2007) conducted a multilevel analysis of prosecutorial discretion in applying mandatory minimums among mandatory-eligible offenders sentenced for drug crimes or as three-strikes offenders. Hispanic males were more likely to receive mandatory minimums, and black/white differences in mandatory application increased with county percent black, such that blacks were more likely to receive mandatories in counties with greater black populations. Crawford (2000) (see also Crawford, Chiricos, & Kleck, 1998) isolated a sample of offenders eligible for designation as habitual offenders, thus exposing them to enhanced prison sentences, and then analyzed whether offenders actually were so designated (a decision that involved both prosecutorial and judicial discretion). Young black offenders in particular were more likely to be designated as habitual offenders, and thus to be more severely sentenced. Chen (2014), who studied California three-strikes law sentencing, found that African Americans were more likely to receive three-strikes sentences than eligible whites, and that Latino defendants were more likely to receive three-strikes sentences in counties with larger Latino populations (as noted previously).
As many recent commentators have pointed out, the existing literature on race, ethnicity, and sentencing disparity leaves a number of gaps in knowledge, and a number of promising new opportunities lie on the horizon as well.
The largest gap is in understanding prosecutorial discretion, the importance of which sentencing researchers have agreed on and desired to fill since the 1970s. Such research is necessary to examine the kind of cumulative disadvantage across criminal justice stages that affects racial and ethnic minorities, as found by Kutateladze et al. (2014) and Wooldredge et al. (2015). The largest obstacle standing in the way of such knowledge is general preconviction data, especially data on initial or indictment/information charges, conviction/acquittal outcomes, and characteristics of guilty pleas (e.g., pleas to charge reductions, sentence recommendations, or both). Data on charges would allow researchers to investigate racial or ethnic disparities related to charge reductions connected to guilty pleas, while data on convictions and acquittals would allow researchers to look at disparities in conviction processes and investigate issues of selection across criminal justice decisions and their implications for race and ethnic disparities (Bushway, Johnson, & Slocum, 2007; Bushway & Piehl, 2007).
Fortunately, there appear to be some new possibilities in this direction. On the one hand, the SCPS data provides information about preconviction charges and outcomes (such as pretrial release) and has been used in several studies (e.g., Fearn, 2005; Demuth, 2004; Bushway & Piehl, 2007; Piehl & Bushway, 2007; Franklin, 2010), although the SCPS data presents notable limitations of its own (such as difficulty measuring and ranking offense severity across state legal jurisdictions and difficulties in constructing refined, detailed criminal history measures). On the other hand, it is becoming more possible to access preconviction outcome data from federal courts, as the Urban Institute has put together linking files that connect data from the Administrative Office of U.S. Courts with U.S. Sentencing Commission data (e.g., Shermer & Johnson, 2010). Furthermore, as court records systems continue to become increasingly computer automated, researchers may seek to obtain preconviction/presentencing case-processing data from a single jurisdiction or a small number of jurisdictions.
As reviewed previously, a few valuable studies have now examined judge characteristics and between-judge variations in sentencing, as well as how it affects racial and ethnic disparity. In addition, recent research has examined between-prosecutor and between-judge variations in the effects of extralegal predictors on sentencing (Johnson, 2006; Spohn & Fornango, 2009; Anderson & Spohn, 2010). More such research would be of great value to both scholarly audiences and policymakers. For this research to occur, more jurisdictions and relevant governmental agencies would need to release such data. At a minimum, agencies could provide anonymized judge identifiers. But the Pennsylvania Commission on Sentencing now releases judge identifications with their sentencing data, to no apparent ill effect for judges. More sentencing commissions and criminal justice data agencies could follow.
Race and Ethnic Disparity and Legally Relevant and Policy-Driven Sentencing Criteria
In addition to the many issues related to race and ethnicity in actual sentencing and case-processing decisions discussed in this article, specific sentencing policies likely differentially affect blacks and Hispanics (Bushway & Forst, 2013; Frase, 2013). That is, perhaps sentencing policy structures, such as mandatory minimums or features of sentencing guidelines, encode racial and ethnic disparity into sentencing by emphasizing punishment criteria that differentially affect blacks and Hispanics, especially males (Baumer, 2013; Engen, 2009; Frase, 2013; Ulmer, 2012). Bushway and Forst (2013, p. 201) refer to this as “Type B discretion” and call for more study of such differential impact. Type B discretion shapes and provides the windows for the sentencing discretion exercised by judges and prosecutors (Ulmer, 1997).
For example, the Pennsylvania sentencing guidelines allow the counting and consideration (and also the waiver) of certain juvenile adjudications in the guidelines’ prior criminal record score. Ulmer and Laskorunsky (2016) examined the role of juvenile adjudications as a component of criminal history and how these adjudications differentially affected the sentencing of black and Hispanic adult defendants. They found that black men were uniquely disadvantaged by earlier juvenile adjudications when they faced sentencing as adults. In fact, juvenile adjudications only disadvantaged black men in punishment outcomes, not white or Hispanic men or women.
Ulmer, Painter-Davis, and Tinik (2016) examined the extent to which black and Hispanic male disproportionality in incarceration and its length was mediated by sentencing guideline factors and mandatory minimums in federal district courts and state courts in Pennsylvania. If differential punishment of black and Hispanic men is strongly mediated by guideline factors and mandatory minimums, it would indicate that these policies have differential impact on black and Hispanic men. They found that most black and Hispanic male disproportionality in incarceration outcomes in federal sentencing, as well as about half of the disproportionality in Pennsylvania incarceration, was explained by policy-driven factors, especially defendant criminal history and the imposition of mandatory minimums. Thus, these sentencing policy factors have considerable differential impacts on black and Hispanic men, increasing their likelihood and length of incarceration.
Researchers have not fully investigated ways in which such legally relevant, policy-driven sentencing criteria mediate and moderate the effects of race and ethnicity in sentencing. Further research in this vein could examine the extent to which black and/or Hispanic defendants are disadvantaged or advantaged in particular case circumstances and for particular offenses. Studies also could examine the extent to which criminal history aggravates or blunts the effects of race or ethnicity. With such research, we will move toward better understanding of how punishment policies, along with courtroom sentencing discretion, are intertwined with the disproportional burden borne by racial and ethnic minorities in mass incarceration and its aftermath.
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