The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.     

美国量刑理论中的关注焦点理论

关注焦点理论是美国刑事司法领域解释量刑差异的主流理论。该理论认为,法官和其他刑事司法系统的决策者在作出量刑决定时有三个关注焦点:罪犯的可谴责性、人身危险性,以及实践中的可操作性。由于法官在量刑时缺乏完整的信息,因此使用"感官速记"把对这三个焦点的关注转化为对性别、年龄、种族等表面信息的关注,导致"类案不同判"。对关注焦点的研究,在理论上有助于理解司法过程中量刑差异的产生原因,在实践中有助于解决量刑不规范的问题。通过介绍美国的关注焦点理论,以及这个理论框架下的实证研究和对关注焦点理论的评论,反思对我国量刑理论和实践的借鉴意义。     

Criminal Justice Through “Colorblind” Lenses: A Call to Examine the Mutual Constitution of Race and Criminal Justice

A central paradox defines the scholarship of criminal justice and race: while racial disparities manifest throughout the criminal justice system, it is often portrayed as race‐neutral. We identify two central paradigm shifts: one in penology (that focuses on risk) and one in racial ideology (that focuses on colorblindness) that create a perfect storm; criminal justice apparatuses produce an illusion of racial neutrality while exacerbating racial disproportionality. We join an expanding list of scholars encouraging discourse that engages critical race theory on an empirical level and import this approach to the consideration of race within the criminal justice system. We identify issues with the conceptualization and operationalization of race as a variable within criminal justice research and recommend that scholars consider the mutual constitution of race and criminal justice. That is, scholarship must examine and empirically measure how race and criminal justice institutions actively form and inform each other.     

Racial Minority Women and Criminal Justice Responses to Domestic Violence

Racialized minority women’s experiences with Canadian specialized criminal justice responses to domestic violence have seldom been documented. Informed by an intersectionality framework, this qualitative study presents the struggles of 14 racial minority women from three Canadian cities and their experiences with the police and criminal court’s response to their partner’s acts of domestic violence. The results focus on how well specialized criminal justice responses address the needs of these women and protect them from further violence. Factors that facilitate or deter these women from approaching the criminal justice system for help are highlighted. The implications of these women’s narratives for criminal justice responses to domestic violence are discussed.     

THE CENTRAL PLACE OF RACE IN CRIME AND JUSTICE—THE AMERICAN SOCIETY OF CRIMINOLOGY'S 2011 SUTHERLAND ADDRESS*

In the United States and elsewhere, racial and ethnic disparities in crime and criminal justice are relatively ubiquitous. Yet the meaning of such disparities is not well understood. To address this concern, periodically there have been calls for research that takes into account the broader structural context of the racially and ethnically inequitable crime and justice patterns. However, a comprehensive approach to understanding such inequality is seldom applied in research. In this article, I review findings from a program of research on crime across race–ethnic neighborhoods that I have undertaken with Lauren J. Krivo and other colleagues to provide, and assess, such a framework. The starting point of our approach is that ethnoracial inequality in neighborhood crime is an outgrowth of a racialized social structure maintained largely through racial residential segregation. As anticipated, the findings illustrate the value added from research that embeds its assessment of crime and justice within an understanding of structured societal inequality. From these results, I call for placing race and ethnicity at the center of the study of crime and justice.     

Bias in the Family: Race,Ethnicity, and Culture in Custody Disputes

This essay examines the role of racial, ethnic, and cultural bias in custody cases. It analyzes cases where the court explicitly considered the parents’ racial, ethnic, or cultural background and cases where the court did not acknowledge these factors but where it is clear from the court's opinion that biases influenced its decision. It then briefly describes the literature on implicit bias to demonstrate how biases may influence the assessments of custody evaluators, lawyers, and judges despite best efforts to make fair and impartial decisions. Drawing on studies suggesting that individuals can reduce their implicit biases and their effects on decision making, the essay explores individual strategies and institutional reforms to address bias in custody disputes.     

Chutzpah even before the heavenly court

This article discusses how classic and contemporary films can be used to examine justice and peacemaking themes in personal, social, and criminal justice contexts. Thematic topics include poverty, homelessness, the Holocaust, racial prejudice, prison violence, and religious intolerance. The author attempts to illustrate how transformative justice can occur through individual acts of compassion and courage in difficult circumstances.     

Reflections on the Impact of Race and Ethnicity on Juvenile Court Outcomes and Efforts to Enact Change

American Journal of Criminal Justice - There are persistent racial and ethnic disparities in the juvenile justice system. The current paper reviews how and whether public and private strategies...     

The Politics of Benchcraft: The Role of Judges in Mental Health Courts

Mental health courts (MHCs) offer community‐based treatment in lieu of criminal prosecution for chronic offenders with psychiatric disabilities, and MHC judges enjoy expanded powers to achieve the court's objectives. Because scholars know little about how judges transition into a new occupational role in the problem‐solving courtroom, this ethnographic study of four MHCs in the United States focuses on how judges learn to orchestrate their responses to treatment noncompliance in this novel court setting. The goal of this article is to examine the professionalization of MHC judges and the emergent craft of therapeutic adjudication. To achieve this goal, I investigate judicial strategies for motivating, questioning, and defending participants accused of wrongdoing. I conclude that the art and practice of problem‐solving justice requires judges to rise to the larger institutional challenges embedded in the alternative courtroom, a process I call the politics of benchcraft.     

Evaluating the Role of Race in Sentencing: An Entropy Weighting Analysis

The current study builds on prior research examining racial disparities in sentencing. Entropy weighting is introduced as a new method for estimating racial disparities that has several advantages over traditionally used methods. Entropy weighting is compared to regression and propensity score methods in estimating Black-White disparities in incarceration sentences. Although all methods find non-significant racial disparities in incarceration sentences, regression and propensity score methods underestimate disparities in incarceration sentence lengths. Entropy weighting provides comparable estimates to propensity score methods, but assures that the samples are identical on all covariates aside from race. The method offers researchers a useful and flexible approach for estimating racial disparities in criminal justice, and its use may lead to alternative conclusions about the size and presence of racial disparities in sentencing.     

Race,Crime, and Criminal Justice

Fifty years ago, the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson did not frequently mention race and ethnicity in its discussion of and recommendations for the criminal justice system, but it did have a lot to say about race and crime. Through the use of arrest rates to measure racial differentials in criminal involvement, the Commission concluded that Blacks commit more crime as a consequence of Black people living in greater numbers in criminogenic “slum” conditions. To address racial differences, the Commission favored the Great Society programs of Johnson's War on Poverty. Contemporary criminologists continue to debate the racial distribution of crime, the causes of crimes, and the best policies to reduce crime and racial differentials. The Commission did not anticipate the current debate among scholars regarding how much racial disproportionality exists in the criminal justice system and its causes and consequences. The policies that led to mass incarceration have been significant drivers of continued criminal justice racial disparity. Those policies are inconsistent with the recommendation in The Challenge of Crime in a Free Society (1967), upending the pursuit of a more fair and just system.     

RACIAL THREAT,PARTISAN POLITICS,AND RACIAL DISPARITIES IN PRISON ADMISSIONS: A PANEL ANALYSIS*

Why are racial disparities in imprisonment so pronounced? Studies of alternative outcomes in the criminal justice system find positive relationships between minority presence and punitive outcomes. Therefore, it is puzzling that the studies of racial incarceration ratios find negative relationships between this presence and such discrepancies. We use a pooled time‐series design to resolve this dilemma. Successful Republican attempts to link crime with public concerns about a dangerous racial underclass also suggest that where these racial appeals are successful, African Americans should face higher incarceration rates than whites. In contrast to prior research, our results are consistent with findings about other criminal justice outcomes. They show that an inverted, U‐shaped, nonlinear relationship is present between African‐American presence and racial disparities in imprisonments. Additional results indicate that the presence of African Americans in deep southern states and greater support for Republican presidential candidates together with increases in the most menacing crime (which often is blamed on African Americans) also help to explain these discrepant racial prison admission rates.     

Capital punishment in two judicial circuits in Georgia

This article describes the process of decision making in caital cases in the overwhelmingly White justice system in two Georgia judicial circuits under Georgia's post-Furman death penalty statute. The study is intended to complement the statistical analyses done by other researchers in this area, by linking the behavior of various actors in the process over time to the incentives and sanctions of the system. The study shows how the system works to produce racial disparities and discrimination. Possible explanations for racial disparities and discrimination are examined.     

Demography of the Legal Profession and Racial Disparities in Sentencing

The demography of the legal profession has changed rather dramatically in recent decades, yet the consequences of a more racially and ethnically diverse pool of lawyers for the administration of justice have not received significant attention. The present research examines how the racial composition of the local legal profession affects one facet of criminal law: the sentencing of convicted defendants. Building on prior work in the fields of law, stratification, and mobility, we hypothesize that racial and ethnic disparities in sentencing are mitigated where the legal profession is more diverse. In line with this hypothesis, analysis of data from a sample of large urban counties taken between 1990 and 2002 shows that the black-white racial disparity in sentencing attenuates as the number of black attorneys in the county increases, net of the percent black in the county and other possible confounding variables. Comparable results are found for Hispanics. The findings are discussed in the context of a demographically changing legal profession and prior work on racial disparities in the justice system.     

From Bail to Jail: The Effect of Jail Capacity on Bail Decisions

One of the more important decisions made by judges in the criminal justice system is the bail decision. Factors that judges take into consideration when making a bail decision, such as seriousness of the offense, flight risk, and public safety, are typically seen by researchers as the primary determinants of such a decision. However, one aspect that researchers have not studied extensively—rated jail capacity – could play an important role in a judge’s decision. Overcrowding in jails leads to numerous problems, both for the offender and the system itself, so judges may be more willing to release offenders into the community during the pretrial period if the local jails are overcrowded. The current study examines the effect of rated jail capacity on decisions regarding bail amounts, release on recognizance (ROR), financial release, and conditional release in eight Florida counties. Results indicate that rated jail capacity plays a role in judges’ bail decisions, suggesting that judges are concerned about housing more pretrial offenders in crowded jails.     

'An Unfortunate Coincidence': Jews and Jewishness in Twentieth-century English Judicial Discourse

This paper explores the neglected area of representations of Jews and Jewishness in English legal cases. In considering judicial knowledge of ‘the Jew’, I ask three primary questions. First, how do English judges understand and represent ‘the Jew’ and in relation to what material factors do these understandings and representations change? Second, how do English judges construct racial knowledge, what rhetorical technologies are fashioned and deployed? Third, are the effects of contemporary judicial racializations of Jewishness different in substance from earlier ones? The purpose of this paper is to study the encounter between English judges and ‘the Jew’ in the twentieth century, eschewing a reading that centres ‘antisemitism’ or ‘discrimination’ in favour of one that focuses on the complex and contradictory narratives in these judgments and the kinds of work these narratives do.     

DOES IMPRISONMENT ALTER THE LIFE COURSE? EVIDENCE ON CRIME AND EMPLOYMENT FROM A NATURAL EXPERIMENT

Ex‐prisoners consistently manifest high rates of criminal recidivism and unemployment. Existing explanations for these poor outcomes emphasize the stigmatizing effects of imprisonment on prisoners seeking postrelease employment as well as the deleterious effects of imprisonment on prisoners’ attitudes and capabilities. However, these explanations must be distinguished from selection effects in the criminal sentencing process, which also could explain some or all of these poor outcomes. To distinguish between criminogenic and selection explanations for ex‐prisoners’ postrelease experience, I analyze data from a natural experiment in which criminal cases were assigned randomly to judges with sizable sentencing disparities. Using these exogenous sentencing disparities, I produce unbiased estimates of the causal effects of imprisonment on the life course. The results of this analysis suggest that selection effects could be sufficiently large to account for prisoners’ poor postrelease outcomes because judges with large sentencing disparities in their use of imprisonment had similarly high caseload unemployment and criminal recidivism rates.     

Racial and ethnic disparity in pretrial criminal processing

This study uses data on the processing of felony defendants in large urban courts to analyze racial and ethnic disparities in pretrial processing. There are three major findings. First, racial disparity is most notable during the decision to deny bail and for defendants charged with violent crimes. Second, ethnic disparity is most notable during the decision to grant a non‐financial release and for defendants charged with drug crimes. Third, when there is disparity in the treatment of Black and Latino defendants with similar legal characteristics, Latinos always receive the less beneficial decisions. These findings are consistent with the theoretical perspective offered, which suggests that stereotypes influence criminal processing when their specific content is made salient by either the concerns relevant to a particular processing decision or the crime type of a defendant’s primary charge.