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Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts*
Abstract
This paper examines 77,236 federal offenders sentenced under the Sentencing Reform Act of 1984 and concludes the following. First, after controlling for extensive criminological, demographic, and socioeconomic variables, I found that blacks, males, and offenders with low levels of education and income receive substantially longer sentences. Second, disparities are primarily generated by departures from the guidelines, rather than differential sentencing within the guidelines. Departures produce about 55 percent of the black-white difference and 70 percent of the male-female difference. Third, although black-white disparities occur across offenses, the largest differences are for drug trafficking. The Hispanic-white disparity is generated primarily by those convicted of drug trafficking and firearm possession/trafficking. Last, blacks and males are also less likely to get no prison term when that option is available; less likely to receive downward departures; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites and females. Copyright 2001 by the University of Chicago.
... This further shows that race plays a role in the sentencing of people in the criminal justice system. Mustard (2001) showed that the number of African Americans detained in state prisons is five times more than their White counterparts. Worse enough is that this number stands at one to ten in states like Iowa, Minnesota, and Vermont (Mustard, 2001). ...
... Mustard (2001) showed that the number of African Americans detained in state prisons is five times more than their White counterparts. Worse enough is that this number stands at one to ten in states like Iowa, Minnesota, and Vermont (Mustard, 2001). The numbers only reveal that the dynamics of race as a factor in sentencing has become quite a surreptitious issue today (Omi & Winant, 2014). ...
... The numbers only reveal that the dynamics of race as a factor in sentencing has become quite a surreptitious issue today (Omi & Winant, 2014). Mustard (2001) further reveals that in some eleven states in the country, one out of twenty prisons happens to be Black. The vast numbers are a concern and evidence that race is indeed a factor in sentencing for various crimes. ...
... Data about the individual's criminal record determines the offense level and criminal history scores, which indicates the sentencing range for each offense. If there are extenuating circumstances, the judge can depart from the Guidelines and issue a sentence that exceeds the maximum or is less than a minimum sentence (Mustard, 2001). When a departure is made, the reasons for it must be stated by the presiding judge. ...
... The Commission's data contains socioeconomic and demographic descriptions o f the offenders. Racial, ethnic, gender, and citizenship disparity are also prevalent within the Guidelines (Mustard, 2001). Disparity is defined by comparing two offenders who are in the same district court and committed the same offense. ...
... Evidence from the U.S. Federal Courts," David B. Mustard (2001), a professor of Law and Economics at the University of Georgia, asserts that blacks, and Hispanics, and others received 5.5, 4.5, and 2.3 months longer in sentencing under the Guidelines than whites. He also asserts that females received 5.5 fewer months than males. ...
This is a qualitiative study that examines the assertions made by other legal scholars that minority based sentencing disparity, as it relates to the U.S. Sentencing Guidelines, is due to intentional racial, ethnic, and gender discrimination. Professor Celesta A. Albonetti (1997) makes the unfounded assertion that minority based sentencing disparity, as it relates to the Guidelines, is due to intentional discrimination by federal judges and prosecutors. When examining minority based sentencing disparity under the U.S. Sentencing Guidelines, black males are incarcerated longer than other minority groups for violations of federal cocaine statutes. Black males are also incarcerated longer than nonminority offenders for violations of federal cocaine statutes. Black males are also incarcerated longer than nonminority offenders for violations of federal cocaine statutes. Minority based sentencing disparity does exist, but is not due to intentional discrimination. Minority based sentencing disparity is the product of past employment discrimination in the United States and legal, structural aspects of federal statutes and their interaction with the Guidelines. The primary cause for large numbers of black males being incarcerated more often and for longer periods of time is due to the fact that certain federal crimes that are committed disproportionately by white males. Crack cocaine violations are committed disproportionately by black males due to discrimination and economic deprivation. The false perception of intentional racial and ethnic sentencing disparity erroneously attributed to the Guidelines is due to the U.S. Congress and its willingness to place more emphasis upon the possession, use, and distribution of crack cocaine, the historicalexistence of deeply rooted racial, ethnic, and economic discrimination embedded in American culture, and the failure of the U.S. Sentencing Commission to formulate a sound and well balanced sentencing rationale.
This study examines the controversy surrounding the U.S. Congress and the negative impace of mandatory minimum sentences on the Guidelines and minority offenders. The Guidelines transition from legally binding administrative law to vague advisory provisions is also considered. In addition to a consideration of negative effects of mandatory minimum sentences on the Guidelines and minority offenders, the Commission's inability ot justify a modified just dessert sentencing rationale with prolonged periods of offender incapicitation is also scrutinized. In order to dispel the myth of intentional discrimination presented by Albonetti, and to urther support the argument for the legal, structual causes of discrimination, and experiement by David B. Mustard (2001), a professor of Law and Economics at the University of Georgia, adn an experiment conducted by Professors Rodney L. Engen, a professor at North Carolina State University, and Rodney R. Gainey, a professor at Old Mominion University are compared. Mustard applies standard regression analysis to the Guidelines determinate sentencing grid and comes to the conclusion that the greatest sentencing disparity exists between black male and white male offenders who are isolated in a one-on-one basis in the same district court with similar characteristics.
Engen and Gainey (2000) assert that standard linear regression analysis is unsuited for the determinate sentencing grid because it assumes a linear, additive relationship between crime seriousness and criminal history. In order to properly control for interaction between tese tow legal factors, Engen and Gainey assert that researchers should be aware that standard linear regression models erroneously assume a uniform change in the dependent variable with each unit increase of the independent variable. Mustard's standard regression model does assume a uniform change in the dependent variable with each unit increase of the independent variable. The Guidelines typically increase the severity of the variables radically for more serious offenses, including offenders with drug and weapons related criminal histories. Standard regression experiments in the field of criminal law and determinate sentencingthat fail to control for interaction between legal factors will result in distorted extralegal factors. Norval Morris (1990), a professor at the University of Chicago School of Law, asserts that the answer to past discrimination against minorities and the legal, structural problems that plague the Guidelines is to implement intermediate sanctions in the form of compulsory, community based drug rehabilitation programs.
... Research has examined and detected bias related to social status in various stages of the criminal justice process, including policing, prosecution, and sentencing (Abrams, Bertrand, and Mullainathan 2012;Bushway and Piehl 2001;Mustard 2001;Starr 2015;Steffensmeier, Ulmer, and Kramer 1998;Ulmer, Kurlychek, and Kramer 2007;Yang 2015). Such research suggests that extra-legal factors (such as race, age, and gender) have a significant bearing on the kind and severity of punishment one experiences in the criminal justice system. ...
... Research on inequalities in the administration of justice has examined discretion and disparate treatment at key points in the criminal justice process, including policing, prosecution, and sentencing (Abrams et al. 2012;Bushway and Piehl 2001;Kutateladze et al. 2014;Mustard 2001;Selbst 2017;Starr 2015;Steffensmeier and Demuth 2000;Steffensmeier et al. 1998;Stolzenberg, D'Alessio, and Eitle 2013;Ulmer et al. 2007;Yang 2015). This line of research focuses on the decision-making of criminal justice actors and its susceptibility to bias. ...
... Finally, research on cumulative disadvantage suggests that race differences in punishment decisions may be modest or nonsignificant at later stages of the criminal justice system (due to populations being more selective at each successive stage), including in-prison sanctions. However, minorities still face disproportionate exposure given their higher rates of imprisonment (Alexander 2010), longer prison sentences (Bushway and Piehl 2001;Mustard 2001;Yang 2015), and greater risk of having infractions detected and reported (Poole and Regoli 1980). ...
Dramatic growth of the prison population in the United States over the last four decades accompanies significant qualitative transformations in the conditions of imprisonment. At this historic moment, some of the most extreme forms of punishment are not only tolerated but embraced – often without critical considerations of their effectiveness, nor their potential collateral consequences. Indeed, prisons have become focused less on rehabilitation and more on punishment and containment. The startling, expanded use of solitary confinement exemplifies this trend toward more punitive penal practices. Despite widespread use, the determinants and consequences of solitary confinement have not been thoroughly investigated. This study leverages rich administrative data on individuals who were sentenced to prison and observed over time to investigate: the risk factors of exposure to solitary confinement, its effect on future criminal justice contact, and long-term consequences on mortality after release from prison. Analyses offer several key findings: First, net of key factors predictive of behavioral risk, solitary confinement disproportionately concentrates some of the most vulnerable and disadvantaged inmates, including individuals with mental illness history. This underscores the persistence of disparate treatment in the workings of the criminal justice system. Second, solitary confinement significantly increases the likelihood of reoffending, including violent crimes. Because the majority of prisoners are eventually released back into the community, high rates of reoffending suggest that in the long-run solitary confinement threatens public safety. Third, any exposure to solitary confinement significantly elevates the risk of mortality after release, and this is driven in large by premature injury-related mortality, including homicides, suicides, and transportation accidents, which are all preventable causes of death. Together, this research contributes to existing literature by identifying solitary confinement as a particularly consequential experience that intensifies the impacts of incarceration and that has significant implications for understanding social inequality, public safety, and public health.
... Supporting this proposition, Spohn (1999) found that among drug defendants, only women without children were granted leniency. In another study, Mustard (2001) found that parental status was linked to shorter sentences for bank robbery, firearm, and fraud offenses but not immigration, larceny, and drug offenses. ...
... These contradictions in prior research are important to unpack. We choose firearm offenses due to the "masculine" nature of the offense (see Mustard, 2001;Steffensmeier et al., 1993) and the evil woman hypothesis suggestion that females will be sentenced either (a) similar to males or (b) harsher than males for masculine crimes. Last, we choose economic offenses due to the past conceptualization of larceny and fraud offenses as stereotypically feminine and the lack of immediate threat to publicly safety commonly linked to economic offenses (Mustard, 2001). ...
... We choose firearm offenses due to the "masculine" nature of the offense (see Mustard, 2001;Steffensmeier et al., 1993) and the evil woman hypothesis suggestion that females will be sentenced either (a) similar to males or (b) harsher than males for masculine crimes. Last, we choose economic offenses due to the past conceptualization of larceny and fraud offenses as stereotypically feminine and the lack of immediate threat to publicly safety commonly linked to economic offenses (Mustard, 2001). ...
Prior sentencing research has identified leniency afforded to females (compared with males) and those with familial responsibility (compared with those without). Studies have also found that the effect of defendant gender, familial responsibility, and their intersections depend on the type of offense examined. What remains unclear is the situations in which these factors matter more or less. The purpose of this study is to disaggregate extralegal effects by understanding how gender, familial responsibility, and their intersections influence federal sentencing outcomes across various offense types. Findings from this study suggest that gender, familial responsibility, and their combinations exert different influences depending on the (a) dependent variable and (b) offense type examined.
... longer incarceration terms than similarly situated White defendants (see the reviews by Baumer, 2013;Franklin, 2018;Mitchell, 2005;Spohn, 2000;Ulmer, 2012;Zatz, 2000). Some studies have revealed that these and other extralegal disparities in punishment have remained present even following the implementation of sentencing guidelines systems and other reforms intended to restrict judicial discretion (e.g., Griffin & Wooldredge, 2006;Mustard, 2001;Wang et al., 2013). Furthermore, recent research has emphasized that sentencing is merely one stage in a process of "cumulative disadvantage" in which offenders' race or Hispanic ethnicity might inform the decision-making of police, prosecutors, and other justice system actors (Kutateladze et al., 2014;Wooldredge et al., 2015). ...
... 230). In particular, despite much research on the issue (e.g., Demuth & Steffensmeier, 2004;Johnson & Betsinger, 2009;Steen et al., 2005;Steffensmeier & Demuth, 2000, 2001Warren et al., 2012), questions remain regarding how primary offense type might condition the effects of race/ethnicity in sentencing. ...
... Steffensmeier & Demuth, 2001). Mustard (2001) likewise observed especially prominent Black-White and Hispanic-White disparities in federal sentencing among drug trafficking cases. Johnson and Betsinger (2009) reported findings similar to these studies, and they also found that Asian offenders were advantaged relative to others in the sentencing of fraud cases. ...
Within the large body of literature on racial/ethnic disparities in criminal sentencing, some research has demonstrated that these relationships are conditional upon various legally relevant case characteristics, including the type of offense for which the defendants are sentenced. To date, however, few studies have explored the potential moderating effects of different violent crimes. Using data from Florida (N = 186,885), the findings from these analyses indicate that Black-White sentencing disparities are particularly pronounced for manslaughter, robbery/carjacking, arson, and resisting arrest with violence. While Hispanic ethnicity exerts limited effects on sentencing outcomes generally, Hispanics are particularly disadvantaged in manslaughter cases. Relative to minority defendants, White offenders receive harsher sentences for sexual battery, other sex offenses, and abuse of children.
... The history of blacks in America is fraught with disparate social and legal oppression. This notion has been explored by several studies, within and outside of criminology, seeking to determine if the application of the law is colorblind (Coviello & Persico, 2013;Epp, Maynard-Moody, & Haider-Markel, 2014;Franklin, 2018) and if social conditions vary by race (Holmes, 2000;Mustard, 2001;Sampson, Raudenbush, & Earls, 1997). Historically, public perceptions of the criminal justice system have always been racially divided. ...
... There is a research consensus that racial discrimination is reflected in most every aspect of the American criminal justice system. For instance, arrest/stop-and-frisk rates (Gau & Brunson, 2010;Mauer, 2006) sentencing outcomes (e.g., Curry & Corral-Camacho, 2008;Mustard, 2001;Spohn & Holleran, 2000) the juvenile justice system (e.g., Morrow, Dario, & Rodriguez, 2014), incarceration rates (Steffensmeier, Ulmer, & Kramer, 1998),are all areas of the criminal justice system that disproportionately affect African Americans, more so than any other racial group. Several of these other forms of legal suppression are examined in the following sections. ...
... Therefore, they are punished more severely than their white counterparts (Curry & Corral-Camacho, 2008). Mustard (2001) examined 77,236 sentence outcomes for federal offenders sentenced under the Sentencing Reform Act of 1984. The purpose of the act was to provide guidelines to ensure the appropriate sentences for federal criminal offenders, ensure sentence uniformity, and minimize the sentence disparity being imposed by different federal courts for similar crimes. ...
It is an axiom among both researchers and the public that American perceptions of the police are racially divided. Previous studies have traditionally focused on inter-racial perceptions, and have found support for social variables (e.g. education) and legal variables (e.g. prior arrest). The current study seeks to determine if legal oppression or social oppression are better predictors of negative attitudes toward the police among a sample of black university students. Ordinary least squares regression seeks determine which set of factors better predict police perceptions. This intra-racial examination allows future research to parse nuances among police perceptions in the black community. The implications of these results and future directions are discussed, in particular for the continued development of a black criminology (Unnever, Gabbidon, & Chouhy, 2019).
... This is a particularly important point when there is mounting evidence of racial bias in everyday judgments of various types (Pager, Bonikowski, & Western, 2009;Pletcher, Kertesz, Kohn, & Gonzales, 2008), whereby African-Americans are judged, for example, as less trustworthy (Stanley, Sokol-Hessner, Banaji, & Phelps, 2011) or more dangerous (Spector, 2001). Furthermore, there is evidence for racial bias in legal decisions specifically (Demuth, 2003;Hart, 2017;Hetey & Eberhardt, 2014;Johnson & Betsinger, 2009;Mitchell, Haw, Pfeifer, & Meissner, 2005;Mustard, 2001;Rachlinski, Johnson, Wistrich, & Guthrie, 2008;Sweeney & Haney, 1992). We might thus expect that the defendant's race may be subject to bias, and may moderate the potential mitigating effect of neuroscientific evidence (e.g., such that African-American defendants will not be spared, even in cases in which white defendants will be). ...
... We might thus expect that the defendant's race may be subject to bias, and may moderate the potential mitigating effect of neuroscientific evidence (e.g., such that African-American defendants will not be spared, even in cases in which white defendants will be). Other defendant-specific factors including age, gender, socioeconomic status, and physical attractiveness may also play roles in determining neuroscience's efficacy in criminal trials (e.g., Ahola, Christianson, & Hellström, 2009;Doerner & Demuth, 2010;Freeman, 2006;Mustard, 2001;Walker & Woody, 2011). ...
... As noted above, we strongly believe that additional research into moderating factors and cognitive mediators would benefit this field significantly. Specifically, we hope that moderators including the defendant's race and gender will be tested as research has shown them to have an effect on legal judgments (e.g., Ahola et al., 2009;Demuth, 2003;Doerner & Demuth, 2010;Freeman, 2006;Johnson & Betsinger, 2009;Mitchell et al., 2005;Mustard, 2001;Rachlinski et al., 2008;Sweeney & Haney, 1992;Walker & Woody, 2011). In addition, we hope that future studies will probe juror cognitions about the evidence and about the experts delivering the evidence (i.e., whether they are persuasive, satisfying, and so on). ...
The use of neuroscience in the courtroom can be traced back to the early twentieth century. However, the use of neuroscientific evidence in criminal proceedings has increased significantly over the last two decades. This rapid increase has raised questions, among the media as well as the legal and scientific communities, regarding the effects that such evidence could have on legal decision makers. In this article, we first outline the history of neuroscientific evidence in courtrooms and then we provide a review of recent research investigating the effects of neuroscientific evidence on decision-making broadly, and on legal decisions specifically. In the latter case, we review studies that measure the effect of neuroscientific evidence (both imaging and nonimaging) on verdicts, sentencing recommendations, and beliefs of mock jurors and judges presented with a criminal case. Overall, the reviewed studies suggest mitigating effects of neuroscientific evidence on some legal decisions (e.g., the death penalty). Furthermore, factors such as mental disorder diagnoses and perceived dangerousness might moderate the mitigating effect of such evidence. Importantly, neuroscientific evidence that includes images of the brain does not appear to have an especially persuasive effect (compared with other neuroscientific evidence that does not include an image). Future directions for research are discussed, with a specific call for studies that vary defendant characteristics, the nature of the crime, and a juror’s perception of the defendant, in order to better understand the roles of moderating factors and cognitive mediators of persuasion.
... The goal of the Guidelines was to reduce disparity to assure consistency and fairness of sentences. The Guidelines narrowed the disparity of sentences in federal courts for those displaying similar criminal conduct (Albonetti, 1997;Doerner, 2015;Farrell et al., 2010;Martin Stacey & Spohn, 2006;Mustard, 2001). ...
... Many studies have analyzed race as a variable of interest-including studies on criminal justice processes. Research findings have been mixed on race and sentencing outcomes with most studies finding that Black and Hispanic individuals are more likely to be sentenced to incarceration than Whites (Doerner, 2015;Mustard, 2001) whereas others have shown that Black offenders receive less severe sentences than Whites (Bernstein et al., 1977). Zatz (1984) found racial disparity with more severe punishments for Chicanos than for their White counterparts while Albonetti (1997) found ethnicity to have a direct effect on sentencing outcomes. ...
Over the past several decades, sentencing reforms have claimed to establish guidelines to reduce sentencing disparity; yet, recent studies continue to find discrepancies in sentencing outcomes. The current study explored individual factors using data from the U.S. Sentencing Commission (FY 2010) to further analyze these variables through the lens of cumulative disadvantage theory. The factors included the influence of age, race, sex (gender), offense type, instant offense score, and overall criminal history score on sentencing length (in months). Hierarchical regression revealed being identified as Black, committing fraud/white collar crime or a property offense, and overall criminal history were able to significantly predict sentence length—findings consistent with cumulative disadvantage theory. Contrary to previous studies, the current results suggest that age may have a positive relationship with sentencing length. The findings are not without limitations but do provide a modern-day picture of continued marginalization of certain defendants within the criminal justice system.
... Nevertheless, there were pushes from both political parties to make drug laws more punitive. Changes in the laws led to higher arrest and incarceration rates than in prior decades, particularly for young Black men (Mustard 2001). Between 1980 and 1989, the ratio of prison commitments to adult arrests increased from 196 per 1000 to 332 per 1000 (Cohen 1991). ...
... 66). Furthermore, Mustard (2001) finds that the largest federal sentencing disparities between Black individuals and White individuals occurred for drug trafficking offenses after controlling for past criminal history. Ironically, much of this disparity was driven by departures from federal guidelines whereby Black men were more likely than White men with similar criminal histories to receive punishments that were harsher than mandated federal penalties. ...
This paper explores one reason for the educational gaps experienced by Black men. Using variation in state marijuana possession and distribution laws, this paper examines whether the Anti-Drug Abuse Act of 1986, which increased the disproportionate incarceration of Black males, led to differences in college enrollment rates. The results suggest that Black males had a 2.2 percentage point decrease in the relative probability of college enrollment after the passage of the Anti-Drug Abuse Act of 1986. There is some evidence that drug arrests, particularly around crack cocaine but not marijuana, led to this decrease in the probability of enrollment.
... One noteworthy factor that has gone overlooked is the role of a defendant's financial support for family members in the sentencing process. Most research about sentencing outcomes in federal proceedings often includes a measure of providing financial support for dependents as a control variable (Feldmeyer & Ulmer, 2011;Freeborn & Hartmann, 2010;Johnson & Betsinger, 2009;Kim et al., 2018;Mustard, 2001;Tillyer et al., 2015;Ulmer et al., 2010;Ulmer & Johnson, 2017). Yet, there has been little research about whether support for financial dependents intersects with the sex or race/ethnicity of a defendant to affect criminal punishment (Bickle & Peterson, 1991;Farrell, 2004;Ortiz & Spohn, 2014;Stacey & Spohn, 2006). ...
... At the federal level, research often uses a measure of support for dependents as a control variable in multivariate models, although little theoretical consideration has been given to how this measure may influence sentencing outcomes (Feldmeyer & Ulmer, 2011;Freeborn & Hartmann, 2010;Kempf-Leonard & Sample, 2001;Kim et al., 2018;Mustard, 2001;Sorensen et al., 2014;Tillyer et al., 2015;Ulmer et al., 2010). However, a much smaller body of research has assessed whether the impact of dependents on sentencing outcomes is moderated by a defendant's sex or race/ ethnicity. ...
A voluminous literature has detailed disparities in punishment related to extra-legal characteristics such as race, ethnicity, and sex. However, less research has investigated the specific contexts and conditions under which disparities in punishment emerge. Specifically, limited research to date has examined whether family characteristics influence sentencing both directly, and in interaction with race, ethnicity, and sex. The current study investigates this question using data on federal criminal sentences from the United States Sentencing Commission for fiscal years 2015-2017. Findings demonstrate that providing support for dependents generally has a positive association with the likelihood of being incarcerated and overall sentence length. Moreover, the positive association between support for dependents and punishment severity is concentrated among Black male and Hispanic male defendants. Among minority females and White defendants, having dependents has either a negative or null association with sentencing outcomes. Findings are discussed in the context of contemporary theoretical perspectives of punishment.
... While early sentencing research suffered from serious methodological problems (Kleck, 1981;Pratt, 1998;Wooldredge, 1998;Zatz, 1987), many more recent studies have continued to find at least some evidence of racial/ethnic disparities in federal and state sentencing outcomes (for reviews, see Baumer, 2013;Franklin, 2018;Mitchell, 2005;Ulmer, 2012;Spohn, 2000;Zatz, 2000). Indeed, across a variety of jurisdictional contexts and defendant populations and net of a wide range of legally relevant case characteristics, much research has reported that Black and Hispanic offenders receive more punitive sentences than Whites, including an increased likelihood of incarceration, longer jail and prison sentences, and upward departures from guideline recommendations (e.g., Albonetti, 1997;Bales & Piquero, 2012;Bushway & Piehl, 2001;Engen & Gainey, 2000;Everett & Wojtkiewicz, 2002;Johnson, 2003;Lehmann, 2020;Lehmann, Chiricos, & Bales, 2017;Steffensmeier & Demuth, 2000, 2001. Further, recent studies also have documented that "cumulative" effects of race/ethnicity are present at many stages of justice system processing, with sentencing representing only one such point of contact (Kutateladze et al., 2014;Stolzenberg et al., 2013;Wooldredge, Frank, Goulette, & Travis, 2015). ...
... Theoretically, this pattern of findings might suggest that court actors involved in sentencing can access gender-based stereotypes which characterize males as more dangerous, threatening, and inclined to reoffend than females, while female offenders may be considered "maternal, passive, weak, and dependent on men" (Franklin & Fearn, 2008, p. 281) and consequently are extended relative leniency in sentencing (Curry, Lee, & Rodriguez, 2004;Steffensmeier, Kramer, & Streifel, 1993). Extending this line of inquiry, some scholars have observed interactive relationships involving race/ethnicity and gender, finding that Black or Hispanic offenders are punished particularly harshly if they are male (e.g., Brennan & Spohn, 2009;Demuth & Steffensmeier, 2004;Kramer & Ulmer, 2002;Mustard, 2001;Ulmer et al., 2016). However, among females exclusively, some research reports similar racial/ethnic disparities as those seen in the sentencing of males (Brennan, 2006;Steffensmeier et al., 1993). ...
Corresponding with the theoretical expectations of the causal attributions and focal concerns perspectives, a vast body of sentencing literature has shown that Black and Hispanic defendants, and specifically young minority males, are more likely than other offenders to receive incarceration sentences, longer prison terms, and punitive departures from sentencing guideline recommendations. To date, however, minimal research has examined racial/ethnic, gender, and age disparities in split sentencing, that is, the discretionary assignment of a sentence to both prison and post-release community supervision in lieu of a full prison term. Using data on felony offenders sentenced to prison in Florida circuit courts (N = 193,513), these analyses show that Blacks and Hispanics, and particularly minority males, are less likely than Whites to receive a split sentence relative to a traditional prison sentence. Further, among female offenders only, racial/ethnic disparities are found to be weaker among young adults ages 18-20.
... Even further, few studies have compared gender-based sentencing disparities across offense types with mixed results (Farnworth & Teske, 1995;Koons-Witt, 2002;Mustard, 2001;Steffensmeier et al., 1993). This may be partially due to the emphasis on broad categories of crime (e.g., violent, property, and drug offenses) and more common, less severe crimes (Curry, Lee, & Rodriguez, 2004;Rodriguez et al., 2006) where differences in punishment by gender may be too small to detect. ...
... Empirical research on the role of gender in homicide sentencing decisions is rare, despite Daly's (1994) suggestion that gender disparity varies by crime type. Most work examining the legal and demographic factors on adjudication and sentencing disparity in general, for example, utilizes samples of defendants convicted for a variety of offenses, with crime severity statistically controlled by the inclusion of guideline scores or crime dummy variables (e.g., Albonetti, 1991;Curry et al., 2004;Mustard, 2001;Rodriguez et al., 2006;Steffensmeier et al., 1993Steffensmeier et al., , 1998. As Auerhahn (2007a) notes, homicides typically account for less than 2% of dispositions, limiting the generalizability of these studies to homicide sentencing decisions. ...
Research has shown that female offenders typically receive differential treatment in the criminal justice system in comparison to their male counterparts, even for extreme crimes like murder. This study compares the criminal sentences of 300 homicide offenders who killed at least two victims with a single co-offender (150 pairs) within their dyads using the actor–partner interdependence model (APIM) to determine if gender has an effect on leniency for even the most extreme crimes. Women were less likely to receive the harshest possible punishment, regardless of their partner’s gender. These findings provide support for the female leniency effect, suggesting that gender bias continues to influence sentencing decisions for homicide.
... As compared to similarly situated white men, Hispanic and Black men receive sentences that are, respectively, 5% and 20% longer on average (United States Sentencing Commission, 2018). While the disparity between Black and white defendants is particularly well-established (Feldmeyer and Ulmer, 2011;Mustard, 2001;Rachlinski and Wistrich, 2017), there is compelling evidence that Native and Hispanic menespecially young men-also receive harsher sentences (Doerner and Demuth, 2010;Franklin, 2013). ...
Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.
... Early guideline studies modeled legal considerations using, what we call, the additive approach. Regression models using the additive approach relied on two, independent, guideline-related measures: (1) the final 43-point offense level and (2) the 6-category criminal history scale (Everett and Wojtkiewicz 2002;Mustard 2001;Steffensmeier and Demuth 2000). Unsurprisingly, these early studies found that cases with higher offense levels (Albonetti 1997;Kautt 2002) and defendants with higher criminal history categories (Everett and Wojtkiewicz 2002;Kautt and Spohn 2002) received more punitive sentences. ...
Objectives
Since 2000, sentencing scholars have commonly controlled for racial/ethnic differences in underlying criminal conduct using presumptive sentence. In recent years, the presumptive sentence approach has been critiqued for (amongst other things) filtering out racial/ethnic disparities that accumulate pre-sentencing. To circumvent this concern, a small but growing body of literature has begun to employ the base offense level approach. The goal of this study is to analyze the implications of using the presumptive sentence versus base offense level approach to isolate racial/ethnic effects on federal sentencing outcomes.
Methods
Using data from the United States Sentencing Commission (2018–2020), this analysis tracks racial/ethnic differences throughout the pre-sentence process (base offense level to final offense level). Subsequently, we compare racial/ethnic effects obtained in a series of multi-level multivariate regression models using both the presumptive sentence and base offense level approaches.
Results
Findings indicate that the two approaches provide vastly different starting points for racial/ethnic differences in underlying criminal conduct and, therefore, different conclusions about how race/ethnicity matters in sentencing. Most notably, Hispanic defendants are advantaged relative to Whites when accounting for racial/ethnic differences in base offense level but disadvantaged relative to Whites when accounting for racial/ethnic differences in presumptive sentence.
Conclusions
Findings suggest that the presumptive sentence approach filters out important racial/ethnic differences in the pre-sentence process and that the two modeling approaches are not interchangeable. Results clearly indicate that modeling matters in sentencing research, and future research should pay close attention to their baselines for between-group differences in relevant conduct.
... This study documents disparities on the basis of nationality, ethnicity, and gender in court awards regarding the loss of future earnings in road accident cases in Israel. A large number of survey studies have documented differences in case outcomes by ethnicity, race, and gender (Fazio and Dunton 1997;Mustard 2001;Kang et al. 2012;Clemons 2014;Starr 2015;Avery and Cooper 2020). These studies demonstrate that racial and ethnic minorities fare worse in the justice system compared to their counterparts. ...
This study documents disparities on the basis of nationality, ethnicity, and gender in court awards regarding the loss of future earnings in road accident cases in Israel. We analyze a random selection of 236 court decisions in road accident cases that reached final decisions on their merits between 1978 and 2018 in which the nationality, ethnicity, and gender of victims were identifiable (via first and last names). We show that, although in Israel the reliance on sex- and race-based statistical data to calculate damages in tort cases is a prohibited practice, courts tend to reach lower estimates of future lost earnings for Mizrahi Jews, Arabs, and women than those of otherwise similarly situated Ashkenazi Jewish men. In the analyses, we hold injured persons’ earnings at the time of the accident and occupations constant. The effects we observe are significant in magnitude. The results of our study are particularly noteworthy given the fact that we document disparities that correspond with the already existing labor force inequalities and discrimination in hiring, salary, and promotion on the basis of nationality, ethnicity, and gender in Israel.
... In a study on Connecticut bail-setting rates, legal scholars Ian Ayres and Joel Waldfogel discovered that judges set bail for Black defendants at a 25 percent higher rate than for similarly situated White defendants [AW94]. In a judicial decision-making analysis through the Sentencing Reform Act of 1984, economist David Mustard found that judges sentenced Black defendants at a 12 percent longer length than those of comparable White defendants [Mus01]. Researchers Samuel Gross, Maurice Possley and Klara Stephens analyzed years of exoneration data, discovering that Black people constitute 47 percent of 1900 listed in the National Registry of Exonerations (as of October 2016) [Gro17]. ...
... One of the most prevalent findings in the sentencing literature is that gender is significantly related to sentence outcome [1,2]. This research has found that women are less likely to be incarcerated than men [2][3][4][5][6][7][8][9], and when incarcerated, typically receive sentences that are significantly shorter than their male counterparts [3][4][5][6][7][8][9][10][11][12][13][14]. Although gender disparity has received a great deal of attention at the individual level, prior research has not considered the possibility that the effects of gender could vary by community structure. ...
The extant research has failed to consider how community factors affect women’s sentences. Drawing from the focal concerns perspective and feminist perspectives, the current study examines the possible influence that variations in gender equality at the community level have on the individual treatment of women in the court system. Using data from the Pennsylvania Sentencing Commission and United States Census Bureau, the results indicate that women are less likely to be incarcerated than men. This disparity was found to be smaller in areas with larger disparities in men and women income levels. Gender was not found to be significant for the sentence length decision, but a significant interaction between rate of married women in a community and gender was found, with women receiving longer sentences in areas with higher rates of married women. Theoretical and future research implications are further discussed. One of the most prevalent findings in the sentencing literature is that gender is significantly related to sentence outcome [1,2]. This research has found that women are less likely to be incarcerated than men [2-9], and when incarcerated, typically receive sentences that are significantly shorter than their male counterparts [3-14]. Although gender disparity has received a great deal of attention at the individual level, prior research has not considered the possibility that the effects of gender could vary by community structure. Research on community structure and sentencing has largely focused on racial and ethnic disparities that exist across communities. Although the findings of these studies are mixed, these inquiries indicate that in communities where racial minorities appear to be a greater threat, defendants are sentenced more severely (e.g., [15-17]. Despite the fact that women continue to experience gender discrimination and continue to be under represented in positions of power and influence, for example, women consist of half the population but makeup less than 20 percent of Congress, the extant research has failed to consider how community factors affect women’s sentences. The current study examines community structure and the possible influence that variations in gender equality at the community level have on the individual treatment of women in the court system.
... 29,31 Racial disparities in length of sentencing are also well documented. 32 In short, structural racism in the design and operation of the criminal legal system itself contributes to the racial disparity in frequency and intensity of exposure to lifetime CLI and must be dismantled if we are to achieve equity in health and legal outcomes. ...
Background:
Exposure to the criminal legal system is associated with negative health outcomes and profound socioeconomic health disparities. The social adaptability index (SAI) is a validated composite scale based on five indicators of socioeconomic status; a higher score predicts better health outcomes. However, little is known about the relationship between cumulative social risk factors as measured by the SAI and lifetime criminal legal involvement (CLI).
Methods:
Using a cross-sectional, nationally representative sample of U.S. adults, we calculated SAI score by lifetime CLI status, and used logistic regression with predictive margins to calculate risk of lifetime CLI by SAI quartile adjusting for demographic and clinical covariates.
Results:
A total of 213,678 participants were included, among whom 16.8% reported lifetime CLI. Mean SAI score was lower among those with lifetime CLI compared with those without (7.77, 95% confidence interval [CI]: 7.72-7.83 vs. 8.52, 95% CI: 8.50-8.55). There was a linear association between SAI quartile and predicted probability of lifetime CLI: first quartile: 23.9% (95% CI: 23.0-24.7); second quartile: 19.2% (95% CI: 18.6-19.8); third quartile: 17.5% (95% CI: 16.9-18.1); and fourth quartile: 12.5% (95% CI: 12.1-13.0).
Conclusion:
The SAI score is associated in a reverse linear manner with lifetime risk of CLI, suggesting that to successfully improve health outcomes among those with CLI, interventions may need to target multiple SAI components simultaneously. Interventions that successfully position individuals to achieve higher social adaptability by targeting multiple factors may reduce the health-harming effects of exposure to the criminal legal system.
... The present findings show that being a woman significantly reduced the odds of a severe sentence (imprisonment) versus the odds of other sentences (probation, fine, service work, community service, or suspended sentence). These results support those of previous research that found female offenders less likely to receive imprisonment sentences compared with male offenders (Crocker et al., 2002;Flynn et al., 2011;Mustard, 2001). For example, Spohn (2002) reported that the probability of receiving a prison sentence was 2.5 times greater for male offenders than for female offenders after controlling for legally relevant factors. ...
The purpose was to examine gender differences (a) in the sentencing severity for parent-to-child violence (PCV); and (b) in severity of PCV patterns. We analyzed 99 verdict cases in Israel. Two models, a logistic regression model and a generalized ordered logistic regression model, were applied. The findings of the first model indicated that being a woman reduced the odds of imprisonment by .106; furthermore, being tried after implementation of the 2012 reform in judicial discretion in sentencing significantly increased the odds of sentence severity by 2.85. The second model indicated that women had lower odds of being involved in severe violent offenses against their minor children compared with men ( OR = 0.31). The findings highlight the source of sentencing differentials.
... Other studies have similarly looked at national data on federal criminal suspects to identify racial disparities (see, e.g., Mustard 2001;Shermer and Johnson 2010). This paper proceeds as follows. ...
I investigate how political incentives affect the behavior of district attorneys (DAs). I develop a theoretical model that predicts DAs will increase sentencing intensity in an election period compared to the period prior. To empirically test this prediction, I compile one of the most comprehensive datasets to date on the political careers of all district attorneys in office during the steepest rise in incarceration in U.S. history (roughly 1986-2006). Using quasi-experimental methods, I find causal evidence that being in a DA election year increases total admissions per capita and total months sentenced per capita. I estimate that the election year effects on admissions are akin to moving 0.85 standard deviations along the distribution of DA behavior within state (e.g., going from the 50th to 80th percentile in sentencing intensity). I find evidence that election effects are larger (1) when DA elections are contested, (2) in Republican counties, and (3) in the southern United States--all these factors are consistent with the perspective that election effects arise from political incentives influencing DAs. Further, I find that district attorney election effects decline over the period 1986-2006, in tandem with U.S. public opinion softening regarding criminal punishment. These findings suggest DA behavior may respond to voter preferences--in particular to public sentiment regarding the harshness of the court system.
... Teisėjai dažnai yra jautrūs socialinei šeimų suardymo kainai (Cho & Tasca, 2019;taip pat Pierce, 2013). Jie dažnai atsižvelgia į tai, kokias pasekmes moterų įkalinimas turės jų vaikams ir kokias išlaidas dėl to patirs valstybė (Blackwell, Holleran & Finn, 2008;Mustard, 2001). Jau atliktų tyrimų duomenimis, mažiau tikėtina, kad motinoms bus skiriama įkalinimo bausmė; joms paprastai skiriamas trumpesnis įkalinimo laikas lyginant su kaltinamosiomis, neturinčiomis vaikų Spohn & Beichner, 2000). ...
The book conceptualises gender-differentiated trends and practices of criminal
behaviour and punishment. It examines the general features of punishment and
the peculiarities and experiences of imprisoned women and women serving community sentences in Lithuania. We follow the assumption that when analysing women’s criminal behaviour and their personal experiences in the criminal justice system, using the interpretive frameworks applicable to men’s crimes is not sufficient. Therefore, a rich array of contemporary criminological and gender studies literature, interdisciplinary approaches and multifaceted empirical data are the basis of our analysis which trace women’s experiences from the imposition of punishment to serving community and imprisonment sentences.
... The most recent data suggest that despite this, most sentences still follow the guidelines somewhat, with 50% of all sentences falling within the recommended guideline range in the first half of fiscal year 2018 (Hofer, 2019) and many falling under the suggested range. Moreover, while the federal sentencing guidelines were implemented in part to reduce extra-legal disparity in sentencing, it is important to note that extant research finds evidence of disparities in punishment outcomes related to legally irrelevant factors such as race, ethnicity, and sex continue (Baumer, 2013;Mustard, 2001;Ulmer, Painter-Davis, & Tinik, 2016), although disparities have lessened over time (King & Light, 2019). Furthermore, such extra-legal disparities also remain present in samples of federal drug offenders (Kautt & Spohn, 2002;King & Light, 2019;Testa & Lee, 2021;Ward et al., 2016). ...
The rate of drug overdose deaths has increased substantially in the United States in the past two decades. However, limited research has examined how the criminal justice system is responding to this growing epidemic. Using data on criminal sentences in federal district courts, the current study assesses the relationship between drug overdose death rates and criminal sentences in the United States. Results from multilevel regression models demonstrate that sentences for federal drug offenders were shorter in areas that experienced higher overdose rates and increased growth in overdose rates over time. Findings also demonstrated substantial heterogeneity by drug type, such that substances most closely associated with the overdose crisis (i.e., pharmaceutical opioids and methamphetamines) were sentenced less harshly in areas with higher drug overdose rates. Analyses assessing the change in overdose rates over time, demonstrated that several substances (crack-cocaine, heroin, marijuana, and methamphetamine) were sentenced more harshly in areas with greater growth in the overdose rate, whereas cocaine and pharmaceutical opioids were not impacted by changes in drug overdose rate. These findings are interpreted through the lens of theoretical perspectives and contemporary research pertaining to ways levels of crime and social problems influence punishment decisions.
... Most of the existing federal sentencing studies, however, have focused on understanding racial/ethnic disparities among all defendants sentenced in federal courts regardless of the type of crime charged (Feldmeyer & Ulmer, 2011;Franklin & Henry, 2020;Johnson & Betsinger, 2009;Light et al., 2014;Mustard, 2001;Steffensmeier & Demuth, 2000;Ulmer et al., 2016) or among specific offense types such as federal immigration (Hartley & Tillyer, 2012) or narcotics offenses (Lynch & Omori, 2018;Ward et al., 2016). In contrast, little research has examined the determinants of sentencing outcomes for those convicted of federal sex offenses; studies examining racial/ ethnic disparities that emerge among federal sex offense cases specifically are even more sparse. ...
In response to several high-profile violent offenses against children over the past two decades, Congress has enacted several pieces of legislation aimed at increasing punishment for those convicted of federal sex offenses. Coinciding with these enhanced penalties was a demographic shift in the composition of those prosecuted for these offenses. In the federal criminal justice system, sex offenses fall into two main categories: child pornography and sexual abuse. The racial and ethnic makeup of individuals charged for federal sex offenses has significantly changed over the past 15 years. The current study utilizes federal sentencing data from the United States Sentencing Commission for the years 2006 to 2017 to explore the nature of punishment for these offenses over time. We also employ multivariate analyses to examine differences in punishment for the two types of offenses and employ disaggregated analyses by offense type to examine temporal change in racial/ethnic disparities in sentence length and departures from the federal sentencing guidelines. Findings demonstrate that convicted individuals who are Black and Hispanic are receiving harsher sentences over time net of controls for other key predictors such as age, sex, criminal history, and presumptive sentence length. Implications for how legislatively enhanced penalties and changing demographic makeup of those convicted
... 163 These disparities should also give rise to concern as research has shown that the U.S. Federal Sentencing Guidelines have produced remarkable discriminatory racial and gender disparities in U.S. federal sentencing practice. 164 However, research has demonstrated that these disparities are linked to a judge's political affiliation. 165 Therefore, racial and gender disparities are not caused solely by the guidelines. ...
Given the debate at the seventy-second Conference of the Association of German Jurists ( Deutscher Juristentag ) in September 2018 on whether German sentencing needs reform, this Article will explore this very question in greater detail. In this regard, this Article will present various empirical studies in order to demonstrate that notable inconsistencies in German sentencing practice exist. This Article will then point out that broad statutory sentencing ranges, along with fairly vague sentencing guidance, are among the main causes of these disparities. Subsequently, this Article will examine several mechanisms that selected foreign jurisdictions—namely the U.S., the U.K., and Australia—have put in place in order to enhance consistency in their sentencing practices. Three mechanisms of sentencing guidance will be distinguished here: First, formal sentencing guidelines; second, guideline judgments; and third, sentencing advisory bodies as they operate in some Australian states. This Article will compare these mechanisms and assess their merits and drawbacks. Based on this comparative study, this Article will look at how to improve consistency in German sentencing practice. In this respect, this Article will present three steps that German criminal law reform should follow, including a better sentencing framework, the strategic gathering of sentencing data, and the implementation of a flexible sentencing guidelines regime.
... Even still, studies continue to find evidence that disparities emerge in incarceration experiences. Our results lend further credibility to arguments that prisons, and corrections more broadly, need to closely consider the ways in which minorities, women, and economically disadvantaged groups face disproportionately challenging, or even more severe, punishments as a result of their social status (see, e.g., Bridges & Steen, 1998;Mustard, 2001). ...
This paper examines how social capital prior to incarceration may contribute to experiences during incarceration and whether visitation allows social capital to have protective effects. We investigate, too, whether disadvantages experienced during incarceration by racial and ethnic minorities, women, and individuals in poverty can be explained in part by reduced social capital. We test these ideas using national-level survey data from state prison inmates and a series of regression and mediation analyses. Three main findings emerge: (1) Pre-prison social capital reduces in-prison deviance and improves optimism about reentry. (2) Social capital operates through visitation to reduce social isolation. (3) There is some limited evidence that group disparities in in-prison experiences can be explained by inequalities in social capital.
... Among felony defendants, 80% require the assistance of such services (Harlow, 2001). While empirical research has focused on the role of judges in determining case outcomes (Anderson et al., 1999;Mustard, 2001;Abrams et al., 2012;Yang, 2015;Kleinberg et al., 2017;Arnold et al., 2018;Cohen and Yang, 2018), the importance of defense attorneys is underexplored. This paper investigates the relative efficacy of two common alternatives for providing legal counsel to low-income individuals: public defender organization (henceforth PD) and court-appointed private attorneys (henceforth CA). ...
Most criminal defendants cannot afford to hire an attorney. To provide constitutionally mandated legal services, states commonly use either private court-appointed attorneys or a public defender organization. This paper investigates the relative efficacy of these two modes of indigent defense by comparing outcomes of co-defendants assigned to different types of attorneys within the same case. Using data from San Francisco, I show that in multiple defendant cases public defender assignment is plausibly as good as random. I find that public defenders reduce the probability of any prison sentence by 22% and the length of prison sentences by 10%.
... For instance, social scientists argue that male defenders are more likely to be incarcerated than their female counterparts (Berdejó 2018;Steffensmeier and Allan 1996;Steffensmeier, Kramer, and Streifel 1993). Moreover, scholars studying gender disparities in plea-bargaining negotiations suggest that men tend to receive longer sentences than women in criminal cases (Albonetti 2002;Mustard 2001;Shermer and Johnson 2010;Stacey and Spohn 2006;Starr 2015;Steffensmeier and Allan 1996;Steffensmeier et al. 1993;Ward, Hartley, and Tillyer 2016). ...
During the two decades after the end of the Cold War, the U.S. promoted and sponsored Latin America's deepest criminal reform transformation. By the end of 2010, approximately 70 percent of Latin American countries had abandoned their inquisitorial system and adopted the U.S. adversarial model. In the era of mass incarceration, the U.S. decided to expand its criminal justice model without considering the potential negative consequences this could have in foreign penitentiary systems. Despite a large body of literature documenting the scale of felony conviction and imprisonment in the U.S., and its effects on inequality outcomes, we know relatively little about the impact of the U.S. model in Latin American prisons. After the reform took place, almost every country that introduced it experienced an acceleration in the incarceration rate. Almost three decades after the first legal transplant, Latin America lives one of its majors' prison crisis, while the effect of the adversarial model in the carceral outcomes remains empirically unexplored. In this project, I seek to advance the literature regarding the consequences of the U.S. transnational agenda by analyzing how the implementation of the U.S. model in one key jurisdiction-Colombia-resulted in changes to the convicted prison population. Mainly, I will explore the effects of introducing highly controversial institutions like the plea bargaining into the Latin American context. To carry out this analysis, I exploit the variation resulting from the Colombian quasi-experimental implementation of the reform to evaluate how the U.S. criminal justice approach changed the incarceration dynamics and whether the new system caused a convicted prison population growth.
... For these reasons, single-jurisdiction studies have been increasingly used in sentencing research (Johnson & Larroulet, 2019;King & Johnson, 2016;Kutateladze, 2018;Kutateladze et al., 2016;Leiber & Blowers, 2003;McCoy et al., 2012;Metcalfe & Chiricos, 2018;Owens et al., 2017;Wooldredge et al., 2016). Our findings about criminal history (King;, 2019; Owens et al., 2017), pretrial detention (Martinez et al., 2019;Schlesinger, 2007), charging (Owens et al., 2017;Rehavi & Starr, 2014), and economic marginalization (Mustard, 2001) explaining inequality in court outcomes comport with prior studies. ...
A significant body of literature has examined racial and ethnic inequalities in sentencing, focusing on how individual court actors make decisions, but fewer scholars have examined whether disparities are institutionalized through legal case factors. After finding racial and ethnic inequalities in pretrial detention, conviction, and incarceration based on 4 years of felony court data (N = 83,924) from Miami-Dade County, we estimate non-linear decomposition models to examine how much of the inequalities are explained by differences in criminal history, charging, and for conviction and incarceration, pretrial detention. Results suggest that inequality is greatest between White non-Latinos and Black Latinos, followed by White non-Latinos and Black non-Latinos, ranging from 4 to more than 8 percentage points difference in the probability of pretrial detention, 7-13 points difference in conviction, 5-6 points in prison, and 4-10 points difference in jail. We find few differences between White non-Latinos and White Latinos. Between half and three-quarters of the inequality in pretrial detention, conviction, and prison sentences between White non-Latino and Black people is explained through legal case factors. Our findings indicate that inequality is, in part, institutionalized through legal case factors, suggesting these factors are not “race neutral” but instead racialized and contribute to inequalities in court outcomes.
... Extant research has largely found support for this perspective as minority defendants tend to receive harsher punishment in multiple case types, including drug offenses (Mitchell, 2005;Mustard, 2001), and in some instances, this disparity is greater in drug than nondrug cases (Bontrager et al., 2005;Spohn & DeLone, 2000;Steffensmeier & Demuth, 2000;Warren et al., 2012). Moreover, within samples of solely drug offenders, Black and Hispanic offenders have been found to be disadvantaged relative to White offenders (Brennan & Spohn, 2008;Curry & Corral-Camacho, 2008). ...
This study uses 16 years (2002–2017) of federal criminal drug sentences from the U.S. Sentencing Commission (USSC) to examine trends in two criminal sentencing outcomes: whether a defendant received a prison sentence and the length of a prison sentence. Logistic and ordinary least squares regression analyses were used to assess criminal sentencing outcomes. Moderation analyses are conducted to assess variation in sentencing for specific drug offenses over time. Results demonstrate that sentencing for federal drug crimes has become less severe over time. However, there is substantial heterogeneity in sentencing across different drug types, with pharmaceutical opioid cases receiving the least leniency over time regarding the incarceration decision and methamphetamine cases experiencing the lowest reduction in the length of prison sentences from 2002 to 2017. Finally, our analysis stratified by race/ethnicity suggested that there is heterogeneity in sentencing outcomes for federal drug offenders, conditional on racial and ethnic background.
... People prefer to spare the lives of females over the lives of In vehicular homicides, drivers who kill women are given longer sentences than those who kill men Glaeser & Sacerdote, 2003 People are particularly intolerant of aggression from a male and aggression directed toward a female Harris & Knight-Bohnhoff, 1996 People adjust essay performance evaluations upward when they learn writer is female Jampol & Zayas, 2017 Women are punished less than men for the same crime Mazzella & Feingold, 1994 Controlling for numerous characteristics, men receive longer prison sentences than women Mustard, 2001 People have more empathy for female than male perpetrators and female than male victims Osman, 2011 Women are more easily seen as victims and men as women in the West were treated as property and were considered emotional, irrational, and incapable of contributing significantly to higher culture. It is not unimaginable that some of these prejudices still persist and shape society. ...
Many feminists and progressives argue that the West is plagued by pervasive misogyny. In fact, this claim is made with such frequency, and is so rarely challenged, that it has become part of the Left's catechism of victimhood, repeated by rote without a second thought. The only real question is how powerful and pernicious the misogyny is. Real-world data, however, suggest a different narrative, complicated by the fact that men have worse outcomes in many domains. For example, they are much more likely to be incarcerated, to be shot by the police, to be a victim of violent crime, to be homeless, to commit suicide, and to die on the job or in combat than women. Furthermore, they have a shorter life expectancy and are less likely to be college educated than women. Although these (and similar) data can be reconciled with the pervasive misogyny theory, they should at least give pause to the open-minded. The best data from contemporary social science tell a rather different story and suggest that the very persistence of the pervasive misogyny narrative is itself a manifestation of the opposite: society is largely biased in favor of women.
... Research on legal sentencing converges with our findings. In the courtroom, female defendants are less likely to be found guilty and receive shorter sentences than male defendants, even accounting for crime severity (Mazzella & Feingold, 1994;Mustard, 2001;Shields & Cochran, 2019). Indeed, male offenders who victimize females receive the longest sentences, compared to other gender pairings (Curry, Lee, & Rodriguez, 2004). ...
Informed by moral typecasting theory, we predicted a gender bias in harm evaluation, such that women are more easily categorized as victims and men as perpetrators. Study 1 participants assumed a harmed target was female (versus male), but especially when labeled ‘victim’. Study 2 participants perceived animated shapes perpetuating harm as male and victimized shapes as female. Study 3 participants assumed a female employee claiming harassment was more of a victim than a male employee making identical claims. Female victims were expected to experience more pain from an ambiguous joke and male perpetrators were prescribed harsher punishments (Study 4). Managers were perceived as less moral when firing female (versus male) employees (Study 5). The possibility of gender discrimination intensified the cognitive link between women and victimhood (Study 6). Across six studies in four countries (N = 3,137), harm evaluations were systematically swayed by targets’ gender, suggesting a gender bias in moral typecasting.
... And beyond these known legal features that may differ between cases, scholars have identified substantial variation in sentence outcomes both within and between courts. This includes evidence of differences in practice towards offenders of different races, gender, and social class (Albonetti, 1997;Doerner and Demuth, 2010;Everett and Wojtkiewicz, 2002;King and Johnson, 2016;Lightowlers, 2018;Mustard, 2001;Stacey and Spohn, 2006;Steffensmeier and Demuth, 2000), the number of cases processed in a court (Dixon, 1995;Johnson, 2006), and the socio-economic and demographic characteristics of the area where the court is located (Fearn, 2005;Johnson, 2006;Johnson, Ulmer and Kramer, 2008;Ulmer and Johnson, 2004). ...
Empirical research has repeatedly focused on the potential existence of sentencing disparities. In particular, a growing number of studies have used multilevel models to quantify the extent that ‘similar’ offences are treated alike in different courts. This reliance on multilevel models has resulted in a natural focus on differences in the mean sentence awarded between courts, with the amount of within-group variability generally assumed to be the same in each court. In this paper, we show how multilevel models can be extended by allowing the magnitude of within-court differences to be different in each court. This provides a natural framework to connect between-court disparities with the sentencing differences that are thought to originate between judges operating within the same court, particularly in the absence of more fine-grained sentencing data about the
judge residing in each case. Focusing specifically on cases of assault sentenced in 2011, we show that there are substantial differences in the range of sentences awarded in different courts, with the
range almost twice as large in some courts. We also find that it is those courts that appear to show the traits of more homogeneous sentencing that sentence more harshly and that offences involving
the presence of a weapon or evidence of good character and/or exemplary conduct were associated with higher levels of internal consistency.
... lorsque le prévenu est noir que lorsqu'il est blanc 38 . De même, les peines prononcées sont plus longues de 12% lorsqu'elles concernent un défendeur noir 39 . En cas d'homicide, le prononcé de la peine de mort est plus probable lorsque l'accusé est noir et les peines plus sévères lorsque la victime est blanche 40 . ...
... A study examining whether there are significant differences in sentencing in the US between individuals sentenced in the same district courts who committed the same type of crime and have the same criminal history finds that women receive shorter sentences than men, are less likely to have their sentences adjusted upward, and are more likely to receive no prison term [4]. Judges and police officials tend to be more lenient with female criminals, conferring an advantage on women in terms of the expected costs of a criminal act. ...
... Two inputs (criminal history and the severity of an offense) were combined to produce a score that indicated the sentence an offender should receive. 50 Similarly, in Australia, a sentencing calculus was introduced to reduce inconsistencies and increase fairness. 51 However, although these measures included suggested limitations for sentencing, discretion still guided decisions at the end of the day, particularly with the incorporation of aggravating and mitigating factors into a sentence. ...
In response to increasing concerns regarding inconsistency in the decision‐making of institutional review boards (IRBs), we introduce the decision‐maker's dilemma, which arises when complex, normative decisions must be made regularly. Those faced with such decisions can either develop a process of algorithmic decision‐making, in which consistency is ensured but many morally relevant factors are excluded from the process, or embrace discretionary decision‐making, which makes space for morally relevant factors to shape decisions but leads to decisions that are inconsistent. Based on an exploration of similarities between systems of criminal sentencing and of research ethics review, we argue for a discretionary system of decision‐making, even though it leads to more inconsistency than does an algorithmic system. We conclude with a discussion of some safeguards that could improve consistency while still making space for discretion to enter IRBs’ decision‐making processes.
This article reviews the literature on the relationship between the illegal drug trade and violence. The literature review examines the characteristics and nature of violence in the illegal drug trade, distinguishing its systemic elements from the violence of individuals. There is a growing literature looking at variations in levels of violence; some of these explanations compete, while others could be complementary. We lack an overarching theoretical framework that integrates complementary arguments into a general causal argument. The conclusion discusses is the theoretical, methodological, and empirical challenges to developing a general framework for analyzing violence in the illegal drug trade. A general framework guides analysis across all cases, regardless of region, drug, or level of violence. What differs among empirical cases are the values of the causal variables in the distinct context, not the relationship among those variables; variation in levels of violence is the result of differing values among the causal variables. The conclusion ends by suggesting avenues for research.
The existence of crime-related racial stereotypes has been well documented. People tend to associate certain groups with specific crimes, which, in turn, impacts criminal-sentencing decisions through the perceptions of crime severity. This evidence calls for regular updating of rating norms combining these variables. With this objective, and given that most of the normative studies provide norms for a small number of crimes and/or with an insufficient number of participants, a new norming study was conducted. Furthermore, norms from European countries are absent, and the existing ones (mostly with USA-based populations) do not simultaneously examine crime stereotypicality and crime severity. The Crime Stereotypicality and Severity Database (CriSSD) presents normative ratings for a set of 63 crimes on three dimensions: White stereotypicality, Black stereotypicality, and crime severity. The crimes were selected according to a comprehensive procedure. A total of 340 Portuguese participants (72.6% female; Mage = 26.86, SD = 7.65) answered an online survey. Each crime was evaluated by a range of 46-60 participants. Data allowed us to identify a crime typology with three clusters. We present descriptive data (means, standard deviations, and 95% confidence intervals) for each crime. Crime evaluations were associated with sociodemographic characteristics. Additionally, this study gives input regarding the understudied link between crime stereotypes and crime severity, showing that crime severity is predicted by ratings of both Black and White stereotypicality. The CriSSD (available at osf.io/gkbrm ) provides a valuable resource for researchers in the field of social psychology to conduct studies with controlled materials on potential disparities in criminal-sentencing decisions.
Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior.
Previous research on prosecutorial decision‐making has detailed prosecutors' considerable discretionary power along with their desire to avoid uncertain outcomes. However, few studies have applied this decision‐making framework to criminal case outcomes. We addressed this gap by analyzing prosecutors' charging decisions and charge dispositions through the lens of a unique crime: sex trafficking. In the study, we examined whether the type of statute under which federal prosecutors may choose to charge defendants in sex trafficking‐related cases is associated with the disposition of those charges. We used datasets from the Federal Justice Statistics Program for years 1994‐2014 in multilevel logistic regession models that adjusted for factors relevant to prosecutorial decision‐making. We then compared the dispositions of charges filed in sex trafficking‐related cases and asked: Are charges filed under higher‐penalty statutes significantly associated with dispositions that are more favorable to the prosecution? Or is the association present for lower‐penalty statutes instead? Results from our first model, using a dataset with all available charges and dispositions for a 21‐year period, show that when a charge is filed under a higher‐penalty statute, the adjusted odds that its disposition is more favorable to the prosecution are about 60% higher than the odds for charges filed under lower‐penalty statutes. Results from a subset of charge data linked to demographic characteristics show that the adjusted odds of obtaining a favorable charge disposition are 65% lower when the defendant is female. These associations suggest that higher‐penalty statutes in sex trafficking‐related cases, with their concomitant higher burdens of proof, do not necessarily implicate greater uncertainty in outcomes. Prosecutors have been using their discretion to charge under the more punitive statutes for many years and these cases have relatively high probabilities of favorable outcomes. This discretion may nevertheless be curbed by defendant characteristics beyond the prosecutor's control, including gender.
According to instrumental proceduralism, political power is justified when it is the output of a reliable procedure. In this paper, I examine how procedures are supposed to confer normative properties. Based on this assessment, I conclude that many proceduralists set the reliability bar too low. Next, I motivate two additional requirements for instrumental procedures. I introduce the notion of “predictable” procedural failure and argue that in order for a procedure to confer legitimacy or other normative properties on its output, it must not have failed predictably. Finally, I argue that even when procedures are highly reliable, it must not be the case that their failures fall disproportionately on certain people. The goal is to develop an instrumental proceduralism that is more sensitive to the failures of real institutions.
Sentencing study of Portuguese Court Decisions on sexual violence crimes
This article explores one way prior punishments may contribute to cumulative disadvantage: through more severe sentencing of those under criminal justice supervision. We examine the impact of being on supervision in Michigan on receiving a sentence of imprisonment—comparing the magnitude of the impact reflected in the formal sentencing guideline recommendation with deviations made by court actors. We find that the formal penalty for supervision status is modest, whereas court actors place substantially more weight on current parole status than do the guidelines when deciding to sentence a defendant to prison. They do not seem to give current probation status extra weight in a consistent way. As such, parole is more likely to contribute to cumulative disadvantage stemming from prior punishments. This disproportionately impacts Black defendants because of their higher rates of parole—not through disproportionate sentencing conditional on parole status. Findings suggest that attempts to address factors contributing to cumulative disadvantage will need to consider not only formal rules but also how informal discretion contributes to prison sentences.
This paper mainly focuses on crime rate and literacy in India. Crime Rate in India is reported 385.5 in 2019 which has been increasing by upward trend since 1980 as per the data provided by National Crime Records Bureau, Ministry of Home Affairs, and Government of India. An attempt is made to find the relationship between the crime rate and literacy rate in states and union territories through a regression model. The result shows that Strength of association is even though less it indicates a positive relationship between literacy rate and IPC, SLL and Crime against Children.
The 1984 federal Comprehensive Crime Control Act (CCCA) included a provision that permitted local law enforcement agencies to acquire up to 80% of the proceeds derived from civil asset forfeitures obtained in joint operations with federal authorities. We investigate how this rule governing forfeited assets influenced crime and police incentives by taking advantage of pre‐existing differences in state‐level civil asset forfeiture law and the timing of the CCCA. We find that after the CCCA was enacted crime fell about 17% in places where the federal law allowed police to retain more of their seized assets than state law previously allowed. (JEL K42, K15, H76)
Analyzing sentencing disparity calls for more calibrated measures to capture the nuances of judicial discretion within jurisdictions that adopt strict sentencing guidelines. This article uses an unconventional outcome variable, percent deviation, to investigate guideline digressions in a nested, multilevel model. Percent deviation is calculated based on the difference between the guidelines’ “arithmetic starting point” and the actual starting point that a judge adopts. Two equations were used to measure percent deviation from the arithmetic starting point before and after adjustment for guilty plea sentence reductions. Extracting data on drug trafficking cases from an open‐source database from the Hong Kong Judiciary (n = 356), we illustrate how percent deviation can be employed as a measure of inter‐judge disparity using hierarchical linear models (HLMs). Our findings suggest that approximately 8 to 10 percent of the deviation in sentence length can be attributed to judges’ differential sentencing behaviors. The deviation is affected by case characteristics as well as judicial characteristics. Due to the wide guideline ranges, departures from said guidelines’ ranges are not common. This indicates that the guideline ranges mask the deviation and inter‐judge disparity that exist and recur.
Research Summary
In late 2014, California voters passed Proposition 47 that redefined a set of less serious felony drug and property offenses as misdemeanors. We examine how racial and ethnic disparities in criminal court dispositions in San Francisco change in the years before (2010–2014) and after (2015–2016) the passage of Proposition 47. We decompose disparities in court dispositions into components resulting from racial/ethnic differences in offense characteristics, involvement in the criminal justice system at the time of arrest, pretrial detention, criminal history, and the residual unexplained component. Before and after Proposition 47, case characteristics explain nearly all of the observable disparities in court dispositions between racial and ethnic groups. After the passage of Proposition 47, however, there is a narrowing of disparities in convictions and incarceration sentences that is driven by lesser weight placed on criminal history, active criminal justice status, and pretrial detention in effecting court dispositions
Policy Implications
The findings from this study suggest that policy reforms that scale back the severity of punishment for criminal history and active criminal justice status for less serious felony offenses may help narrow inter‐racial and inter‐ethnic inequalities in criminal court dispositions. Efforts to reduce racial and ethnic inequalities in mass incarceration in other states should consider reforms that reduce the weight that criminal history, pretrial detention, and active probation status has on criminal defendants’ eligibility for prison for less serious drug and property offenses.
Defendants facing felony prosecutions often avoid trial by pleading guilty. Sexual offense cases reach plea dispositions less frequently, though pleas are still common. Public opinion has held that sex offenders are treated too leniently by the justice system. However, limited research on sex offender pleas has not supported these perceptions. The current project compared public records for sexual crime indictments (n =188) with other violent crime indictments (n = 603) entered in 2015 in three Massachusetts counties. We recorded defendants’ age, information about the charges, case proceedings, acting parties, as well as plea and sentencing outcomes for each case. We conducted multilevel regression analyses to address several gaps in prior research, including (1) differences in plea frequency between sexual and non-sexual crime defendants, (2) factors accounting for variation in plea outcomes, and (3) the impact of prosecutorial and judicial discretion on plea frequency and sentencing outcomes. Analyses demonstrated that plea-bargaining produced longer custodial and probationary sentences, yet also increased credit for pretrial confinement. Further, we found that sex-crime defendants were penalized more harshly than similarly-rated violent crime defendants. We conclude that defendants who accepted pleas did not benefit by entering these agreements.
This paper uses the universe of convictions in France between 2000 and 2003 to document the gender gap in sentencing. It reveals three main findings. First, during this period, and after controlling for very precise descriptions of the offences as well as other observable characteristics, women received prison sentences that were 15 days shorter, on average, than those of men who committed comparable offences. This represents a 33% decrease relative to the average sentence length in the sample (45 days in the entire sample). Second, this gender gap is also observed for mixed‐gender pairs of criminals (one man and one woman) who are convicted together, on the same day, by the same person and for the same crime. Finally, this paper presents robust evidence that the gender gap is affected by the gender of the judge, but not that of the prosecutor. Using the evolution of the courts’ composition between 2000 and 2003, the results show that a one‐standard‐deviation increase in the number of women in the court decreases the gender gap by 10%.
Reevaluation of published research on racial bias in criminal sentencing and of data on execution rates by race from 1930 to 1967 and on death-sentencing rates from 1967 to 1978 indicates that, except in the South, black homicide offenders have been less likely than whites to receive a death sentence or be executed. For the 11% of executions imposed for rape, discrimination against black defendants who had raped white victims was substantial, but only in the South. Evidence for noncapital sentencing also largely contradicts a hypothesis of overt discrimination against black defendants. Although black offender--white victim crimes are generally punished more severely than crimes involving other racial combinations, this appears to be due to legally relevant factors related to such offenses. Crimes with black victims, however, are less likely than those with white victims to result in imposition of the death penalty. The devalued status of black crime victims is one of several hypothetical explanations of the more lenient sentencing of black defendants.
In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law man-dated the immediate and simultaneous attention of such a large segment of the fed-eral trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of * Professor of Law, Drake University (greg.sisk@drake.edu). B.A., 1981, Montana State University; J.D., 1984, University of Washington. In 1988, I was a member of a small team of attorneys in the United States Department of Justice leading the government's defense against constitutional challenges to the Sentencing Guidelines in district courts and courts of appeals throughout the nation. I want to thank several people whose support and generous contribution of time and information were essential to this project. John Steer, general counsel, and Mary McDowell, staff attorney, at the United States Sentencing Com-mission, provided thoughtful advice on background research and access to invaluable data, while securing my agreement to protect the confidentiality of judges who had reported oral rulings on the constitutionality of the Sentencing Guidelines in 1988. Professor Sheldon Goldman of the University of Massachusetts at Amherst very kindly shared information on American Bar Association ratings and racial background of judges from his invaluable database of information, thereby encouraging a young scholar to persevere with this pro-ject. Bill Davis at the National Archives Legislative Records Center spent many hours locating legislative materials on judicial nominees. Others reviewed drafts, provided valua-ble comments on substance and technique, shared data or information, assisted in other ways, or offered encouragement, including. As my research assistants, 1377 1378 NEW YORK UNIVERSITY LAW REVIEW [Vol. 73:1377 data, the authors have looked deeper into the judicial mind and observed the emer-gence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.
When judges have discretion over fines and prison terms, sentencing exhibits a tendency" toward efficiency: fines are larger, and prison terms shorter, for offenders with greater ability to" pay. Sentencing guidelines place fairly rigid upper and lower limits on fines and prison terms" and may inhibit the achievement of efficiency in sentencing. Preventing judges from substituting" fines for prison terms may raise the cost of imposing punishment. The objective of this paper is" to measure the efficiency cost of sentencing guidelines using data on federal offenders sentenced" under the Federal Sentencing Guidelines. We find evidence that the guidelines raise the cost of" punishment by nearly 5 percent of the total imprisonment cost of federal offenders. Not" surprisingly, constraints on cost minimization raise costs.
Much of the controversy about whether mortgage lenders discriminate against minorities can be explained in terms of the confusion about how to define discrimination. Based on the legal definition, careful studies of loan denial rates, such as that done by the Federal Reserve Bank of Boston, represent an appropriate method for testing for discrimination by lenders. Based on that study, it is quite clear that lenders discriminate. The fact that minorities have higher default rates on average than whites is irrelevant to the interpretation of the race coefficient in such models. Nonetheless, more research on and discussion about the relationship between the race of the applicant and delinquencies, defaults, and losses would be desirable. Copyright 1998 by American Economic Association.
There is substantial racial and gender disparity in the American economy. As we will demonstrate, discriminatory treatment within the labor market is a major cause of this inequality. Yet, there appear to have been particular periods in which racial minorities, and then women, experienced substantial reductions in economic disparity and discrimination. Some questions remain: Why did the movement toward racial equality stagnate after the mid-1970s? What factors are most responsible for the remaining gender inequality? What is the role of the competitive process in elimination or reproduction of discrimination in employment? How successful has the passage of federal antidiscrimination legislation in the 1960s been in producing an equal opportunity environment where job applicants are now evaluated on their qualifications? To give away the answer at the outset, discrimination by race has diminished somewhat, and discrimination by gender has diminished substantially; neither employment discrimination by race or by gender is close to ending. The Civil Rights Act of 1964 and subsequent related legislation has purged American society of the most overt forms of discrimination, while discriminatory practices have continued in more covert and subtle forms. Furthermore, racial discrimination is masked and rationalized by widely-held presumptions of black inferiority.
In 1988, hundreds of federal district judges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act arid the newly promulgated criminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional law mandated the immediate and simultaneous attention of such a large segment of the federal trial bench. Accordingly, this event provides an archetypal model for exploring the influence of social background, ideology, judicial role and institution, and other factors on judicial decisionmaking. Based upon a unique set of written decisions involving an identical legal problem, the authors have produced an unprecedented empirical study of judicial reasoning in action. By exploiting this treasure trove of data, the authors have looked deeper into the judicial mind and observed the emergence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutional theory, and engaged in legal reasoning.
The Sentencing Reform Act of 1984 mandated major restructuring of federal sentencing through specific sentencing guidelines. New sentencing guidelines developed by the United States Sentencing Commission and adopted in 1987 explicitly linked sentencing to "relevant conduct"-offense characteristics-and sought to abolish unwarranted sentence disparity. The guidelines substantially reduced judicial discretion and resulted in a criminalization and sentencing process that is largely prosecutor controlled. The author has generated hypotheses that relate defendant characteristics, guilty pleas, and departures from sentencing guidelines to sentence outcomes under the federal sentencing guidelines. She first examined the variables influencing sentence severity for the drug offenders who were sentenced in 1991-92. She then explored the interaction effects by estimating the tobit equation separately for three groups-black, white, and Hispanic defendants-to discover whether defendant's ethnicity conditions the effect of other defendant characteristics, guidelines-defined legally relevant variables, guilty pleas, and departures on sentence severity. Her analysis reveals that disparity in federal sentencing of drug offenders is linked not only to offense-related variables, as structured by the guidelines, but also to defendant characteristics such as ethnicity, gender, educational level, and noncitizenship, which under the guidelines are specified as legally irrelevant.
The Sentencing Reform Act of 1984 sought to bring consistency, coherence, and accountability to a federal sentencing process that was deficient in these respects. Requiring sentencing judges to explain their decisions and permitting appellate review were, in our view, genuine accomplishments of the Act. Unfortunately, the potential contributions of these legislative achievements have been arrested by the implementation of a system of complex and rigid sentencing rules devised by an administrative agency in Washington. Here, we discuss two unintended consequences of the Federal Sentencing Guidelines. First, the traditional sentencing ritual has lost much of its moral force and significance. Second, both sentencing judges and appellate judges have been denied the opportunity to develop a principled sentencing jurisprudence.
This brief commentary attempts to demonstrate how the United States Sentencing Commission’s a theoretical approach to sentencing led to many difficulties with the Federal Sentencing Guidelines
I show that for many crimes the effect of reduced income from conviction constitutes a major penalty and that the absolute size of this penalty seems to be positively related to the level of the criminal's preconviction income.
For two centuries, federal judges exercised wide discretion in criminal sentencing. This changed in 1987, when a hopelessly complex bureaucratic apparatus was imposed on the federal courts. Though termed Sentencing "Guidelines," the new sentencing rules are mandatory. Reformers hoped that the Sentencing Guidelines would address inequities in sentencing. The Guidelines have failed to achieve this goal, according to Kate Stith and José Cabranes, and they have sacrificed comprehensibility and common sense. Fear of Judging is the first full-scale history, analysis, and critique of the new sentencing regime. The authors show that the present system has burdened the courts, dehumanized the sentencing process, and, by repressing judicial discretion, eroded the constitutional balance of powers. Eschewing ideological or politically oriented critiques of the Guidelines and offering alternatives to the current system, Stith and Cabranes defend a vision of justice that requires judges to perform what has traditionally been considered their central taskâexercising judgment.
The 1987 sentencing reforms were expected to change profoundly the environment in which plea bargaining takes place by increasing the average length of sentences for serious crimes and by eliminating the variation in sentences imposed by different judges. Using cases initiated and resolved between 1981 and 1995 in two federal district courts of New York, we examine whether the variation in sentences attributable to individual judges has been eliminated, and we investigate whether the plea-bargaining behavior of defendants has changed. Surprisingly, we find that the amount of variation attributable to the judge for trial sentences increases post-reforms. Consistent with this result, defendants continue to bargain in the shadow of the judge post-reforms, particularly for crimes involving minimum sentences. Further, sentences may not have increased as much as expected: although the average prison term for trial sentences increases post-reforms, there is no systematic increase in the average length of the pleas. Copyright 1999 by the University of Chicago.
This paper evaluates the impact of the Federal Sentencing Guidelines on inter-judge sentencing disparity, which is defined as the differences in average nominal prison sentence lengths for comparable caseloads assigned to different judges. This disparity is measured as the dispersion of a random effect in a zero-inflated negative binomial model. The results show that the expected difference between two typical judges in the average sentence length was about 17 percent (or 4.9 months) in 1986-87 prior to the Guidelines, and fell to about 11 percent (or 3.9 months) from 1988-93 during the early years of the Guidelines. We have not sought to measure the effect of parole in the pre-Guidelines period, other sources of disparity such as prosecutorial discretion, or the proportionality of punishment under the Guidelines as compared with the pre-Guidelines era.
Although a substantial body of research suggests that the discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over the specific role of discretion and over the extent to which discretion influences criminal justice outcomes. Studies in this literature generally hypothesize that discretion plays one of two roles; either it serves as the means by which changing broad social norms against crime cause changes in sentencing patterns (with concurrent changes in formal laws reflecting broad social norms but not causing criminal justice outcomes), or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after the passage of Proposition 8, which provided for sentence enhancements for those convicted of certain "serious' crimes with "qualifying" criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually "similar' crimes, where a "similar" crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call "prosecutorial maximization."
Many critics believe that since high income criminals can afford to purchase better legal services they are less severely punished than poor criminals who commit equivalent crimes. Others are concerned that the penalties imposed on criminals are "too small." This paper shows that ignoring the effect conviction has on later earnings dramatically underestimates the total monetary penalty paid by those convicted and that the penalty structure is extremely progressive. Where evidence on the probability of conviction is available, it shows that the highest income criminals face the highest expected penalties. Copyright 1992 by Oxford University Press.
Economists have contributed to the measurement of racial and ethnic discrimination in consumption and to the identification of its causes, especially in housing markets and car sales. To test the hypothesis that discrimination exists, economists have turned to regression analysis and to audits, a matched-pair survey technique. Economists also have developed audit-based measures of the incidence and severity of discrimination. Audit studies find continuing high levels of discrimination against minorities in the marketing of available housing and in car prices. Audit studies also find that discrimination can be caused both by economic agents' prejudice and by their search for profits. Copyright 1998 by American Economic Association.
Gender and Sentencing: Single Moms, Battered Women, and Other Sex-based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines
- Myra S Raeder
Raeder, Myra S. "Gender and Sentencing: Single Moms, Battered Women, and
Other Sex-based Anomalies in the Gender-Free World of the Federal
Sentencing Guidelines." Pepperdine Law Review 20 (1993): 905-90.
Sentencing the Offender: A Bibliography
- Dorothy L Tompkins
Tompkins, Dorothy L. Sentencing the Offender: A Bibliography. Berkeley:
University of California, Berkeley, Institute of Governmental Studies, 1971.
Sometimes the Punishment Fits the Gender
- Laura Mansnerus
Mansnerus, Laura. "Sometimes the Punishment Fits the Gender." New York Times
(November 16, 1997), Section 4, p. 1.
Equal Crime, but Not Equal Time
- Laura Frank
Frank, Laura. "Equal Crime, but Not Equal Time." Tennessean (September 24,
1995), p. A1.
Checking the Balance: Prosecutorial Power in an Age of Expansive Legislation
- Robert G Morvillo
- Bohrer
- A Barry
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Sentencing Guidelines and Their Effects In The Sentencing Commission and Its Guidelines
- Michael Tonry
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and Michael Tonry. Boston: Northeastern University Press, 1987.
The Criminal in the Arms of the Law
- Justice
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Research on Disparities The Criminal in the Arms of the Law
- Edward Green
Green, Edward. " Research on Disparities. " In Crime and Justice. Vol. 2. The
Criminal in the Arms of the Law. Edited by Leon Radzinowicz and Marvin
E. Wolfgang, pp. 529–39. New York: Basic Books Inc., 1971.
Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses
of Defendant Characteristics, Guilty Pleas, and Departures on Sentence
Outcomes for Drug Offenses, 1991–1992. " Law and Society Review 31 (1997):
789–822.
The Criminal in the Arms of the Law
- Edward Green
Green, Edward. "Research on Disparities." In Crime and Justice. Vol. 2. The
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E. Wolfgang, pp. 529-39. New York: Basic Books Inc., 1971.