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date: 21 August 2019

Racial Inequality in Punishment

Abstract and Keywords

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.

Keywords: sociology of punishment, collateral consequences, institutional racism, mass incarceration, attribution, focal concerns, discretion, cumulative disadvantage

Racial Inequality in the Sociology of Punishment

In sociology of punishment, the idea of “punishment” is seen broadly. While the core of punishment literature is still focused on incarceration (and in particular, mass incarceration), punishment is also expansive, covering other types and institutions of control. Therefore, systems of punishment may include parole, probation, and other criminal justice institutions, but also disciplinary programs in schools (Kupchik, 2010; Morris, 2016), regulations of welfare systems (Gustafson, 2012), substance abuse treatment (McKim, 2017), punitive aspects of low-income housing programs (Desmond, 2016), and other ways in which society has been increasingly “governed through crime” in everyday life (Simon, 2007). Punishment scholarship therefore examines the various forms that racial inequality takes, especially with the rise of mass incarceration and expansion of the penal state. Moreover, punishment expands beyond formal policies to also include informal practices. As Schoenfeld (2011) notes, policy in itself does not create changes (such as increasing prison populations) alone, but rather policies are implemented through the behavior and practices of criminal justice actors.

Scholarship on racial inequality in punishment focuses on how or why racial inequality occurs in punishment systems, usually through analysis of policy trends and institutional practices. There have been several institutional frameworks that explain racial inequality in punishment. Building from race scholars (Bonilla-Silva, 2006; Lopez, 2004, 2006), some literature has advanced examining racial inequality as reflective of institutional racism (Alexander, 2012; Lopez, 2004). In this view, the criminal justice system (and other institutions) works in ways to reinforce the racial hierarchy, and therefore functions as a system of domination over people of color. For example, Lopez (2004, p. 123) discusses the idea of “racial commonsense,” which is “a widely shared, taken-for-granted set of ideas within a culture.” Criminal justice actors do not act intentionally, but rather act on taken-for-granted scripts that reinforce racial hierarchy. In other words, frequently repeated and shared practices within the criminal justice system take on rule-like status, and operate in ways that disadvantage people of color.

Many scholars who focus on institutional racism views trace the parallels of the rise of mass incarceration and the overrepresentation of black people in the criminal justice system to historical systems of racial oppression, including slavery and Jim Crow (Alexander, 2012; Wacquant, 2000). In the United States, systems of racial oppression have always existed, but have simply changed form over time. In the current era of color-blindness, overtly punishing people in the basis of race is no longer legally acceptable, and so by designating black and brown people as “criminal,” race-neutral legal categories are created to punish whole classes of people in the criminal justice system. In this way, the criminal justice system is merely the newest form of racial control in this era of color-blindness, where overt racism is unacceptable.

Other scholars have further pointed out that beyond history repeating itself, the political economic context mattered substantially in the growth of racial inequality in mass incarceration, and argue that racial inequality is also a product of politics, not just a legacy of the past (Gottschalk, 2016). These scholars argue that racial inequality in the criminal justice system should be understood in the context of larger changes to the political and economic environment, including a response to increasing crime rates and responses to civil uprisings in the 1960s, and politicians making crime a politicized issue at the national level (Beckett, 1997). In the post-civil-rights era, racial issues became reframed as “law and order” politics (Beckett & Sasson, 2004). As part of the Southern Strategy, southern politicians in particular characterized civil rights protests as the breakdown of “law and order” as a way of appealing to white voters. In this view, these authors emphasize the role of current political and economic gains of appearing “tough on crime,” and how this led to policy decisions that fed mass incarceration.

These racialized narratives also have function at the local political level and organizational levels as well, and can be morphed to fulfill particular political, economic, or organizational objectives. For example, Schoenfeld (2010) demonstrates how prisons conditions litigation in Florida that was originally based on racial justice concerns and intended to reduce incarceration rates was later co-opted in a different political climate to increase prisons. In a study of two different criminal justice organizations, Lara-Millán and Van Cleve (2017) note that the welfare stigma has organizational utility in these different criminal justice contexts: In a court context, the stigma streamlines convictions in courts by “pushing” people through the adjudicative process, and in a jail context, it expands early release, “pulling” people out of inmate populations. Criminal justice actors developed a welfare stigma around poor defendants of color, seeing them as attempting to abuse public resources to those who cannot afford basic living standards, and saw their role as preventing access to these resources (Lara-Millán & Van Cleve, 2017).

Punishment scholars emphasize the importance of examining criminal justice as a racialized system broadly, and as an alternative to color-blind ideologies. Viewing the criminal justice system through a color-blind lens tends to presume the race neutrality of criminal justice until “proven” otherwise, and conceptualizes racial inequality in individualistic, narrow terms (Murakawa & Beckett, 2010; Provine, 2011; Van Cleve & Mayes, 2015). The fact that mass incarceration is still often seen as a criminal justice (rather than racial justice) concern is indicative of this viewpoint (Alexander, 2012). In other words, criminal justice is seen as “racially innocent” despite the large racial inequalities observed in the system today, and a large part of the problem is framing how we see racism narrowly, by “bad” individuals with individual prejudices (Murakawa & Beckett, 2010). A color-blind viewpoint also suggests that racial inequality in incarceration is an indicator of cultural dysfunction of communities of color (Van Cleve & Mayes, 2015). This viewpoint also precludes an examination of the larger structural barriers and institutional practices that may create inequality within systems of punishment.

Moreover, race and criminal justice are “mutually constitutive” of each other (Van Cleve & Mayes, 2015), where ideas of race shape criminal justice punishments, and criminal justice punishments in turn shape ideas of race. For example, ideas of racialized stereotypes of black people, and crack-shaped policies and incentives around proactive policing of crack cocaine, and the targeting of black men and women for crack cocaine further exacerbates existing racial inequalities and reinforces racialized cultural images of black people (Beckett, Nyrop, Pfingst, & Bowen, 2005; Provine, 2011). Furthermore, race itself is embedded in the very policies and tools of criminal justice. For example, criminal history is deeply connected to race and racial meanings, but these meanings are disregarded when it is used as a factor in risk prediction tools. These risk prediction factors are then re-interpreted as race-neutral and objective even while they continue to increase racial inequalities (Harcourt, 2008). In short, because the criminal justice system is a racialized system, race and racism should be a “fundamental concern” for those studying criminal justice punishment.

Finally, beyond examining racial inequality alone, critical race scholars have advocated for understanding racial inequality in the context of gendered, classed, and other intersectional identities (Crenshaw, 2011). While punishment has been disproportionate for black men relative to white men, the impact on black women and other women of color has been devastating. The growth of the incarceration of women, and in particular women of color, has outpaced any other group; since 1980, the growth of women in prison has increased at twice the rate as the growth for men (The Sentencing Project, 2018). As a result, black women now have a 1 in 18 lifetime chance of being incarcerated, relative to 1 in 111 white women. Moreover, women’s punishments for crimes is particularly harmful, as women are more likely to have consequences in terms of caring for children or other family, have high rates of abuse histories, and other community consequences. As Richie (2002, p. 136) notes, incarceration was designed by and for men, and so women are “vulnerable to harsh criminal justice practices that have caused skyrocketing incarceration rates.” In addition to direct harms, women of color are also left as some of the “indirect victims of some of the most pernicious effects of the prison industrial complex” (Richie, 2002, p. 136).

Mass Incarceration, Racial Inequality in Communities, and Carceral State Expansion

The growth of mass incarceration is not only about the sheer volume of people incarcerated, but also the growth in racial inequality of those incarcerated. As Western (2006) points out, the black–white racial inequality in mass incarceration has eclipsed even other metrics for social inequality, including unemployment, infant mortality, and wealth. Many point to the war on drugs and the implementation of other “get tough” sentencing policies, such as mandatory minimum sentences and truth-in-sentencing policies, as a source of growth of racial inequality. Many scholars have discussed how the design and implementation of drug laws, for example, and the places where police targeted drug law enforcement created racial inequality within the criminal justice system (Reinarman & Levine, 1997).

The criminal justice system is both a consequence of and a contributor to increasing racial inequality (Wakefield & Uggen, 2010; Western, 2006), and functions as the “gateway” to larger systems of racial marginalization (Alexander, 2012). Related to other historical systems of racial oppression, scholars have discussed how discriminatory housing patterns and economic development (and disinvestment) have created legacies of “racial-spatial divides” within cities (Peterson & Krivo, 2010). Racial segregation therefore becomes the “lynchpin” of racial inequality because economically marginalized black and brown communities often have limited access to quality education, employment, political power, health care, and other community resources (Massey, 2007; Peterson & Krivo, 2010).

Instead, the criminal justice system functions as one of the major institutions for many poor communities of color (Peterson & Krivo, 2010; Western, 2006). As Hagan and Peterson (1995, p. 17) note, “race-linked patterns of discrimination, segregation, and concentrated poverty may produce . . . disadvantage.” In other words, patterns of repeated arrest, prosecution, and punishment over time are a function of broader patterns of neighborhood segregation and poverty. The growth of the criminal justice system therefore represents a shift in how the socially marginalized are governed in recent decades (Beckett & Western, 2001). Combined with geographically and racially targeted policing practices and drug laws, people of color become disproportionately represented in the criminal justice system.

A large number of studies have also recognized how the criminal justice system creates racially stratified outcomes on the back-end through the “collateral consequences” of incarceration. Policy restrictions for formerly incarcerated individuals on employment, housing, health, and in other areas grew substantially during the drug war and “tough on crime” era in the 1990s. Because the growth of mass incarceration also represented increased racial inequality of black and Latino people being incarcerated at much greater rates than whites, these “collateral consequences” also resulted in racialized punishment and control practices beyond the criminal justice system and into communities of color. Scholars have therefore examined how criminal justice system involvement (and racial inequality stemming from the criminal justice system) have had consequences for other institutions, including employment (Pager, 2008; Western, 2006), housing (Travis, 2005), health (Schnittker & John, 2007; Turney, 2014), families (Turney & Wildeman, 2013; Wakefield & Wildeman, 2013), politics and civic life in communities (Roberts, 2003; Uggen & Manza, 2002), and crime (Rose & Clear, 1998; Travis, 2005).

Further drawing from both punishment and communities literatures, many scholars have focused on how mass incarceration has harmed not just black and Latino individuals and their families, but entire communities of color as well (Clear, 2007; Roberts, 2003; Stewart, Warren, Hughes, & Brunson, 2017). The geographic concentration of incarceration within cities is so great that some states have literally spent millions of dollars incarcerating specific neighborhoods, creating “million dollar blocks” (Gonnerman, 2004). Moreover, this concentration of incarceration rates has stabilized over time (Fagan, West, & Holland, 2004). The concentration of incarceration in poor communities of color means that it has become a normal feature in these neighborhoods (Roberts, 2003). For example, in his study of Oakland, Rios (2011) finds that, in marginalized communities of color, punishment and surveillance practices such as police harassment, exclusions from business and public spaces, profiling, and other degrading interactions are extended to non-delinquent youth. These actions led youth of color to become criminalized whether they were engaging in criminal activities or not, and were embedded in the community.

The increasing focus on neighborhoods and the racialization of space provide another lens to view punishment and racial inequality. Because of the scale and the geographic concentration of mass incarceration, Roberts (2003, p. 1279) has noted that harms to communities of color from mass incarceration is more than just a simple aggregation of individual effects, because it impacts social relationships at the community level in three ways: By damaging social networks and social capital, distorting social norms, and destroying social citizenship. When communities have high levels of incarceration, social networks in the community are disrupted, which often lead to the crumbling of social and economic supports (Rose & Clear, 1998), weakening of informal social control and organization of communities (Meares & Kahan, 1998; Sampson, Raudenbush, & Earls, 1997), and the “collateral consequences” of incarceration.

Beyond even “collateral consequences” of incarceration, punishment scholars have examined how increasingly non-criminal justice system institutions also perpetuate inequality through mimicking and co-opting criminal justice system narratives and punitive practices, and in many cases, by interfacing with the criminal justice system directly. For example, in his study of Los Angeles’ skid row, Stuart (2011) argues that law enforcement coerces black skid row residents into low-paying jobs. In doing so, criminal justice has also expanded into social welfare organizations serving to regulate poor people of color with the threat of incarceration.

Some of these less visible developments have been termed the “shadow carceral state” (Beckett & Murakawa, 2012), where punitive practices expand beyond the formal criminal justice system. Beckett and Murakawa (2012) note that the shadow carceral state includes institutions beyond the criminal justice system that have the capacity to impose punitive sanctions, such as immigration and family courts, civil detention facilities, and county clerk’s offices. In her examination of two substance abuse treatment centers for women, McKim (2017) examines how these treatment centers create racialized and gendered narratives of addiction, which is also related to their relationship to the criminal justice system. Moreover, one of the treatment centers was backed by the threat of prison, creating a direct connection to the criminal justice system. Thus, these scholars emphasize how even non-criminal justice system institutions not only punish people of color as “penal satellites” (McKim, 2017), but also sometimes work directly in cooperation with the criminal justice system to maintain racial inequality in formal punishments as well.

Racial Disparities in Courts and Sentencing

The second literature that discusses racial inequality in punishment is based on criminology research around courts and sentencing. There are several complementary frameworks that have been used to frame racial inequalities in punishment outcomes, including discretion, attribution and focal concerns, and cumulative disadvantage. Most of these perspectives focus on individual-level decisions and decision-makers, with some considerations of organizational-level factors. This literature also generally focuses on the location and scale of racial disparities of specific court processing and court case outcomes quantitatively. In particular, researchers tend to focus on sentencing outcomes of convicted defendants, including whether a defendant was sentenced to prison or not (the “in/out” decision), and the length of prison sentence (Baumer, 2013; Ulmer, 2012).

As Zatz (1987) notes, there are four main waves of research in racial inequality in sentencing, including: (a) overt discrimination (through the mid-1960s); (b) a revision of these findings to specify that more severe sentences reflected to a higher involvement in crime, suggesting that there was no discrimination (late 1960s–1970s); (c) findings of overt and subtle bias (late 1970s–1980s), and (d) the increase subtle and indirect rather than overt forms of bias (through the 1990s). Some scholars have noted that we are now a fifth wave of scholarship, where researchers are considering the context in which race matters, including how it matters across multiple stages, indirect paths, and in cumulative ways in the criminal justice system Spohn (2014).

Unwarranted Disparities/“Extralegal” Disparities

Regardless of the explanation, many court and sentencing scholars view racial inequalities in punishment outcomes as unwarranted disparities. An unwarranted disparity is residual variation not attributable to legally mandated sentencing factors (Stolzberg & D’Alessio, 1994). Courts and sentencing scholars in criminology have considered “extralegal” characteristics to include race, gender, socioeconomic status, and age. Unwarranted and extralegal disparities therefore exist when there are disparities between racial and ethnic groups after controlling for “legally relevant” characteristics such as criminal history, offense type, and offense seriousness. Direct racial inequalities in sentencing tend to be relatively small (Baumer, 2013; Franklin, 2018; Mitchell, 2005). In a meta-analysis examining probability of incarceration, length of incarceration, sentence severity, and a number of sentencing outcomes, Mitchell (2005) finds that there are small but statistically significant black–white racial differences, even after controlling for other key variables. He also finds that larger disparities tend to occur in drug cases, and in decisions there is greater discretion (Mitchell, 2005, 2018). For example, people of color are more likely than whites to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences (The Sentencing Project, 2018). Similarly, Spohn’s (2000) review study found that black and Hispanic offenders, particularly those who are young, male, or unemployed, are more likely to be sentenced to prison and, in some jurisdictions, receive longer sentences or differential benefits from guideline departures than their white counterparts.

Most courts and sentencing scholars argue that racial disparities in the criminal justice system are a function of differential treatment of people of color, acknowledging that there are disparities even after controlling for differences in offending rates (known as the “differential involvement thesis”). The differential involvement thesis posits that overrepresentation of minorities in criminal justice reflect differences in offending between white and minority people (Bridges, Crutchfield, & Simpson, 1987), attributed to the “root causes” or “structural disadvantages” associated with crime, such as residential segregation and concentrated poverty (the “racial invariance” thesis). Due to the substantial evidence of various findings of direct and indirect effects of race on sentencing outcomes, Engen, Steen, and Bridges (2002) conducted a study of the different theoretical perspectives and methodologies that have been done on racial disparities in the criminal justice system. The authors conclude that controlling for prior offending partially explain differences across studies in findings of disparity, but controls for offense seriousness do not; lends some support to differential treatment hypothesis (Engen et al., 2002).

Research in courts has found that many disparities are not necessarily direct. In an article analyzing four waves/time periods of research on sentencing disparities, Zatz (1987) found that research has uncovered subtle rather than open bias. In some studies, she found that the main effects of race on sentencing are conditional and subtle (Zatz, 1984, 2000). For example, research shows that there is a detrimental effect of sentence enhancement if a prior record exists for Chicanos, and concludes that more criminological research should be focused toward examining disparities for this racial/ethnic group (Zatz, 1984). Similarly, Engen et al. (2002) find that 29% of studies reported significant direct effects of race or ethnicity (minority youth receive more severe or more formal processing than whites), 15% find conditional effects, and 56% find no effects. Finally, Zatz (2000) urges researchers to think about the relationship between race, ethnicity, gender, and class more fully. For example, while judges see women as less blameworthy than men, these decisions may be due to judicial and prosecutorial attributions toward race- and class-based definitions of a “good” mother. Being able to conceptualize and assess these interlocking social relations can help understand the way court decision-making is raced, classed, and gendered.

Finally, there has been research on the use of sentencing guidelines, particularly at the federal level. Because much of the impetus for guidelines was to reduce racial inequalities in sentencing (Fishman & Schanzenbach, 2012), most of the research has examined whether these guidelines have actually reduced disparities on the ground. While some researchers have noted that including guidelines-specified sentences (also known as “presumptive sentences”) in analyses do reduce racial and gender inequalities in final sentences (Engen & Gainey, 2000), other researchers argue that these guidelines simply hide racial inequalities that are built into guidelines systems, and instead focus only on small racial differences that occur between the guidelines-suggested sentence and the final sentence (Lynch & Omori, 2018; Starr & Rehavi, 2013).

Discretion, Attribution, and Focal Concerns

Although some racial inequalities may stem from policies, criminal justice actors have considerable discretion and power to make decisions. Some scholars contend that racial disparities are the function of individual biased decision-makers or biased decisions based on stereotypes. A substantial amount of literature focuses on the use of power and discretion of these street-level bureaucrats, and how their decisions directly affect people and their criminal justice outcomes. For example, Dannefer and Schutt (1982) found that racial bias is more apparent in police dispositions than in judicial decisions. The greater bias at early stages suggests that when police have the option to refer offenders to juvenile court, they must make quick decisions compared later stages in the court process, which is usually more formal and bureaucratic (Dannefer & Schutt, 1982). These racial disparities extend to other less visible decisions in the court with high levels of discretion, including the prosecutor’s decision to charge. For example, earlier research that examined pretrial disparities and prosecutors’ decisions to reject or dismiss charges revealed a pattern of disparities in favor of female defendants and against black and Hispanic defendants (Spohn, Gruhl, & Welch, 1987).

Research has also noted how racialized and classed stereotypes have been used by street-level bureaucrats to exercise discretion differentially. Some research in courts and sentencing has highlighted how much discretion and power prosecutors have to act as street-level bureaucrats. Because prosecutors are involved in many stages of the process, such as the number and types of charges (including the power not to charge at all), control over case facts, and plea bargain terms, including the type and severity of sentence (Johnson, King, & Spohn, 2016). Guilty pleas are more common today than ever before as a result of this increased prosecutorial power. Pfaff (2017) notes that prison growth is due to increased prosecutorial toughness rather than longer sentences, and prosecutors have grown over the past 40 years. He describes prosecutors as “politically powerful [mostly] directly elected and independent of almost any oversight, and substantially better positioned than defense attorneys” (Pfaff, 2017, p. 128). Other research (Rehavi & Starr, 2013 Starr & Rehavi, 2012) has similarly found that prosecutorial discretion matters substantially. For example, Starr and Rehavi (2012) found that black defendants face significantly more severe and longer charges than whites, and prosecutors are almost twice as likely to file mandatory minimum charges against blacks. In both studies, they concluded that half of the racial sentencing disparity can be explained by the initial charging decisions of the prosecutors to file charges that have “mandatory minimum” sentences (Rehavi & Starr, 2013; Starr & Rehavi, 2012).

Numerous scholars have used an implicit bias framework to explain how prosecutorial and judicial decisions made by criminal justice system actors disproportionately affect people of color (Albonetti & Hepburn, 1996; Berdejo, 2018; Schlesinger, 2013), although few scholars test individual attribution or bias directly. The research on attributions by criminal justice court actors generally supports less favorable outcomes for black and Latino defendants relative to white defendants (Albonetti & Hepburn, 1996; Britt, 2000; Spohn et al., 1987). For example, research examining interactions with the criminal justice system and race has found that black youth are viewed as adult-like and less innocent than white boys (Hall, Perry, & Hall, 2016). People sometimes hold biases based on gender or prior record. For example, Albonetti and Hepburn (1996) tested interactions between record and race, gender, and age. They find that young defendants with a prior arrest condition the relationship between minority status and odds of diversion. Moreover, these attributions may differ based on the type of offense, since stereotypes may be linked to specific offenses (Steen et al., 2005). For example, Hagan and Foster (2006) find that selective punishment practices disable African American youth and enable affluent white youth who engage in a party subculture. White youth are referred to as “secret deviants,” while African American youth are labeled official deviants and formally punished by the court system (Hagan & Foster, 2006).

Court actor uncertainty around decisions can influence implicit bias. Albonetti (1986, 1991) advanced an “uncertainty reduction” or “uncertainty avoidance” perspective, theorizing that when court actors face high levels of uncertainty and incomplete information when making case decisions, they attribute racialized stereotypes based on “typical offenders” with “typical crimes.” Using an uncertainty avoidance framework, Albonetti and Hepburn (1996) note that decision-makers operate from limited knowledge of available alternatives and rely on a “bounded rationality” that makes them rely on past stereotypes (Albonetti & Hepburn, 1996). Berdejo (2018) similarly argues that in “low information” cases, race is used as a proxy for criminality. Examining prosecutorial discretion, Schlesinger (2013) examines whether a defendants’ race is associated with his odds of receiving a pretrial diversion, she finds that prosecutors are more likely to grant pretrial diversions to white defendants than they are to grant the same diversions to black or Latino defendants with similar legal characteristics. Similarly, noted that these attributions may extend to place-based assessments, because court decision-makers have certain perceptions of some neighborhoods and the types of people who reside in these neighborhoods.

Extending the attribution and stereotype literature, focal concerns perspective developed by Steffensmeier and colleagues additionally incorporates organizational considerations into decision-making (Steffensmeier, 1980; Steffensmeier & Demuth, 2006; Steffensmeier et al., 1998). According to the focal concerns perspective, prosecutors and judges (and other court actors) make sentencing decisions based on three focal concerns: the blameworthiness and culpability of the offender; a desire to protect the community, and concerns about practical constraints and consequences. Criminal justice actors must often make decisions in an organizational environment with limited time and information. Due to these constraints, they must sometimes rely on race-based stereotypes to make quick decisions based on a defendant’s characteristics. In particular, the most prevalent criminal stereotypes target young, black males, and research has supported that this race-age-gender group tends to receive the most punitive sentences because, due to “perceptual shorthands,” they are perceived as more blameworthy and may be perceived as a larger threat to protection of the community (Steffensmeier et al., 1998). Ulmer and Johnson (2004) argue that, in addition to individual case factors, court organizational culture and caseload pressure impact sentencing outcomes. They find that those convicted by trial with harsher sentences mean that individual defendants are differentially punished for exercising their constitutional right to trial. Particularly in an era of mass case processing, the stringent time and information limits of the court creates an organizational environment where actors must make quick decisions that rely on racialized stereotypes, creating racial inequality in court outcomes.

In addition to organizational considerations of caseload pressure, racial representation in the courtroom also has ramifications for implicit assessments of defendants. Farrell, Ward, and Rousseau (2009) found that balance in racial group representation among court authorities relates to more equal outcomes, and that imbalances in racial group representation among court authorities may favor each group alike. The authors assert that having black representation among court authorities can alter implicit bias by shifting the relative weight of black and white preferences and limiting activation of stereotypical associations that disadvantage black defendants. In a related study, Farrell et al. (2009) note that black representation among decision-makers affects sentencing differently depending on the occupation group under consideration. More specifically, increased representation of black prosecutors decreases the disparity between white and black imprisonment. Western (2006) notes that people of color are more likely to be incarcerated because of their presence in cities with concentrated poverty.

Finally, more recent research into stereotyping and bias has also explored skin tone and Afrocentric facial features. For example, King, Ryan, and Johnson (2016) investigated the colorism thesis by examining the association between defendant’s skin tone, Afrocentric facial features, and criminal punishment. They found that darker skin tone and Afrocentric facial features are associated with harsher sanctions, and that the Afrocentric facial features’ association with punishment was particularly salient for white defendants. Specifically, whites with features that are more typically associated with blacks, like darker skin tone and more Afrocentric facial features, are treated more punitively (King, Ryan, & Johnson, 2016). Colorism and unequal treatment in the criminal justice system is also apparent among women. Researchers studying incarcerated African American women in North Carolina found that women with lighter skin tones received more lenient sentences and served less time than women with darker skin tones (Viglione et al., 2011). Research has also found that people associate black physical traits with a higher likelihood of criminality. Basically, the more stereotypically black a person appears physically, the more criminal that person is perceived to be (Eberhardt et al., 2004).

Cumulative Disadvantage

A significant amount of research on criminal case processing typically examines a single point in a defendants’ interaction with the criminal justice system, which makes drawing conclusions about the impact of defendant’s race or ethnicity across the various stages of the criminal justice system difficult to assess. Already in the 1970s, Hagan (1975) asserted that future research is needed to better capture the process through which people traverse through the criminal justice system, since it may operate in a way that cumulatively disadvantages defendants of color. While there are multiple conceptualizations of cumulative disadvantage, in the criminal justice context it is generally described as small racial and ethnic disparities that occur at many points in the criminal justice system, and may compound over the course of a person’s interaction with the system. DiPrete and Eirich (2006, p. 272) define cumulative advantage as:

The advantage of one individual or group over another grows (i.e. accumulates) over time, which is often taken to mean that the inequality of this advantage grows over time. . . . A cumulative advantage process is capable of magnifying small differences over time and makes it difficult for an individual or group that is behind at a point in time in educational development, income, or other measures to catch up.

Since its inception, there has been some (and increasing) research examining the multiple discretionary points in the justice system that act as a cumulative disadvantage for people of color (DiPrete & Eirich, 2006; Kutateladze et al., 2014; Menefee, 2018; Sutton, 2013). Estimating the total effects of cumulative racial disadvantage, Kutateladze et al. (2014) find that black and Latino defendants receive the most disadvantaged combination of outcomes more often than white and Asian defendants, including being detained pretrial, having their case accepted for prosecution, having a plea offer, and being sentenced to incarceration. In breaking down the stages, other research has demonstrated that black, Latino/a, and American Indian youth are treated more severely than white youth across multiple stages of juvenile court processing including the front-end (diversion and detention) as well as back-end (out-of-home placement) (Rodriguez, 2010).

Rodriguez (2010) asserts that structural disadvantages was a significant predictor of front-end court processing for minority youth, such as detention, which makes arguments about racial segregation a potential key factor in minority youth’s early disadvantage with the criminal justice system (Massey, 1990; Peterson & Krivo, 2010). Thus, cumulative disadvantage perspectives examine not only how racial inequality may cumulate over many decision points within the system, but also how initial structural disadvantages beyond the system create inequalities within the system. In this way, the cumulative disadvantage literature can bring in stratification perspectives in considering how the criminal justice system may in itself reproduce these inequalities.

A significant amount of research finds disparities at the arrests and charging stage of the criminal justice system, and these disparities often contribute to racial disparities in sentencing (Berdejo, 2018; Hagan & Peterson, 1995; Owens, Kerrison, & Da Silveria, 2017; Sutton, 2013). In his study of cumulative disadvantage, Sutton (2013) not only finds evidence of racial/ethnic bias at the sentencing stage, but also notes that unjust main effects of race and ethnicity are strong in the earlier stages of the process, particularly the decision to detain. Rodriguez (2010) notes that later court processing outcomes may in fact minimize some of the earlier, larger racial disparities in the system.

Future Research: Integrating Perspectives and Understanding Punishment in Context

While there has been significant research on racial inequality and punishment, substantial future work remains for punishment, courts, and sentencing scholars. First, while some work has integrated both perspectives, additional “bridging” work is needed between these two literatures. This may include punishment scholarship which increasingly takes into considerations how the “law in action” operates on the ground in terms of mass case processing, and courts and sentencing scholarship that in turn encompasses theoretical considerations about the role of both formal laws and informal practices in creating observed inequalities in case outcome data. For courts and sentencing scholars, this also means turning to prior stages of criminal case processing to understand how multiple stages operate together to generate inequality, as well as further unpacking the relationships between communities, other institutions, and the criminal justice system.

Relatedly, while some work has examined how the social, economic, and historical context shapes punishment outcomes, this literature could use further development. On the punishment side, scholars have increasingly advocated for examining how punishment practices operate locally, even under similar formal laws. For example, Lynch (2016) finds a vastly different practices in different federal courts, even though they are all under the same formal legal system. In examining sentencing outcomes, some research has found that social context influences sentencing practices (Feldemeyer & Ulmer, 2011; Johnson, 2006; Kautt, 2002; Ulmer & Johnson, 2004), but this area of research should be expanded. In part, this research could also be tied more explicitly to the concentration of mass incarceration in communities. In other words, while researchers have found that people of color are more likely to be incarcerated due to their presence in cities with concentrated poverty (Western, 2006), and researchers have discussed “million dollar blocks” (Gonnerman, 2004), the process by which these million dollar blocks are created through criminal justice decisions is still a ripe avenue for research.

Acknowledgments

The authors would like to acknowledge Vivian Phung for her research assistance on the project.

Further Reading

Albonetti, C. A. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theory of discretionary decision making in felony case processings. Criminology, 24(4), 623–644.Find this resource:

Baumer, E. P. (2013). Reassessing and redirecting research on race and sentencing. Justice Quarterly, 30(2), 231–261.Find this resource:

Hagan, J. (1974). Extra-legal attributes and criminal sentencing: An assessment of a sociological viewpoint. Law & Society Review, 8(3), 357–384.Find this resource:

Kutateladze, B. L., Andiloro, N. R., Johnson, B. D., & Spohn, C C. (2014). Cumulative disadvantage: Examining racial and ethnic disparity in prosecution and sentencing. Criminology, 52(3), 514–551.Find this resource:

Lopez, I. H. (2006). White by law: The legal construction of race. New York, NY: New York University Press.Find this resource:

Mauer, M., & Chesney-Lind, M. (2002). Invisible punishment. New York, NY: The New Press.Find this resource:

Murakawa, N., & Beckett, K. (2010). The penology of racial innocence: The erasure of racism in the study and practice of punishment. Law & Society Review, 44(3–4), 695–730.Find this resource:

Peterson, R. D., & Krivo, L. J. (2010). Divergent social worlds: Neighborhood crime and the racial-spatial divide. New York, NY: Russell Sage Foundation.Find this resource:

Roberts, D. E. (2003). The social and moral cost of mass incarceration in African American communities. Stanford Law Review, 56, 1271.Find this resource:

Ulmer, J. T., & Johnson, B. (2004). Sentencing in context: A multilevel analysis. Criminology, 42(1), 137–178.Find this resource:

Van Cleve, N. G., & Mayes, L. (2015). Criminal justice through “colorblind” lenses: A call to examine the mutual constitution of race and criminal justice. Law & Social Inquiry, 40(2), 406–432.Find this resource:

Western, B. (2006). Punishment and inequality in America. New York, NY: Russell Sage Foundation.Find this resource:

References

Albonetti, C. A. (1986). Criminality, prosecutorial screening, and uncertainty: Toward a theory of discretionary decision making in felony case processing. Criminology, 24(4), 623–644.Find this resource:

Albonetti, C. A. (1991). An integration of theories to explain judicial discretion. Social problems, 38(2), 247-266.Find this resource:

Albonetti, C., & Hepburn, J. (1996). Prosecutorial discretion to defer criminalization: The effects of defendant’s ascribed and achieved status characteristics. Journal of Quantitative Criminology, 12(1), 63–81.Find this resource:

Alexander, M. (2012). The new Jim Crow: Mass incarceration in the age of colorblindness. New York, NY: The New Press.Find this resource:

Baumer, E. P. (2013). Reassessing and redirecting research on race and sentencing. Justice Quarterly, 30(2), 231–261.Find this resource:

Beckett, K. (1997). Making crime pay: Law and order in contemporary American politics. Oxford, U.K.: Oxford University Press.Find this resource:

Beckett, K., & Murakawa, N. (2012). Mapping the shadow carceral state: Toward an institutionally capacious approach to punishment. Theoretical Criminology, 16(2), 221–244.Find this resource:

Beckett, K., Nyrop, K., Pfingst, L., & Bowen, M. (2005). Drug use, drug possession arrests, and the question of race: Lessons from Seattle. Social Problems, 52(3), 419–441.Find this resource:

Beckett, K., & Sasson, T. (2004). The Politics of injustice: Crime and punishment in America. Thousand Oaks: SAGE.Find this resource:

Beckett, K., & Western, B. (2001). Governing social marginality: Welfare, incarceration, and the transformation of state policy. Punishment & Society, 3(1), 43–59.Find this resource:

Berdejó, C. (2018). Criminalizing race: Racial disparities in Plea-bargaining. Boston College Law Review, 59(4), 1187–1249.Find this resource:

Bonilla-Silva, E. (2006). Racism without racists: Color-blind racism and the persistence of racial inequality in the United States. Lanham, MD: Rowman & Littlefield.Find this resource:

Bridges, G., Crutchfield, R., Simpson, E. (1987). Crime, Social Structure and Criminal Punishment: White and Nonwhite Rates of Imprisonment. Social Problems, 34, 345–361.Find this resource:

Britt, C. L. (2000). Social context and racial disparities in punishment decisions. Justice Quarterly, 17(4), 707–732.Find this resource:

Clear, T. R. (2007). Imprisoning communities : How mass incarceration makes disadvantaged neighborhoods worse. Oxford, U.K.: Oxford University Press.Find this resource:

Crenshaw, K. W. (2011). From private violence to mass incarceration: Thinking intersectionally about women, race, and social control. UCLA Law Review, 59, 1418–1473.Find this resource:

Dannefur, D., & Schutt, R. K. (1982). Race and juvenile justice processing in court and police agencies. American Journal of Sociology, 87(5), 1113–1132.Find this resource:

Desmond, M. (2016). Evicted: Poverty and profit in the American city. Crown/Archetype.Find this resource:

DiPrete, T. A. & Eirich, G. M. (2006). Cumulative advantage as a mechanism for inequality: A review of theoretical and empirical developments. Annual Review of Sociology, 32, 271–297.Find this resource:

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Engen, R. L., & Gainey, R. R. (2000). Modeling the effects of legally relevant and extralegal factors under sentencing guidelines: The rules have changed. Criminology, 38(4), 1207–1230.Find this resource:

Engen, R., Steen, S., & Bridges, G. (2002). Racial Disparities in the Punishment of Youth: A Theoretical and Empirical Assessment of the Literature. Social Problems, 49(2), 194–220Find this resource:

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Feldmeyer, B., & Ulmer, J. T. (2011). Racial/Ethnic Threat and Federal Sentencing. Journal of Research in Crime and Delinquency, 48(2), 238–270Find this resource:

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Franklin, T. W. (2018). The state of race and punishment in America: Is justice really blind? Journal of Criminal Justice, 59, 18–28.Find this resource:

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Gottschalk, M. (2016). Caught: The prison state and the lockdown of American politics. Princeton, NJ: Princeton University Press.Find this resource:

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Hagan, J. (1975). The Social and Legal Construction of Criminal Justice: A Study of the Pre-Sentencing Process. Social Problems, 22(5), 620–637.Find this resource:

Hagan, J., & Peterson, R. D. (1995). Crime and inequality. Stanford, CA: Stanford University Press.Find this resource:

Hagan, J., & Foster, H. (2006). Profiles of Punishment and privilege: Secret and disputed deviance during the racialized transition to American adulthood. Crime, Law and Social Change, 46(1–2), 65–85.Find this resource:

Hall, A. V., Hall, E. V., & Perry, J. L. (2016). Black and blue: Exploring racial bias and law enforcement in the killings of unarmed black male civilians. American Psychologist, 71(3), 175–186.Find this resource:

Haney López, I. (2004). Racism on trial: The Chicano fight for justice (8.2.2004 edition). Cambridge, MA: Belknap Press.Find this resource:

Haney Lopez, I. (2006). White by law: The legal construction of race. New York, NY: New York University Press.Find this resource:

Harcourt, B. E. (2008). Against prediction: Profiling, policing, and punishing in an actuarial age. Chicago, IL: University of Chicago Press.Find this resource:

Kautt, P. M. (2002) Location, location, location: Interdistrict and intercircuit variation in sentencing outcomes for federal drug-trafficking offenses. Justice Quarterly, 19(4), 633–671.Find this resource:

Kupchik, A. (2010). Homeroom security: School discipline in an age of fear. New York, NY: New York University Press.Find this resource:

Johnson, B. (2006). The multilevel context of criminal sentencing: Integrating Judge- and county-level influences. Criminology, 44(2), 259–298.Find this resource:

Johnson, B. D., King, R. D., & Spohn, C. (2016). Sociolegal approaches to the study of guilty pleas and prosecution. Annual Review of Law and Social Science, 12(1), 479–495.Find this resource:

Lara-Millán, A., & Cleve, N. G. V. (2017). Interorganizational utility of welfare stigma in the criminal justice system. Criminology, 55(1), 59–84.Find this resource:

Lynch, M. (2016). Hard Bargains: The Coercive power of drug laws in Federal Court. New York, NY: Russell Sage Foundation.Find this resource:

Lynch, M., & Omori, M. (2018). Crack as proxy: Aggressive federal drug prosecutions and the production of black–white racial inequality. Law & Society Review, 52(3), 773–809.Find this resource:

Massey, D. (1990). American Apartheid: Segregation and the Making of the Underclass. American Journal of Sociology, 96(2), 329–357.Find this resource:

Massey, D. S. (2007). Categorically unequal: The American stratification system. New York, NY: Russell Sage Foundation.Find this resource:

McKim, A. (2017). Addicted to rehab: Race, gender, and drugs in the era of mass incarceration. New Burnswick, NJ: Rutgers University Press.Find this resource:

Meares, T. L., & Kahan, D. M. (1998). Law and (norms of) order in the inner city. Law & Society Review, 32(4), 805–838.Find this resource:

Menefee, M. R. (2018). The role of bail and pretrial detention in the reproduction of racial inequalities. Sociology Compass, 12, e12576.Find this resource:

Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21(4), 439–466.Find this resource:

Mitchell, O. (2018). The continuing evolution of race and sentencing research and reviews of this research. Journal of Criminal Justice, 59, 29–31.Find this resource:

Morris, M. (2016). Pushout: The criminalization of black girls in schools. New York, NY: The New Press.Find this resource:

Murakawa, N., & Beckett, K. (2010). The penology of racial innocence: The erasure of racism in the study and practice of punishment. Law & Society Review, 44, 695–730.Find this resource:

Owens, E., Kerrison, E., Da Silveira, B. S. (2017). Examining Racial Disparities in Criminal Case Outcomes among Indigent Defendants in San Francisco. Quattrone Center for the Fair Administration of Jutice and Penn Law.Find this resource:

Pager, D. (2008). Marked: Race, crime, and finding work in an era of mass incarceration. Chicago, IL: University of Chicago Press.Find this resource:

Peterson, R. D., & Krivo, L. J. (2010). Divergent social worlds: Neighborhood crime and the racial-spatial divide. New York, NY: Russell Sage Foundation.Find this resource:

Pfaff, J. (2017). Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York, NY: Hachette Book Group.Find this resource:

Provine, D. M. (2011). Race and inequality in the war on drugs. Annual Review of Law and Social Science, 7(1), 41–60.Find this resource:

Rehavi, M. M., & Starr, S. B. (2012) Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences. U of Michigan Law & Econ, Empirical Legal Studies Center Paper, No. 12-002.Find this resource:

Reinarman, C., & Levine, H. G. (1997). Crack in America: Demon drugs and social justice. Berkeley, CA: University of California Press.Find this resource:

Richie, B. E. (2002). The social impact of mass incarceration on women. In M. Mauer & M. Chesney-Lind (Eds.), Invisible Punishment: The Collateral Consequences of Mass Imprisonment (pp. 136–149). New York, NY: The New Press.Find this resource:

Rios, V. M. (2011). Punished: Policing the lives of black and Latino boys. New York, NY: New York University Press.Find this resource:

Roberts, D. E. (2003). The social and moral cost of mass incarceration in African American communities. Stanford Law Review, 56, 1271–1306.Find this resource:

Rodriguez, N. (2010). The cumulative effect of race and ethnicity in juvenile court outcomes and why preadjudication detention matters. Journal of Research in Crime and Delinquency, 47(3), 391–413.Find this resource:

Rose, D. R., & Clear, T. R. (1998). Incarceration, social capital, and crime: Implications for social disorganization theory. Criminology, 36, 441–480.Find this resource:

Sampson, R. J., Raudenbush, S. W., & Earls, F. (1997). Neighborhoods and violent crime: A multilevel study of collective efficacy. Science, 277(5328), 918–924.Find this resource:

Schlesinger, T. (2013). Racial disparities in pretrial diversion: An analysis of outcomes among men charged with felonies and processed in state courts. Race and Justice, 3(3), 210–238.Find this resource:

Schnittker, J., & John, A. (2007). Enduring stigma: The long-term effects of incarceration on health. Journal of Health and Social Behavior, 48(2), 115–130.Find this resource:

Schoenfeld, H. (2010). Mass incarceration and the paradox of prison conditions litigation. Law & Society Review, 44, 731–768.Find this resource:

Schoenfeld, H. (2011). Putting politics in penal policy reform. Criminology & Public Policy, 10(3), 715–724.Find this resource:

Simon, J. (2007). Governing through crime: How the war on crime transformed American democracy and created a culture of fear. Oxford, England: Oxford University Press.Find this resource:

Spohn, C. (2000). Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process. Criminal Justice, 3, 75.Find this resource:

Spohn, C. (2014). Twentieth-century sentencing reform movement: Looking backward, moving forward. Criminology & Public Policy, 13(4), 535–545.Find this resource:

Spohn, C., Gruhl, J., & Welch, S. (1987). The impact of the ethnicity and gender of defendants of the decision to reject or dismiss felony charges. Criminology, 25(1), 175–192.Find this resource:

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Steffensmeier, D., & Demuth, S. (2006). Does Gender Modify the Effects of Race-Ethnicity On Criminal Sanctioning? Sentences for Male and Female White, Black, and Hispanic Defendants. Journal of Quantitative Criminology, 22, 241–261.Find this resource:

Steffensmeier, D., Ulmer, J., & Kramer, J. (1998). The interaction of race, gender, and age in criminal sentencing: The Punishment Cost of being young, black, and male. Criminology, 36, 763–798.Find this resource:

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Ulmer, J. (2012). Recent Developments and new Directions in Sentencing Research. Justice Quarterly, 29(1), 1–40.Find this resource:

Van Cleve, N. G., & Mayes, L. (2015). Criminal justice through “colorblind” lenses: A call to examine the mutual constitution of race and criminal justice. Law & Social Inquiry, 40(2), 406–432.Find this resource:

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