Does Mandatory Diversion to Drug Treatment Eliminate Racial Disparities in the Incarceration of Drug Offenders? An Examination of California’s Proposition 36

Objective

This paper addresses previous shortcomings in the literature on racial disparities in incarceration for drug offenders by taking advantage of a change in sentencing policy in California and a rich administrative dataset that is able to create a sample of comparable White and Black offenders.

Method

We use a nonparametric propensity weighting approach to identify similarly situated White and Black male offenders charged with drug-related offenses. We combine this approach with a difference-in-differences model to estimate the effect that a change in California sentencing law for convicted non-violent drug offenders had on racial disparities in prison and drug treatment dispositions.

Results

We find substantial reductions in the probability of a prison sentence after the policy change, but not differentially for Blacks. Blacks remain more likely to go to prison than similarly situated Whites after the policy, although the policy does lead to more referrals to treatment for Blacks.

Conclusions

This paper shows that even after comparing Blacks and Whites in similarly situated contexts that racial disparities in prison commitments remain after sentencing law changes that mandate diversion to drug treatment. The results suggests that addressing racial gaps in the commitments to state prisons will likely require more than shifting the eligibility of drug convictions for prison, as accumulated criminal histories are the primary driver of prison sentences. This means that expanding diversion options from prison alone will not reduce the racial gap in commitments to prison for drug offenses more than incrementally.

     

Too Many Black Men: The Sentencing Judge's Dilemma

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.     

Incarceration, Health, and Racial Disparities in Health

This article addresses two basic questions. First, it examines whether incarceration has a lasting impact on health functioning. Second, because blacks are more likely than whites to be exposed to the negative effects of the penal system—including fractured social bonds, reduced labor market prospects, and high levels of infectious disease—it considers whether the penal system contributes to racial health disparities. Using the National Longitudinal Survey of Youth and both regression and propensity matching estimators, the article empirically demonstrates a significant relationship between incarceration and later health status. More specifically, incarceration exerts lasting effects on midlife health functioning. In addition, this analysis finds that, due primarily to disproportionate rates of incarceration, the penal system plays a role in perpetuating racial differences in midlife physical health functioning.     

The Unintended consequences of sentencing reforms: Using social chain theory to examine racial disparities in Female imprisonment

The current study uses social chain theory to examine the potential unintended effects of sentencing reforms on racial disparities in female imprisonment. Our analysis measures changes in the relative odds of Black to White female imprisonment using the Relative Rate Index (RRI) through panel regression modeling on 40 states from 1983 to 2008. Our final models indicate that four types of sentencing reforms had unintended perverse effects on racial disparities in prison admissions while Truth in Sentencing laws increased racial disparities in time-served. Eighteen combinations of sentencing reforms also significantly impacted disparities. Theoretical and policy implications are also discussed.     

Institutionalizing inequality in the courts: Decomposing racial and ethnic disparities in detention,conviction, and sentencing*

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 nonlinear 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.     

Sentencing Female Drug Offenders: Reexamining Racial and Ethnic Disparities

This study analyzes the relationship between race/ethnicity and sentencing outcomes for female drug offenders in Florida. Grounded in the focal concerns perspective, the research examines whether, in the specific case of drug offenders, minority women are treated more harshly than White women. Interaction models are estimated to determine the influence of drug offense type on racial and ethnic sentencing disparities. Differences in sentencing outcomes are also examined following significant policy changes in the state. In general, the findings suggest that minority female drug offenders are disadvantaged at both the incarceration and sentence length decisions. It also appears that perceptions of dangerousness associated with female offenders' race/ethnicity and offense are incorporated into sentencing authorities' patterned responses. That is, the level of disparity between Black, Hispanic, and White females is conditioned by type of drug offense in the interaction models. The changes in sentencing policy also impact the role of race and ethnicity in sentencing decisions. By analyzing drug offenders exclusively, the current study clarifies the role of race in sentencing decisions for females. In contrast to prior research that examined all offense categories together, the current study suggests that for drug offenses, minority females may, in fact, be deemed more dangerous and culpable than White female drug offenders.     

Split sentencing in georgia: A test of two empirical assumptions

Recent research on felony sentencing in the nation's trial courts has highlighted a type of sentence in which a prison term is coupled with a probation period. Under these so-called “split sentences,” convicted felons serve a term of incarceration, are released (possibly) on parole, and eventually come under the concurrent jurisdiction of both parole and probation authorities. Although such a sentence may serve a variety of purposes, it is at least conceivable that judges use the prison/probation combination as a way to respond to prison overcrowding and public pressure for punitiveness.

This article reports a study of split sentencing in Georgia from 1976 to May 1985. Drawing on more general research on felony sentencing in the state's Superior Courts, the authors test two empirical assumptions about split sentencing: (1) the perception that split sentencing has increased over time and (2) the importance of the total term (i.e., the prison/probation combination) over the actual severity (i.e., the time specified for incarceration). These assumptions surfaced in extended interviews with court and community authorities in selected judicial circuits across the state.

The empirical tests of these two assumptions consist of an examination of aggregate sentencing patterns and multivariate analyses of two conceptions of the split sentence. The data provide limited support for the two empirical assumptions. There was no evidence that felony courts in Georgia had increased their reliance on split-sentence terms. Aggregate evidence, however, suggested that judges might use split sentencing as a way to balance the competing pressures of prison overcrowding and the demand for punitiveness. Multivariate analyses offer mixed support for propositions on the importance of the total term. The study concludes with a consideration of the implications for public policy and for research on racial discrimination, sentencing, and trial court processes in general.     

RACIAL AND ETHNIC DISPARITIES IN SENTENCING DEPARTURES ACROSS MODES OF CONVICTION*

Recent analyses of guideline sentencing practices have demonstrated that sentences departing from guidelines serve as a significant locus of racial/ethnic and other extralegal disparity. Little is known, however, about the ways that different courtroom processes, such as modes of conviction, condition these effects. Using recent data from the Pennsylvania Commission on Sentencing (PCS), I analyze the overall effects of race/ethnicity and other factors on judicial decisions to depart from the sentencing guidelines, and then I reexamine these relationships according to four modes of conviction (non‐negotiated pleas, negotiated pleas, bench trials, and jury trials). I argue that the mode of conviction provides a useful indicator of the differential exercise of discretion by different courtroom actors in the sentencing process. As such, it is likely to condition the use of stereotypical patterned responses, thus moderating the effects of race/ethnicity and other relevant sentencing factors. Findings support this expectation, demonstrating that extralegal effects vary considerably across modes of conviction. These results raise important questions about the role of different courtroom actors in contributing to racial and ethnic disparities under sentencing guidelines.     

Sentencing and State‐Level Racial and Ethnic Contexts

Sentencing studies have incorporated social context in studying sentencing decisions, but to date the bulk of prior work has focused almost exclusively on county context. An unresolved question is whether there also may be state‐level effects on sentencing. Drawing from the minority threat perspective, we examine (1) whether state‐level racial and ethnic contexts affect sentencing, (2) whether this effect amplifies the effect of county‐level racial and ethnic contexts on sentencing, and (3) whether the interaction of county‐level and state‐level contextual effects is greater for minorities than for whites. Analysis of State Court Processing Statistics and other data indicates that state‐level racial and ethnic contexts are associated with sentencing outcomes and that this effect may differ by outcome (e.g., incarceration versus sentence length) and by type of context (e.g., racial or ethnic). The study's findings and their implications are discussed.     

Sentencing Female Misdemeanants: An Examination of the Direct and Indirect Effects of Race/Ethnicity

Little is known about the predictors of sentencing for the typical female offender—one who commits a misdemeanor or lesser offense. Moreover, although ample discussions of racial/ethnic disparity in sentencing may be found in the extant literature, most researchers have focused on what happens to males who commit felonies. Thus, to help fill a void I examine the likelihood of receiving a jail sentence among a sample of cases for female misdemeanants. All were convicted in New York City's Criminal Court. I account for direct and indirect effects by estimating a causal model that predicts the sentencing outcome. Race/ethnicity did not directly affect sentencing. Indirect effects, however, were found. Black and Hispanic females were more likely to receive jail sentences than their White counterparts due to differences in socio‐economic status, community ties, prior record, earlier case processing, and charge severity.     

Driving racial profiling research forward: Learning lessons from sentencing research

Discretion is an integral component of the criminal justice system and is exercised by both police and the judiciary. Based on the extant research, evidence of racial/ethnic disparities within the context of traffic stops and sentencing decisions has been documented. Due to its long history of inquiry, sentencing research has developed a more thorough understanding of disparity and its correlates. This article contends that racial profiling research could expedite its development by learning from the history of sentencing research. Specifically, the extant research on sentencing decisions has demonstrated the value and utility of theory and methods as pillars of knowledge development. Therefore, progress in racial profiling research is most likely accomplished by employing similar theoretical frameworks and appropriate quantitative and qualitative approaches.     

Toward a Demographic Understanding of Incarceration Disparities: Race,Ethnicity, and Age Structure

Objectives

Non-Hispanic blacks and Hispanics in the United States are more likely to be incarcerated than non-Hispanic whites. The risk of incarceration also varies with age, and there are striking differences in age distributions across racial/ethnic groups. Guided by these trends, the present study examines the extent to which differences in age structure account for incarceration disparities across racial and ethnic groups.

Methods

We apply two techniques commonly employed in the field of demography, age-standardization and decomposition, to data provided by the Bureau of Justice Statistics and the 2010 decennial census to assess the contribution of age structure to racial and ethnic disparities in incarceration.

Findings

The non-Hispanic black and Hispanic incarceration rates in 2010 would have been 13–20 % lower if these groups had age structures identical to that of the non-Hispanic white population. Moreover, age structure accounts for 20 % of the Hispanic/white disparity and 8 % of the black/white disparity.

Conclusion

The comparison of crude incarceration rates across racial/ethnic groups may not be ideal because these groups boast strikingly different age structures. Since the risk of imprisonment is tied to age, criminologists should consider adjusting for age structure when comparing rates of incarceration across groups.

     

Determinate sentencing, formal rationality, and khadi justice in Maine: An application of Weber's typology

In the 1980s over twenty-five jurisdictions, including Maine, changed their sentencing policies. Nevertheless, only a few states approximated the goal of determinancy proposed by advocates of reform. Recent extensions of Weber's work on law finding to the area of punishment provide a means to reconceptualize the problem addressed by advocates of determinacy. This article refocuses debates about sentencing reform in terms of Weber's concept of formal rationality.It explains why one state—Maine—did not reduce judicial disparities and why determinacy failed to be introduced. Sentences from an experiment conducted among all members of Maine's judiciary are compared with guideline sentences in two states—Minnesota and Pennsylvania. This comparison clearly supports national criticism of Maine's failure to reduce judicial disparities in sentences. It is concluded that widespread sentencing disparities in Maine result from a criminal code legitimating substantively irrational decisionmaking or khadi justice. No attempt was made to move toward a formally rational system advocated by proponents of determinacy.     

Punishing the Wicked: Examining the Correlates of Sentence Severity for Convicted Sex Offenders

Objectives

To examine the correlates of sentence severity for convicted sex offenders under sentencing guidelines, contrasted with individuals convicted of non-sexual, violent offenses.

Methods

Drawing on 7 years of data from the Pennsylvania Commission on Sentencing, we utilize a logit-negative binomial hurdle model to examine the predictors of incarceration and sentence length, and an accompanying Oaxaca–Blinder decomposition of the gap in sentencing outcomes between the groups. We then implement a quantile regression framework to examine variation in effects across the distribution of sentence lengths. All analyses are contrasted with a matched sample of violent offenders to consider the extent to which estimated associations are unique to sex offenders.

Results

The analyses suggest several predictors of sentence severity for sex offenders, and that these predictors vary between the incarceration and sentence length decisions. In comparing effects for sex and matched violent offenders, divergent effects were observed for both case and offender characteristics. An Oaxaca–Blinder decomposition suggests that differences in the coefficient estimates account for less than one-fifth of the gap in average sentencing outcomes between sex and violent offenders. Subsequent quantile regressions indicate that these effects vary considerably over the sentence length distribution in ways that are not captured or obscured by the hurdle models.

Conclusions

The predictors of sentence severity for sex offenders, and points of divergence from violent offenders, are congruent with the notion that judges utilize crime-specific stereotypes in arriving at sentencing decisions. Further, the application of quantile regression following point-based estimation can reveal meaningful patterns in sentencing disparities.

     

“BACK-END SENTENCING” AND REIMPRISONMENT: INDIVIDUAL,ORGANIZATIONAL, AND COMMUNITY PREDICTORS OF PAROLE SANCTIONING DECISIONS*

An understudied contributor to the massive growth of American incarceration is an increase in the practice of reimprisoning parolees through parole board revocations—now referred to as “back-end sentencing.” To conduct the analyses outlined in this article, we use data from the California Parole Study to analyze the effects of three clusters of factors (parolees' characteristics, organizational pressures, and community conditions) on these sentences. Our analyses are informed by theories that have been used to explain “front-end” (court) sentences, which center on the focal concerns of social-control agents, labeling, and racial threat. Our results indicate that status characteristics—race/ethnicity and gender—affect the likelihood that criminal parole violators are reimprisoned. Moreover, certain “pivotal categories” of parolees—registered sex offenders and those who have committed “serious” or “violent” offenses—are much more likely to be returned to prison than others. Organizational pressure (prison crowding) also affects the likelihood of reimprisonment. Communities' political punitiveness affects the likelihood that technical violators are reimprisoned and that serious or violent offenders are reimprisoned for criminal violations. In this article, we use these findings to consider ways that mass incarceration is driven by both top-down policies as well as bottom-up organizational and community forces.     

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.     

Hidden Disparities: Decomposing Inequalities in Time Served in California, 1985–2009

While a large literature establishes the racial and ethnic disparities in sentencing, we know comparatively little about the role of race and ethnicity in prison release. Using data from the National Corrections Reporting Program contextualized in California's political and legislative atmosphere, this article explores the role of race and ethnicity in prison release between 1985 and 2009 by studying components of sentencing and release. Limiting the evaluation of disparities to sentencing or time served in prison at release may inadvertently mask racial and ethnic inequities in the judicial process because events and actors can introduce circumstances between sentencing and release from prison that ultimately influence time served. The analysis confirmed that the measures used at the time of sentencing do not provide enough information to determine the differential experiences of groups in the real amount of time served in prison.© 2014 Law and Society Association     

Social context and racial disparities in punishment decisions

Although the social context of a court is often claimed to be important to understanding the effect of the offender's race on punishment decisions, the links between context and racial disparities in punishment decisions are not well understood. I propose and test four hypotheses involving elements that may link social context to racial disparities in punishment decisions: urbanization, racial threat, economic threat, and crime control. I test these four hypotheses with sentencing data from the Pennsylvania Commission on Sentencing for the period 1991 to 1994. The main findings are as follows: (1) punishment severity varies by court jurisdiction, even after controlling for offender and case characteristics; (2) racial disparities vary by court jurisdiction, with controls for other offender and case characteristics; (3) measures of social context explain little of the contextual variation in punishment decisions for all offenders; and (4) measures of social context do not explain racial disparities in punishment decisions. Thus, I find convincing evidence of contextual variation in punishment decisions, but typical indicators of social context do not explain these variations.     

Of Race,Prison, and Perception: Seeking to Account for Racially Divergent Views on the Relative Severity of Sanctions

Several studies have found that offenders do not always perceive prison to be a harsher sanction than community-based punishments. Moreover, the literature shows that white offenders tend to estimate prison to be relatively more severe than do black offenders. The present study develops and tests eight possible explanations for the observed racial gap in perceptions. Relying on survey data from inmates in a large urban jail to establish sentencing preferences for black and white inmates, multivariate analyses show that the racial gap was attenuated but not eliminated by the explanations. This persistent racial difference in opinions of sanction severity is consistent with differential perceptions of criminal justice system fairness and merits additional research. The race gap has implications for theories on the effects of incarceration as well as sentencing practice.     

SENTENCING HOMICIDE OFFENDERS IN THE NETHERLANDS: OFFENDER,VICTIM, AND SITUATIONAL INFLUENCES IN CRIMINAL PUNISHMENT*

Empirical investigations of criminal sentencing represent a vast research enterprise in criminology. However, this research has been restricted almost exclusively to U.S. contexts, and often it suffers from key data limitations. As such, an examination of more detailed international sentencing data provides an important opportunity to assess the generalizability of contemporary research and theorizing on criminal punishment in the United States. The current study investigates little-researched questions about the influence of prosecutorial sentencing recommendations, victim/offender relationships, and extralegal disparities in sentencing by analyzing unique data on the punishment of homicide offenders in the Netherlands. The results indicate that offender, victim, and situational offense characteristics all exert important independent effects at sentencing and that prosecutorial recommendations exert powerful influences over judicial sentences. The article concludes with a discussion of future directions for comparative sentencing research across international contexts.