Contemporary societies are culturally diverse. This diversity can be the result of different historical and social processes and might affect the uniformity and efficiency of criminal justice systems. Colonization of indigenous populations that started in the 15th century later European colonization of Africa and migration flows following the Second World War have contributed to this diversity in different ways. The growing importance acquired by culture in the criminal law domain went hand in hand with the attention received by it both in the human rights field (especially linked to minority rights) and in the field of sociological and criminological theories.
Nowadays, crimes such as female genital mutilation, forced marriages, and other behaviors grounded in “culture or tradition” form the object of several international human rights instruments and media reports. The way in which criminal justice systems deal with such cases, and more in general with cultural factors, varies greatly. Different instruments have been proposed to allow the consideration of cultural elements within criminal proceedings among which (in common law countries) is the formalization of an autonomous “cultural defense.” However, international human rights instruments, especially those protecting the rights of vulnerable subjects such as women and children, have repeatedly discouraged states to take into account “culture, religion, and tradition” as grounds for justification (see, e.g., the Istanbul Convention).
Criminal proceedings are not the only setting to deal with culture and crime. More recently, the development of alternative dispute resolution mechanisms and restorative justice both within formal and informal (community) settings have given an additional option to take culture into account in the resolution of disputes (in terms of procedures used and normativities in play). Concerns exist with regard to the substantive and procedural rights of participants to these programs. However, these alternatives could represent a way to allow a certain degree of legal pluralism and facilitate access to justice for minority groups.
Kayla Crawley and Paul Hirschfield
The school-to-prison pipeline (STPP) is a commonly used metaphor that was developed to describe the many ways in which schools have become a conduit to the juvenile and criminal justice systems. The STPP metaphor encompasses various disciplinary policies and practices that label students as troublemakers, exclude students from school, and increase their likelihood of involvement in delinquency, juvenile justice, and subsequent incarceration. Many external forces promote these policies and practices, including high-stakes testing, harsh justice system practices and penal policies, and federal laws that promote the referral of certain school offenses to law enforcement. Empirical research confirms some of the pathways posited by STPP. For example, research has shown that out-of-school suspensions predict school dropout, justice system involvement and adult incarceration. However, research on some of the posited links, such as the impact of school-based arrests and referrals to court on school dropout, is lacking.
Despite gaps in the empirical literature and some theoretical shortcomings, the term has gained widespread acceptance in both academic and political circles. A conference held at Northeastern University in 2003 yielded the first published use of the phrase. Soon, it attained widespread prominence, as various media outlets as well as civil rights and education organizations (e.g., ACLU, the Advancement Project (they also use “schoolhouse-to-jailhouse track”), the National Education Association (NEA), and the American Federation of Teachers) referenced the term in their initiatives. More recently, the Obama administration used the phrase in their federal school disciplinary reform efforts. Despite its widespread use, the utility of STPP as a social scientific concept and model is open for debate.
Whereas some social scientists and activists have employed STPP to highlight how even non-criminal justice institutions can contribute to over-incarceration, other scholars are critical of the concept. Some scholars feel that the pipeline metaphor is too narrow and posits an overly purposeful or mechanistic link between schools and prisons; in fact, there is a much more complicated relationship that includes multiple stakeholders that fail our nation’s youth. Rather than viewing school policies and practices in isolation, critical scholars have argued that school processes of criminalization and exclusion are inextricably linked to poverty, unemployment, and the weaknesses of the child welfare and mental health systems. In short, the metaphor does not properly capture the web of institutional forces and missed opportunities that can push youth toward harmful choices and circumstances, often resulting in incarceration. Many reforms across the nation seek to dismantle STPP, including non-exclusionary discipline alternatives such as restorative justice and limiting the role of school police officers. Rigorous research on their effectiveness is needed.
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.
The unofficial War on Terror that began in the wake of the September 11, 2001 terror attacks in the United States expanded a wide range of formal social controls as well as more informal methods of punitive control that were disproportionately directed toward Muslims, Arabs, Middle Easterners, and those who were perceived to be. Although terrorism had been racialized long before 9/11, this event galvanized American support for sweeping new policies and practices that specifically targeted racial and ethnic minorities, particularly those who were immigrants. New agencies and prisons were created, individual rights and civil liberties were restricted, and acts of hate and discrimination against those who were racially, ethnically, and religiously stereotyped as potential terrorists increased. Although research shows that most domestic terrorism is not perpetrated by Muslims, Arabs, or those originating from the Middle East, the racialized stereotype of terrorists had a major impact on how the War on Terror was executed and how its implementation affected members of certain minority groups in the United States.
Marisa Omori and Oshea Johnson
There have been two major approaches to studying racial and ethnic inequality in punishment: The first approach comes from the sociology of punishment and social inequality literatures, and considers how the carceral state, including criminal justice institutions, create racial inequality through policies and practices broadly, or how racialized narratives are embedded in these policies and practices. This includes how scholarship has been drawn from institutional racism and other race literatures and integrated these ideas into how punishment policies and practices are racialized, as well as how the criminal justice system is both a consequence of and a contributor to increasing racial inequality. In particular, the social inequality literature has also been concerned with the rise of mass incarceration and its consequences for racial inequality in individuals, families, and communities.
The second approach is drawn from the criminology literature on courts and sentencing, and generally focuses on the magnitude and location of racial disparities for individuals being processed in the criminal justice system, with a particular attention to sentencing outcomes. There are several complementary frameworks that have been used to frame racial inequalities in punishment outcomes; most of them focus on individual-level decisions and decision-makers, with some considerations of organizational-level factors. Most often, this literature also quantitatively tests racial disparities of court processing and court case outcomes, with a particular focus on sentencing of convicted defendants, including whether a defendant was sentenced to prison or not (the “in/out” decision), and the length of prison sentence. The two perspectives can inform each other; the sociology of punishment focuses on policies and practices that drive racial inequality, and the courts and sentencing literature focuses on the consequences of these factors in case processing outcomes.