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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.

Article

Marian R. Williams

The death penalty has long been a source of debate and is perhaps the most litigated sentence in the United States. Arguments for the use of the death penalty point to “just deserts” or retribution, while arguments against its use point to its implementation, including how the death penalty is administered (e.g., via electrocution, lethal injection), the types of offenses that are eligible for the death penalty (e.g., murder, rape, treason), and the offenders who are sentenced to death (e.g., males, minorities). This latter concern is the subject of much research, to the extent that a number of U.S. Supreme Court cases have addressed this research, especially in the cases Furman v. Georgia (1972) and McCleskey v. Kemp (1987). Research has indicated that those who are sentenced to death share common characteristics, including gender, minority status, social class, geography, and victim similarities. Overwhelmingly, research has noted that, in general, those who kill white victims are the most likely to receive a death sentence, particularly black offenders who kill white victims. Also, males are more likely to receive a death sentence than females, low-income individuals are more likely to receive a death sentence than higher-income individuals, and committing a capital offense in a handful of counties in the United States increases the likelihood of a death sentence. It is difficult to determine in most cases the reasons for this disparity. Outright discrimination by prosecutors, judges, and/or juries is a possibility, but the court system has made it extremely difficult for offenders to prove discrimination in their individual cases. Some researchers argue that the criminal justice system is stacked against minorities and the poor, by enforcing laws more forcefully in their neighborhoods and requiring financial resources to defend oneself (e.g., bail, defense attorneys). Regardless of the reason for disparate treatment in individual cases, the fact that disparate treatment exists is concerning in a country whose constitution emphasizes due process and equal protection under law.

Article

Paul Kaplan

The death penalty, also referred to as capital punishment, is the process whereby a state government orders a sentence of death for a person found guilty of a particular set of criminal offenses. In the United States, the primary capital crime is first-degree murder with an additional aggravating factor, usually called a “special circumstance” (e.g., murder of a law enforcement officer). Capital punishment is a complex process that includes a criminal charge, an involved legal process, sentencing, special “death row” prison housing, post-conviction appeals, and the ultimate execution of the defendant. Persons sentenced to death are called condemned. Execution refers specifically to the process in which the defendant is killed. Capital punishment has been practiced throughout human history, with considerable variation across eras and regions. In the last 50 years, the use of capital punishment has declined across the globe, and there are relatively few countries that use it regularly as a form of punishment, most notably China. Some countries have abolished the death penalty completely, such as all member states of the European Union. Most other countries have seen a decline in its use. For instance, only 31 out of 50 states in the United States currently have death penalty statutes (there are also federal death penalty statutes, which are rarely used). The other 19 U.S. states are referred to as “abolitionist.” The “modern era” of capital punishment in the United States was spurred by two important Supreme Court cases. The Furman v. Georgia (1972) decision ruled that arbitrariness in the application of the death penalty deemed its use unconstitutional. The reversal of that ruling four years later in Gregg v. Georgia (1976) reestablished the death penalty in America, and experts refer to the modern era as 1976 to the present.