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Article

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.

Article

The juxtaposition of two major recent legal developments—the emergence of victims’ rights, and the increasing prevalence of plea bargains in the criminal process—raises profound dilemmas. Ever since the end of the 18th century, criminal proceedings have been conducted by states against defendants, based on the traditional view that crime is an offense against the state. Hence, victims’ participation has been curtailed under different legal systems. In adversarial (Anglo-American) systems, based on common law, the parties dominate the proceeding, and the onus is on the prosecution to prove its case; while in inquisitorial systems (continental), the judge dominates the proceedings, thus reducing the responsibilities of the parties. Although most states display mixed adversarial and inquisitorial characteristics, three systems exemplify different approaches to victims’ rights in plea agreements. The federal US system—the adversarial legal system in which the victim movement began its first steps; the French system—a civil law system, where victims are allocated a formal, albeit limited role; and the Israeli system—a juryless common-law-based system, where professional judges make both legal and evidentiary decisions. In the Anglo-American systems, victims were marginalized, and this lack of standing resulted in one of the more important legal developments of the 20th century—the struggle for victims’ rights. The victims’ movement is a grassroots movement, a social phenomenon that has led to significant legal changes. Consequently, a new perception has seemingly been incorporated into adversarial criminal law systems, whereby victims’ interests should be taken into account. The federal U.S. law enshrined victims’ rights in 2004, and in Israel the major legislation of victims’ rights took place in 2001. In the French system, since the early 20th century, victims have been formally recognized as partie civile—the civil side to the criminal process. The victims have a standing and they can claim compensation. The question of victims’ role in plea agreements is of particular importance, since in recent years, plea agreements have become the rule rather than the exception in Anglo-American criminal proceedings. In 2004, the French law also created a mechanism akin to plea agreements. In the federal U.S. system, victims can express their opinion regarding a plea agreement, and they can apply for a writ of mandamus, should any of their rights be disregarded by the prosecution. Under the Israeli system, victims of severe sexual and violent offenses may speak to the prosecutor and express their views, albeit not in court. In the French system, the victims’ role in plea agreements is limited to claiming compensation. Despite these developments, victims’ rights in plea agreements may still be partial or ineffective. For example, under both U.S. and Israeli law, the victims’ objection to such an agreement may have a very limited effect on the criminal process. Moreover, the prosecution has been granted immunity from any civil lawsuit following infringement upon victims’ rights. Under the French system, the victims’ involvement is limited to an appeal regarding the compensation she has been awarded.