Gender dynamics in the sentencing of white-collar offenders

Theory and empirical research often have agreed that female and white-collar offenders benefit from leniency at the sentencing stage of criminal justice system processing. An untested research question emerging from these distinct bodies of literature is whether the greatest leniency is afforded to female white-collar offenders. We investigate the individual and interactive influences of gender and white-collar conviction on judicial leniency by analyzing Florida sentencing guidelines data from 1994 to 2004 using multinomial logistic regression to model the decision to incarcerate nonviolent economic offenders in jail or prison rather than sentence them to community control. Results indicate that female street offenders sentenced by male judges receive the most lenient sentences, while male offenders are punished the harshest regardless of the gender of the sentencing judge or type of crime. Theoretical and policy implications of the findings are discussed in terms of focal concerns, familial paternalism, and attributional perspectives on judicial decision-making.     

THE JUVENILE PENALTY: A COMPARISON OF JUVENILE AND YOUNG ADULT SENTENCING OUTCOMES IN CRIMINAL COURT*

This study uses criminal court data from the Pennsylvania Commission on Sentencing (PCS) to investigate the sentencing of juvenile offenders processed in adult criminal court by comparing their sentencing outcomes to those of young adult offenders in similar situations. Because the expanded juvenile exclusion and transfer policies of the 1990s have led to an increase in the number of juveniles convicted in adult courts, we argue that it is critical to better understand the judicial decision making processes involved. We introduce competitive hypotheses on the relative leniency or severity of sentencing outcomes for transferred juveniles and interpret our results with the focal concerns theoretical perspective on sentencing. Our findings indicate that juvenile offenders in adult court are sentenced more severely than their young adult counterparts. Moreover, findings suggest that juvenile status interacts with and conditions the effects of other important sentencing factors including offense type, offense severity and prior criminal record. We discuss these results as they relate to immediate outcomes for transferred juveniles, criminal court processes in general and the broader social implications for juvenile justice policy concerning the transfer of juveniles to criminal court.     

Legal,Psychological, and Behavioral Outcomes

States have responded to the public's outrage at rising juvenile crime by revising their transfer statutes to make it easier to transfer juvenile offenders for trial and sentencing in criminal court and possible incarceration in adult prisons. These changing trends in juvenile justice raise three questions about what actually happens to juveniles once they are in the adult criminal justice system. To what extent does trial in adult court and/or incarceration in adult prisons promote or retard community protection, juvenile offenders' accountability, and the development of competencies in juvenile offenders? This article discusses state transfer laws and the legal consequences of criminal court prosecution, and analyzes current research on deterrence effects of transfer laws, conviction and sentencing in juvenile versus criminal court, recidivism rates in juvenile versus criminal court, and conditions and programming in juvenile versus adult correctional facilities. The research findings have two important implications for juvenile justice policy: the number of juvenile cases transferred to criminal court should be minimized, and imprisonment of juveniles in adult facilities should be avoided whenever possible. These implications are discussed, and directions for future research are identified.     

Class, Status, and the Punishment of White-Collar Criminals

The treatment of white-collar offenders by the criminal justice system has been a central concern since the concept of white-collar crime was first introduced In general, it has been assumed that those higher up the social hierarchy have an advantage in every part of the legal process, including the punishment they receive as white-collar criminals. In a controversial study of white-collar crime sentencing in the federal district courts, Wheeler, Weisburd, and Bode contradicted this assumption when they found that those of higher status were more likely to be imprisoned and, when sentenced to prison, were likely to receive longer prison terms than comparable offenders of lower status. While they argued that results were consistent with "what those who do the sentencing often say about it," their analyses failed to control for the role of social class in the sentencing process. In this article we reanalyze the Wheeler et al sentencing data, including both measures of socioeconomic status and class position. Our findings show that class position does have an independent influence on judicial sentencing behavior. But this effect does not demand revision in the major findings reported in the earlier study.     

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.     

The ‘Usual Suspects’

Abstract

A key issue in contemporary criminology is the role that social status, and particularly race, plays in legal processes. Previous research suggests that criminal justice proceedings-including arrest, conviction, and sentencing rates-are influenced by victim and offender race, but rarely examines the role of race in reporting events to the police. The following research uses data from the rape sub-sample of the National Crime Victimization Survey of households 1992-2001; logistic regression analyses are conducted to determine how victim and offender race influence reporting of rape to the police, controlling for other incident characteristics. The findings suggest that rapes with a Black perpetrator are much more likely to be reported to police, regardless of whether the victim is white or Black.     

Crime: The amount and disparity of sentencing – A comparison of corporate and occupational white collar criminals

Research carried out previously, aimed at examining differences in the length of the sentencing and type of offence, have typically compared white collar and street criminality. The main aim of the current study is to examine the differences in sentence length for white collar occupational and corporate offenders from street crime offenses and to identify which factors eventually could explain such differences. The crime amount was smaller in occupational convictions despite the fact that the average crime amount was significantly less in this group compared to the crime amount among corporate criminals. Socioeconomic status and company size were not found to be associated with the length of the sentence. We discuss whether the difference in length of the sentence could be explained by the fact that occupational crime is committed for the criminals' own purposes or enrichment, while this is often not the case among corporate criminals.     

论量刑程序的独立性——一种以量刑控制为中心的程序理论

中国现行刑事审判制度确立了定罪与量刑一体化的程序模式,主流的诉讼理论也是以定罪控制为中心确立起来的。然而,法院的量刑依据与定罪依据有着明显的差异,在缺乏诉权制约的情况下,量刑裁决存在着滥用自由裁量权的可能性。只有将量刑与定罪在程序上分离开来,并使其具有基本的诉讼形态,公诉权才可以从单纯的定罪请求权发展出量刑建议权的内涵,被告人的量刑辩护才可以成为独立的辩护形态,被害人的量刑参与权才可以得到充分的保证,那种以量刑控制为中心的证据规则也才可以得到建立。为有效制约法院在量刑上的自由裁量权,确保量刑程序的公正性,量刑程序有必要从现行审判制度中独立出来。     

Sympathy for the Devil: An Exploration of Federal Judicial Discretion in the Processing of White-Collar Offenders

Since the late 1990s, the United States has experienced a series of major corporate malfeasance events leading to the collapse of corporations such as Worldcom and Enron, predatory lending practices which devastated the nation’s real estate market and the Bernie Madoff scandal serving as prime examples. While the leading culprits in such well-publicized cases have met stiff sanctions, the common notion is that white-collar offenders are treated more leniently than street offenders by the criminal justice system. Given the scope and severity of victimization attributable to the contemporary white collar crime epidemic, the matter of sanctioning fairness and severity is of timely importance. This paper examines judicial discretion in the form of the decision to incarcerate and the length of sentences imposed for federal white collar and street level offenders. Findings inform discussion oriented around the related issues of deterrence and public safety.     

论量刑证据独立性的基础

受同态复仇的量刑模式影响，法定化量刑在相当长历史时期内存在。其导致刑事审判基本多集中于如何定罪，形成了服务于定罪，以定罪证明为中心的传统刑事证据法。量刑的精细化和传播的大众化，使得量刑公正和量刑均衡的重要性逐渐凸显．从而为量刑证据从幕后走向台前提供历史机遇。量刑的目标追求和指导原则是量刑事实特殊性的基础．量刑事实构成的...     

Judges’ sentencing decisions with older offenders

Older offenders tend to be treated with more leniency in the criminal justice system. A number of studies show that older offenders are less likely to be incarcerated, and when they are incarcerated, are more likely to receive shorter sentences. However, to date, no research has directly examined why such leniency occurs. This study asked U.S. state trial court judges to reflect on their sentencing practices with older offenders and to rate the factors considered most important when sentencing this population. Responses were received from 212 judges. Only 31% of judges acknowledged treating older offenders with greater leniency. These judges also indicated that they predominantly rely on legal factors when making decisions about sentencing with older offenders rather than factors specifically associated with age. Only cognitive impairment was identified by judges as one of the five most important factors to consider when sentencing older offenders. These results are discussed in terms of judges’ awareness of how they weigh information to make legal decisions. The influence of judges’ age and attitudes about aging on sentencing decisions are also explored.     

量刑与定罪互动论:为了量刑公正可变换罪名

现行刑法理论中定罪与量刑的关系被扭曲了,刑法理论把准确定罪置于至高无上的地位,司法机关把大量精力耗费于准确判断罪名,定罪决定量刑、量刑不可能影响罪名成为刑法公理。但是,判断罪名意义上的定罪,并非刑法的目的;对被告人和社会最有意义的是量刑,判断罪名只是为公正量刑服务的;因此,如果常规判断的罪名会使量刑失当,就可以为了公正量刑而适度变换罪名。     

Hukou Status and Sentencing in the Wake of Internal Migration: The Penalty Effect of Being Rural‐to‐Urban Migrants in China

While the disparate legal treatment of immigrants in Western jurisdictions has been well documented in sociolegal scholarship, the potential legal inequality experienced by rural‐to‐urban migrants in China, who have become China's largest disadvantaged social group, has not garnered much attention. To fill the gap, this article empirically examines sentencing disparities related to the Hukou status of criminal offenders by employing quantitative data on criminal case processing in China. The results of our analysis reveal that rural‐to‐urban migrant defendants are more likely to be sentenced to prison than their urban counterparts. In addition, the penalty effect of being a rural‐to‐urban migrant is further magnified in jurisdictions with a larger concentration of migrants. Our findings suggest that discrimination against rural‐to‐urban migrants has become an emerging, significant form of legal inequality in China's criminal justice system, refracting and reinforcing the deep‐seated structural inequality associated with Hukou status in China. The research and policy implications of these findings are discussed.     

Incorporating Co-offending in Sentencing Models: An Analysis of Fines Imposed on Antitrust Offenders

Analyses of sentencing (and other criminal justice processes such as the decision to prosecute, plea bargaining, and contact with the police) often use the isolated individual as the unit of analysis. However, the criminal justice system often processes either offenses or court cases rather than persons. If court cases always involved one individual, this would have little impact. However, offenses involving co-offending—two or more persons acting together—comprise a substantial proportion of criminal activity (Reiss, 1980, 1986). Depending on the prevalence of co-offending, it may be very likely that two or more individuals involved in the same case will be selected as members of the same sample of criminal justice or criminological data. Unless it can be shown that both the individual-level variables of co-offenders and their error terms are mutually independent, analyses based on methods such as ordinary least-squares multiple regression would violate the underlying assumptions of such models. However, alternatives to linear models assuming either type of independence are available. Among the most useful of these are mixed models, specifically those assuming compound symmetry. This is illustrated with an analysis of fines imposed on criminally convicted antitrust offenders. These models may yield results which are substantially different than those from models which ignore co-offending. In a model of fines imposed on antitrust offenders, models which ignore co-offending generally overstate both estimates and statistical significance of offense-level variables and understate those of offender-level variables.     

"CLUB FED" AND THE SENTENCING OF WHITE-COLLAR OFFENDERS BEFORE AND AFTER WATERGATE

This paper counterposes the common assumption that criminal justice systems are resistant to reform with the widespread belief that the sentencing of white-collar offenders became more severe after Watergate. It is argued that readjustments may be more more common than actual reforms in criminal justice systems. This paper provides an example of how such processes of readjustment can be explored in the context of sentencing decisions made before and after the unique historical experience of Watergate. It is shown with data from one of America's most prominent federal district courts that changes did occur in sentences imposed before (in 1973) and after (1975) Watergate, but with offsetting results: after Watergate, persons convicted of white-collar crimes were more likely to be sentenced to prison, but for shorter periods of time, than less-educated persons convicted of common crimes. Using a technique that corrects for sample selection processes, these effects are shown to cancel one another out. Examples are provided of the token kinds of prison sentences assigned after Watergate to white-collar offenders in several highly publicized cases and areas of enforcement.     

Questioning mandatory sentencing efficiency: A case study of persistent felony offender rapists in Kentucky

This policy analysis explores the incapacitative efficiency of Kentucky’s career criminal statute in averting the recidivism of offenders convicted of rape. The study utilizes a 1985 cohort of Kentucky persistent felony offenders with at least one rape conviction (n = 62) and tracks recidivism rates up to fifteen years later. The results question the efficiency of mandatory sentencing. In general, mandatory minimum sentences (where offenders are not eligible for statutory good time or parole) kept these offenders incarcerated beyond the time necessary to avert future crimes.     

Impact of Information About Sentencing Decisions on Public Attitudes Toward the Criminal Justice System

Research reveals public dissatisfaction with perceived leniency of the criminal justice system. However, when asked to sentence hypothetical offenders, members of the public tend to choose dispositions similar to what current court practices prescribe. In two studies reported here, subjects completed a mock sentencing exercise and a general attitude survey. In an initial pilot study, they expressed general dissatisfaction with the criminal justice system but the relative punitiveness of their sentences (in terms of their perceptions of how severe various sentencing options are) was only slightly elevated above a set of reference sentences. Providing a typical judge's sentencing decisions did not decrease dissatisfaction but was associated with an anchoring effect. This effect was explored in the main study by manipulating the provided reference sentences to be either lenient, moderate, or punitive. Again, participants expressed general dissatisfaction with the criminal justice system but prescribed generally moderate sentences, anchoring their sentences to the information provided. However, only those exposed to moderate typical sentences subsequently reported reduced dissatisfaction with the criminal justice system.     

Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack‐Cocaine and Powder‐Cocaine Cases

Recently there has been a call for research that explores decision‐making at stages prior to sentencing in the criminal justice process. Particularly research is needed under a determinate sentencing system where judicial dispositions are usually restricted by guidelines, which increases the importance of earlier decision‐making stages. As an answer to this call, and in an attempt to build on currents studies on the effects of departures as an intervening mechanism, and a source of unwarranted disparity, this study explores federal sentencing data on offenders convicted of crack‐cocaine and powder‐cocaine offenses. Although decision‐making of all criminal justice actors generally, and prosecutors specifically, has been the subject of much research, studies have yet to resolve the nature and outcome of their “autonomous” discretion. This autonomy becomes especially salient regarding prosecutorial decisions for substantial assistance departures. In deciding who receives a substantial assistance departure, the prosecutor has carte blanche power.     

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。     

Rethinking the Boundaries of Intimacy at the End of the Century: The Role of Victim-Defendant Relationship in Criminal Justice Decisionmaking Over Time

I investigate whether the degree of intimacy between victims and defendants affects legal responses to violence and how this association has changed over time. Using data on homicides between 1974 and 1996, I examine court outcomes in more than 1,000 cases. I demonstrate that intimacy matters at three criminal justice stages: charging, mode of conviction, and sentencing. However, moving beyond the traditional conceptualization of intimacy, I show that defendants who kill intimates do not always receive the same treatment, nor are all defendants who kill nonintimates treated similarly. Finally, I show that criminal justice leniency toward intimate violence is less evident in recent years.