The Impact of Racial and Ethnic Bias in Criminal Sentencing Decisions

Literature Review

Judicial bias pertaining to race and ethnicity is a controversial phenomenon that has been researched historically, and continues in contemporary society. One of the first criminologists to analyse this was Beccaria (1764) in Dei delitti e delle penne (an essay on crime and punishments), he argued that judicial process favoured the wealthy and powerful to the detriment of the less fortunate, his research had a profound impact on historical judicial process and reformation of criminal law. Since that time numerous researchers have methodically reviewed, dissected and reframed theory on judicial bias in relation to race and ethnicity in sentencing decisions. Empirical data demonstrates vast disparity and reveals a juxtaposition of conflicting theories pertaining to race, ethnicity, and sentencing outcomes.
For many years, people of different racial and ethnic backgrounds have been over-represented throughout the criminal justice system. Walker (2003), Spohn (2000, 2002), Kault (2002) and DeLone (2000, 2003) have researched extensively on this topic and theorise that there are several facets of what they refer to as a “discrimination-disparity continuum.” They argue that discrimination is ‘systemic’ and experienced at each stage of the criminal justice system. For example, ‘institutionalised discrimination’ is due to the impact of policies and procedures that are implemented without discriminatory intent, and yet adversely affect minorities. Further to this is the over-policing of targeted racial and ethnic communities, Walker, Spohn, and DeLone (2003) refer to this as ‘contextual discrimination’ this then sees an exponential increase in entry into the criminal justice system and impacts on higher incarceration rates.
Further research by Taxman and Byrne (2005) theorised that racial and ethnic disparity is a cumulative process prior to sentencing. They argued that this occurs due to differential rates of involvement in criminal behaviours and the racial and ethnic characteristics of the offenders, whereby the race effect is confounded by procedural and extralegal variables. Thereby, those of racial and ethnic minority groups of lower socio-economic status are unable to obtain appropriate legal representation, which leads to longer sentencing, and higher incarceration rates overall. Ehlers and Lotke (2004); Miller (1996) and Schiraldi (1994, 2004) state that research demonstrates pervasive racism, and systemic discrimination, throughout the criminal justice system, that by design contributes to the recycling of individuals.

Zatz (1987) also demonstrated the continuity of contributing factors throughout the criminal justice system in the churning of individuals and rates of recidivism among racial and ethnic minority groups in a research study. Zatz’s research study demonstrated significant variations in sentencing outcomes pertaining to racial and ethnic background. Zatz referred to this as ‘cumulative disadvantage’, Zatz argued that throughout the various stages of the criminal justice system minor differences eventually compound and become measurable and significant in the overall outcome. Moreover, Erez (1991) states that sentences for comparable crimes are based predominantly on the characteristics of the victims and not the offences committed, whereby if a black person of lower socio-economic status perpetrated a criminal act on a white person the penalty would be far more severe, however if the scenario is reversed the penalty would be less severe.
Further research entitled “Effect of Race on Sentencing: A Re-examination of an unsettled question” by Spohn, Gruhl, and Welch (1982) replicated and extended Uhlman’s (1977) research into racial disparity in sentencing outcomes in ‘Metro city.’ Uhlman’s analysis of 50,000 felony cases between 1968 and 1969 demonstrated no direct correlation between race and ethnicity when the analysis controlled two dependent variables pertaining to prior criminal convictions and severity of charges. However, Uhlman (1977); Spohn, Gruhl, and Welch (1982) established that when independent variables pertaining to prior criminal convictions, race, bail amount, pre-trial status, type of plea and type of legal representation were introduced it was apparent that black males received harsher sentencing outcomes than White males. The decision to incarcerate, or not to incarcerate was measured by introducing a dichotomous prison/no prison variable.
Furthermore, Spohn, Gruhl, and Welch (1982); and Uhlman’s (1977) analysis of statistical data demonstrated that black males who could not afford adequate legal representation suffered from what they referred to as ‘wealth discrimination’ which then adversely impacted on black offenders with harsher sentencing. Further data demonstrated that even when controlling legal and extra-legal factors vast disparity was apparent in the sentencing outcomes of black offenders and white offenders, demonstrating an increase of black imprisonment at the rate of 5 percent was noted, which when compounded resulted in a 20 percent higher rate than white offenders.

It is obvious when researching the impacts of race and ethnicity on sentencing outcomes that there are innumerable variables required to measure the outcomes that are necessary to obtain evidentiary validity. Moreover, the plethora of complexities involved in this type and scale of measurement are confounded and in some cases contradictory. Numerous scholars oppose these various hypothesis on racial and ethnic disparity and discrimination within the criminal justice system, for example Hindelang (1969), Kleck (1981); Whitney (1999); and Willbanks (1987) concluded through their various research that the criminal justice system in most instances favours minority racial and ethnic groups at the expense of disadvantaging whites.
In Summary
It is obvious that the measurement of the impact of racial and ethnic disparity in sentencing, and discrimination throughout all tiers of the criminal justice system is fraught with difficulties due to the reflexive nature of the cause and effect of the outcomes. Numerous researches expound that prior criminal convictions and severity of criminal offences are the reason for the demonstrated disparity in outcomes. However, due to the institutional structures and design of the criminal justice system, racial and ethnic minority groups are targeted by police wielding extensive powers of discretion. Therefore, influencing the rates of charging of individuals within specific racial and ethnic groups, thereby further affecting these individuals entry in the criminal justice system. Furthermore, research expounds that it is not necessarily the rates of recidivism but the system itself recycling these individuals. It is therefore necessary to examine the criminal justice system in its entirety to understand and gauge why sentencing disparities emerge within various racial and ethnic minority groups.

Bibliography

Beccaria (1764) Dei delitti a delle penne; An essay on crimes and punishment. Translated in 1819. http://www.constitution.org/cb/crim_pun.htm Accessed 18/11/08.
Kault, P., Spohn, C (2002) Assessing blameworthiness and Assigning punishment: Theoretical perspectives on judicial decision making. In Duffee, D and Maguire, E (eds), Criminal Justice Theory: Explicating concepts and linkages about nature and behaviour of criminal justice. Belmont, CA: Wadsworth. http://www.ncjrs.gov/pdffiles1/nij/grants/223854.html Accessed 20/11/08.
Spohn, C (2002) How do judges decide? ‘The quest for fairness and justice in punishment. Thousand Oaks,’ CA: Sage Publications http://www3.interscience.wiley.com/journal/118594874/abstract.html. Accessed 20/11/08.
Spohn, C., DeLone, M (2000) When Does race matter? An examination of the conditions under which race affects sentencing severity. Sociology of Crime, Law and Deviance 2. P.p 3-37.
Spohn, C (2000) Thirty years of sentencing reform: The quest for a racially neutral sentencing process, National Institute of Justice. Reprinted in Austin Sarat (ed), 2004. The Social Organisation of Law. Los Angeles: Roxbury Publishing. http://209.85.173.132/search?q=cache:yuYWZ_dcsIoJ:www.ncjrs.gov/criminal_justice2000/vol_3/03i.pdf+Spohn+C+thrity+years+of+sentencing+reform&hl=en&ct=clnk&cd=1&gl=au.html Accessed 22/11/08. Taxman. F., Byrne, J.M (2005) Racial Disparity and the legitimacy of the criminal justice system.

Bibliography: Beccaria (1764) Dei delitti a delle penne; An essay on crimes and punishment. Translated in 1819. http://www.constitution.org/cb/crim_pun.htm Accessed 18/11/08. Kault, P., Spohn, C (2002) Assessing blameworthiness and Assigning punishment: Theoretical perspectives on judicial decision making. In Duffee, D and Maguire, E (eds), Criminal Justice Theory: Explicating concepts and linkages about nature and behaviour of criminal justice. Belmont, CA: Wadsworth. http://www.ncjrs.gov/pdffiles1/nij/grants/223854.html Accessed 20/11/08. Spohn, C (2002) How do judges decide? ‘The quest for fairness and justice in punishment. Thousand Oaks,’ CA: Sage Publications http://www3.interscience.wiley.com/journal/118594874/abstract.html. Accessed 20/11/08. Spohn, C., DeLone, M (2000) When Does race matter? An examination of the conditions under which race affects sentencing severity. Sociology of Crime, Law and Deviance 2. P.p 3-37. Spohn, C (2000) Thirty years of sentencing reform: The quest for a racially neutral sentencing process, National Institute of Justice. Reprinted in Austin Sarat (ed), 2004. The Social Organisation of Law. Los Angeles: Roxbury Publishing. http://209.85.173.132/search?q=cache:yuYWZ_dcsIoJ:www.ncjrs.gov/criminal_justice2000/vol_3/03i.pdf+Spohn+C+thrity+years+of+sentencing+reform&hl=en&ct=clnk&cd=1&gl=au.html Accessed 22/11/08. Taxman. F., Byrne, J.M (2005) Racial Disparity and the legitimacy of the criminal justice system.