Sentencing

III. Research on Criminal Sentencing

The vast majority of social research on criminal sentencing revolves around issues of sentencing disparity, or differences in the criminal punishments given to different types of offenders. Of particular concern is unwarranted disparity, or sentencing differentials that result from consideration of factors other than those that are deemed legally relevant at sentencing. Whether or not sentencing disparity is warranted inherently involves a value judgment, but the majority of research in the area focuses on the influences of offender race, gender, class status, and mode of conviction in the sentencing process. It is important to note then that disparity does not necessarily equate with discrimination. Discrimination in sentencing involves sentencing disparities that arise out of the prejudicial use of unwarranted considerations in punishment.

A. Research on Sentencing Disparity

Since at least the 1930s, criminologists have been enamored with the study of racial and ethnic disparities in sentencing. A voluminous body of research has developed in this area, and although the collective findings remain somewhat equivocal, the weight of the evidence suggests that minority defendants are often disadvantaged at sentencing, at least for some decisions and in some contexts (Spohn, 2000; Zatz, 2000). Racial disparities appear to be greatest for black and Hispanic offenders who are young, male, and unemployed (Spohn & Holleran, 2000; Steffensmeier, Ulmer, & Kramer, 1998). Typically, these offenders are more likely to be sentenced to incarceration and less likely to receive sentences that deviate below the recommended ranges of sentencing guidelines. These disparities have been shown to be particularly pronounced for minorities convicted of drug offenses in the federal justice system (Steffensmeier & Demuth, 2000). They also characterize earlier decisions in the punishment process such as the determination of bail and pretrial release status (Demuth, 2003). Some evidence indicates that minority offenders are given higher bail amounts, which they are less able to pay, resulting in higher rates of detainment prior to trial. This fact is important because research shows that detainment is associated with greater severity in sentencing.

There is also evidence that the race of the victim influences sentencing, especially in combination with the race of the offender, and particularly for sexual assault and homicide cases. Several studies, for instance, demonstrate important racial disparities in the application of the death penalty, such that black offenders who target white victims are most likely to be sentenced to death (Baldus, Pulaski, & Woodworth, 1983). What this research suggests in sum, then, is that black and Hispanic offenders are often disadvantaged at sentencing, although racial disparity is not systemic. That is, it does not characterize every decision in every court, but rather isolated decisions for some minority offenders who commit particular offenses in certain contexts.

Although relatively less research examines the influence of gender, class, and mode of conviction on sentencing outcomes, conclusions regarding these factors are often less ambiguous. A number of studies investigate gender disparity in punishment and conclude that female offenders are treated with relative leniency at sentencing (Daly, 1995).While there are exceptions, most studies find that females are less likely to be incarcerated and that they are more likely to benefit from sentences that fall below the recommendations of sentencing guidelines. Some work also suggests that when incarcerated, they receive relatively shorter jail and prison terms compared to male offenders. Explanations for gender disparity in sentencing range from practical considerations of the differences in family roles, child rearing, and health care to arguments that male judges are likely to treat female offenders paternalistically or chivalrously. Relatively few studies actually investigate the intervening processes that account for leniency toward female offenders. Because male offenders are disproportionately involved in serious crime, judges may view them as more culpable or as greater risks for future offending.

Much less can be definitively concluded about social class in sentencing because offender socioeconomic status is typically unavailable or poorly measured (Zatz, 2000). This is an important limitation that characterizes the majority of research in this area. Some studies do find evidence that lower-class citizens are sentenced more harshly, but often these results are based on coarse proxies for socioeconomic status such as single indicators of education or employment status. It is also difficult to study these effects because offender samples often have limited variation on social class. Although sparse, this work suggests that class status is particularly likely to affect sentencing in conjunction with other factors such as the age, race, and gender of the offender. Future research is needed, however, before drawing more concrete conclusions regarding class disparities in sentencing.

Research on trial conviction is better developed and routinely finds that offenders who plead guilty receive more lenient sentences than those who exercise their right to trial. Trial conviction significantly increases the probability and length of incarceration, and it reduces the chances that an offender will receive a sentence that departs below the recommended punishment under sentencing guidelines. To some extent, though, this “trial penalty” is offset by the possibility of acquittal at trial. At least some offenders who go to trial are not convicted, so there is a tradeoff between the certainty of conviction that comes with pleading guilty and the reduced punishment that often accompanies it. For offenders who are convicted at trial, their sentences are routinely more severe than for similar offenders convicted through guilty pleas (LaFree, 1985).

Despite these generalizations, not all studies find significant offender disparities in sentencing. One explanation for this is that the subjective meaning and interpretation of offender characteristics may vary across different communities and courtroom social contexts. Although research in this area is still in its formative stages, preliminary evidence suggests that a number of sentencing considerations are conditioned by the larger social context of the sentencing court (Johnson 2005, 2006; Ulmer & Johnson, 2004). Factors such as the size and caseload of the court, the availability of local correctional resources, and the racial and ethnic composition of the community have been shown to influence individual sentencing decisions. Often, these context effects are subtle and indirect, influencing sentencing decisions in combination with specific offender and offense characteristics. Although on the surface, jurisdictional variations in sentencing suggest unwarranted sentencing disparity, it may be that regional variations in caseloads, public values and attitudes toward crime, or other locally determined considerations justify different punishment patterns across courts. Elected judges, for instance, may be sensitive to local punishment standards that are unique to their community environment. It is therefore possible that sentencing judges arrive at different punishments in different communities for valid reasons, although little research currently examines this type of explanation for interjurisdictional variations in sentencing.

IV. The Future of Sentencing Research

Despite an abundance of studies examining unwarranted disparities in sentencing, a number of questions remain unanswered. Very little is known about racial and ethnic groups other than those that are most sizeable, such as Asians and Native Americans, and almost no research examines important differences within racial and ethnic groups. Hispanic ethnicity, for example, encompasses a multitude of nationalities, each with its own unique cultural heritage, but little is known about differences in sentencing among these different groups. Adequate measures of socioeconomic status remain elusive as well. In part, these and similar limitations reflect the overreliance of sentencing research on official data sources (Wellford, 2007). The majority of modern studies of criminal sentencing have been limited to a handful of states where sentencing commissions collect and disseminate public data. Because these data are often limited in the details they provide, future work is needed that collects more detailed information on the full range of factors that collectively shape sentencing decisions across court contexts. These include information on victim characteristics like offender–victim relationship, offense details like weapon use, and additional offender information like substance abuse and family background histories.

In addition, research is needed that integrates the influence of additional court actors in the sentencing process along with additional decision-making points in the justice system. For instance, very little empirical research focuses on the role of the prosecutor in sentencing, despite qualitative and anecdotal evidence indicating this person’s importance. The analogy is sometimes given that discretion in the criminal justice system is like a balloon—if you squeeze one part of the balloon, it expands in another area. However, despite widespread acknowledgment that modern sentencing reforms “squeeze” judicial sentencing discretion, very little research systematically examines its expansion among other court actors. Studies that do investigate this issue have found only mixed and limited support for it, but these types of investigations are all too rare (Miethe, 1987). To adequately assess the role that unwarranted disparity plays in the punishment process, it is necessary to begin to examine the cumulative effects of race, ethnicity, gender, and other factors from the time an offender is arrested until he or she is rereleased into the community.

A broader approach is also necessary in terms of the larger societal consequences of sentencing decisions. How, for instance, might disparities in sentencing contribute to inequities in other social institutions, such as schooling, housing, or employment? Research on sentencing inequality also demands a larger comparative perspective. The vast majority of research on the topic has been conducted in only a handful of U.S. states. This dramatically limits the ability to generalize research findings, and it also precludes adequate tests of the global applicability of broad theoretical perspectives on sentencing and sentencing disparity.

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