Criminal justice decision making as a stratification process: The role of race and stratification resources in pretrial release

Our purpose is to bridge the criminal justice and stratification research literatures and to pursue the argument that homologous structural principles stratify allocation processes across central institutions of American society. The principle observed here in the making of bail decisions, as in earlier studies of the allocation of earnings, is that stratification resources operate to the greater advantage of whites than blacks. The operation of this principle is established through the estimation of covariance structure models of pretrial release decisions affecting 5660 defendants in 10 federal courts. Education and income are treated in this study as observed components of a composite construct, stratification resources, which works to the greater advantage of whites. Prior record is also found to operate to the greater advantage of whites. Two further variables, dangerousness and community ties, increase bail severity among blacks and whites. While the effect of community ties has been legally legitimized since the Bail Reform Act of 1966, the effect of dangerousness was not so legitimized until the Bail Reform Act of 1984. However, because our data precede the latter act, they confirm that this act simply reinstitutionalized earlier practice. Meanwhile, our race-specific findings may explain why although this and earlier studies find negligible main effects of race on criminal justice outcomes, black Americans nonetheless perceive more criminal injustice than do whites. In the criminal justice system, as in other spheres of American society, whites receive a better return on their resources, but our findings that the statutory severity of the offense and dangerousness work to the relative disadvantage of white defendants challenges conflict and labeling theory's one-dimensional characterization of black defendant disadvantage.     

Juror decision making

Much of the research on juror decision making is concerned with whether jurors are swayed by irrelevant-or extralegal-issues in their judgments of defendants. Such studies examine whether jurors' attitudes and victims' and defendants' characteristics have a measurable impact on these decisions. Yet, in the typical study, evidential issues are either poorly measured or ignored, hence the effects of extralegal issues may be exaggerated. Moreover, jury simulations are often chosen to study these questions despite critics' concerns about the generalizability of the results. The present study uses data gathered from actual jurors to assess whether the emphasis on juror competence is justified. The results indicate that these jurors' decisions are dominated by evidential issues, particularly evidence concerning the use of force and physical evidence. Jurors were considerably less responsive to characteristics of victims and defendants, although some of these factors significantly affected their decisions.The research reported here was supported by the National Institute of Mental Health under grant No. R01 MH29727 and the National Institute of Justice under grant No. 82-IJ-CX-0015. The author would like to thank Douglas Smith, Barbara Reskin, and Lowell Hargens for helpful comments on earlier drafts.     

Jurors' interpretations and jury decision making

In arriving at their verdicts, jurors must determine what really happened in the case at hand. Their interpretations then guide their decision making and become influential in the group deliberation process. This article uses conversational data from simulated jury deliberations to describe jurors' practice of articulating schematic interpretations as accounts for their verdict choices, and as means for persuading other jurors. As jurors contribute additional interpretations during deliberations, the group decision-making task becomes more complex, deliberations las longer, and they are more difficult to resolve. A significant negative relation is established between the number of interpretations articulated and the jury's likelihood of reaching a unanimous verdict. Articulating multiple interpretations in support of a candidate verdict appears to militate against its unanimous adoption.I am endebted to Andre Modigliani and Joseph Sanders for their invaluable assistance on this project.     

Procedural justice and ethical decision making

Procedural justice, in the form of voice and respectful treatment by supervisor, and ethical decision making are examined in this research. Ethical decision making is hypothesized to be a direct function of moral intent, as indicated by willingness to use moral criteria in decision making. Moral intent is, in turn, expected to be a function of the decision-making context, including perceptions of voice, respect and trust between supervisor and subordinate, and moral climate. Individual moral development is also expected to have a positive effect on moral intent. Results generally support the model, with two exceptions. First, perception of voice has a negative effect on moral intent, while caring climate and respectful supervisory relations have the expected positive effect on moral intent. These results suggest either a compensatory model of ethical decision making or a complacency effect. Second, individual characteristics had very little effect on either the decision made or the level of moral intent developed, save for one decision. These results suggest an important overlooked variable, the salience of issues for procedural justice concerns.     

Preference for decision control in organizational decision making

Two studies examined preference for authority or subordinate decision control in dispute resolution and allocation procedures in an organizational setting. In both studies, a marked preference for the authority/subordinate sharing of decision control was found. In Study 1, nearly one third of respondents preferred that subordinates share decision control with supervisors in both dispute and allocation situations; for several of the situations decision sharing was the modal preference. The study also found a tendency to prefer subordinate decision control in disputes but supervisor decision control in allocations. In Study 2, again the most preferred procedure was one in which subordinates shared decision control with their supervisors. The procedure high in decision sharing was rated as the one most fair. It was also rated as more likely to improve relationships among members and to result in the best decision. Some differences in preference for decision control and decision sharing depending upon social factors predominant in the setting were found.     

Collective decision making by committee

Implicitly or explicitly, economic decisions always contain elements of compromise. However, the bargaining models of economic theory treat only the two decision maker case with linearly aggregated priorities; i.e. compromise decisions under Pareto optimality and no side payments. Even then the relative importance of the decision makers remains indeterminate. This paper proposes a simplified bargaining model with three new features: (a) it allows multiple participants; (b) it uses optimal voting patterns to combine the policy proposals, rather than the policy priorities, to form those compromise decisions; and (c) it determines the relative power of each participant endogenously. Perhaps more important, the method does not depend on each decision maker knowing the preferences of his colleagues exactly.     

Race and the decision making of juries

The relationship between race and jury decision making is a controversial topic that has received increased attention in recent years. While public and media discourse has focused on anecdotal evidence in the form of high‐profile cases, legal researchers have considered a wide range of empirical questions including: To what extent does the race of a defendant affect the verdict tendencies of juries? Is this influence of race comparable for jurors of different races? In what ways does a jury's racial composition affect its verdict and deliberations? The present review examines both experimental and archival investigations of these issues. Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes. This is a conclusion with important practical as well as theoretical implications when it comes to ongoing debates regarding jury representativeness, how to optimize jury performance, jury nullification and racial disparities in the administration of capital punishment.     

Factors that influence jury decision making

Investigated whether information regarding the disposition of insanity acquittees and the defendant's mental state at the time of the trial, had a significant effect on mock jurors' verdicts. Two trials were used to assess whether results generalize across cases. participants read excerpts from a trial in which the accused's mental state at the time of the trial (symptom free, neurotic symptoms, or psychotic symptoms) and the disposition instructions (no instructions, indeterminate disposition, and capped disposition) were varied. Participants then rendered a verdict of guilty, not guilty, or not criminally responsible on account of mental disorder (NCRMD). Participants who thought the accused was psychotic at the time of the trial were more likely to render a verdict of NCRMD than guilty, and they were more likely to render a verdict of NCRMD than those who thought the accused was normal. No significant differences were found for disposition. Finally, a significant difference for verdicts was found between trials.     

Modeling psychiatric patients' treatment decision making

Decision-making processes of psychiatric inpatients were assessed at admission and prior to discharge, and compared to hospital staff members using a paired comparison paradigm in which subjects chose between hypothetical antipsychotic medications. Multidimensional analyses of binary choice matrices revealed that all subjects based decisions on the risks and benefits of medication, and weighted risks and benefits in roughly equal proportions. Hospital staff demonstrated greater internal consistency in their decisions than the inpatient sample at both time points. For newly admitted inpatients, severity of psychiatric symptoms and nonverbal intelligence were related to internal consistency of decision making, and behavioral indices of medication compliance predicted relative weighting of risks and benefits. For predischarge and comparison samples, verbal intelligence and treatment preferences predicted both outcome measures. Reliance on verbal reports of decision making may be misleading when assessing competence in acutely impaired psychiatric patients.     

Some factors in police discretion and decision making

This is a study of the exercise of police discretion as indicated by the responses of police recruits to a series of ambiguous, but common incidents. The situations are ambiguous in that they do not call for a clear course of action. The study measures the influence on the use of discretion of certain factors characterizing the police officers and the incidents themselves. The key finding is that the recruits most often seem to impose their own brand of justice based upon their judgement of what the community's expectations of the appropriate police response are. This judgement is most influenced by the accumulation of experience or “street wisdom”.     

Restoring accountability in pretrial release: the Philadelphia pretrial release supervision experiments

As drug arrests and jail overcrowding added pressure to increase pretrial release in localities during the 1980s and 1990s, the need to manage a larger and higher-risk pretrial population of defendants awaiting adjudication in the community became a high priority for justice agencies. In the late 1990s Philadelphia officials sought to discover the ingredients of a successful supervision strategy through four interlinked field experiments to provide an empirical basis for a major reform of the pretrial release system. The results of the linked randomized experiments question common assumptions about “supervision,” its impact and effectiveness, about the underlying nature of the noncompliant defendant, and deterrence implications. The study emphasizes the importance of interpreting the findings in the context of implementation of the policy reform. Findings suggest that facilitative notification strategies wield little influence on defendant behavior and that deterrent aims are undermined by the system's failure to deliver consequences for defendant noncompliance during pretrial release. The most significant contribution of the article is its illustration of a major evidence-based policy reform undertaken by a major court system.     

Naturalistic decision making in forensic science: toward a better understanding of decision making by forensic team leaders

This study uses the naturalistic decision-making (NDM) perspective to examine how Dutch forensic team leaders (i.e., the officers in charge of criminal forensic research from the crime scene until the use of laboratory assistance) make decisions in real-life settings and identifies the contextual factors that might influence those decisions. First, a focus group interview was conducted to identify four NDM mechanisms in day-to-day forensic decision making. Second, a serious game was conducted to examine the influence of three of these contextual mechanisms. The results uncovered that forensic team leaders (i) were attracted to obtain further information when more information was initially made available, (ii) were likely to devote more attention to emotionally charged cases, and (iii) used not only forensic evidence in the decision making but also tactical, unverified information of the police inquiry. Interestingly, the measured contextual influences did not deviate significantly from a control group of laypeople.     

Juror decision making in eyewitness identification cases

The lay-person's knowledge of the factors that influence eyewitness memory was examined by evaluating the manner in which mock jurors integrated eyewitness evidence to draw inferences about defendant culpability and the likelihood that an identification was correct. Three hundred and twenty-one undergraduates viewed a videotaped trial within which ten witness and identification factors were manipulated between trials. Manipulation checks showed that subjects demonstrated superior memory for the evidence and the manipulated variables had their intended impact on appropriate rating scales. However, only one variable, witness confidence, had reliable effects on subjects' perceptions of culpability, on the perceived likelihood that the identification was correct, and on several other relevant dependent variables. Eight variables that have been shown to affect identification accuracy in the empirical literature had trivial effects on mock jurors' inferences. It was concluded that lay-people are insensitive to the factors that influence eyewitness memory.     

A normality bias in legal decision making

It is important to understand how legal fact finders determine causation and assign blame. However, this process is poorly understood. Among the psychological factors that affect decision makers are an omission bias (a tendency to blame actions more than inactions [omissions] for bad results), and a normality bias (a tendency to react more strongly to bad outcomes that spring from abnormal rather than normal circumstances). The omission and normality biases often reinforce one another when inaction preserves the normal state and when action creates an abnormal state. But what happens when these biases push in opposite directions as they would when inaction promotes an abnormal state or when action promotes a normal state? Which bias exerts the stronger influence on the judgments and behaviors of legal decision makers? The authors address this issue in two controlled experiments. One experiment involves medical malpractice and the other involves stockbroker negligence. They find that jurors pay much more attention to the normality of conditions than to whether those conditions arose through acts or omissions. Defendants who followed a nontraditional medical treatment regime or who chose a nontraditional stock portfolio received more blame and more punishment for bad outcomes than did defendants who obtained equally poor results after recommending a traditional medical regime or a traditional stock portfolio. Whether these recommendations entailed an action or an omission was essentially irrelevant. The Article concludes with a discussion of the implications of a robust normality bias for American jurisprudence.     

Discriminatory decision making at the legislative level

This paper is an analysis of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Consistent with value-conflict perspectives, previous research on the social origins of drug legislation suggests that coercive laws occur when the behavior of minority and other subordinate groups become threatening. Liberalizing drug legislation is enacted when the interests of dominant groups seem juxtaposed to existing punitive legislation. The present analysis explores the process of legislative decision making when both subordinateand superordinate groups engage in drug-related behaviors which run counter to dominant norms and values. To do so, a detailed analysis of the congressional committee hearings and floor debates which preceded enactment of the 1970 Act was conducted. This analysis revealed that Congress did not pass a strictly coercive drug control policy at the risk of stigmatizing superordinate groups. Nor did it choose to liberalize drug penalties across the board. Congress perceived that strictly liberal policies might undermine both the instrumental goal of reducing illicit drug activity, and the symbolic goal of expressing general societal disapproval of illicit drug use. Instead, the legislation that emerged from congressional debates contained both liberal and coercive provisions reflecting the requirements of dealing with two targeted populations: young middle and upper class white drug users who became identified as victims of drug traffickers; and large-scale and professional drug dealers who became identified as enemy deviants—the true source and symbol of the drug problem. Liberal, and essentially discriminatory, provisions permitted the protection of the former from stigmatization as criminal felons. Coercive, but apparently nondiscriminatory, provisions provided the threat and potential for severe punishment of the latter. The discriminatory features of the 1970 Act are identified and explicated. And, the implications of the Act's provisions for race- or class-based decisions in the application of sanctions are discussed.     

Evaluating adolescent decision making in legal contexts

Challenges the use by policy researchers of a model for comparing adolescent and adult decision making that is based on informed consent standards. An expanded decision-making framework designed to evaluate judgment in adults and adolescents can better test the empirical basis of paternalistic legal policies. The theoretical and empirical literature on the informed consent framework is critiqued and an alternative framework incorporating judgment factors is proposed. Three judgment factors—temporal perspective, attitude toward risk, and peer and parental influence—and their effects on decision making are explored. Finally, implications for future research are analyzed in several decision-making contexts.Several of the ideas in this article were originally presented by the first author and were published as part of a symposium on competence (see Scott, 1992). The current article expands and refines these ideas, provides a more substantial research base, and suggests several future research directions. We thank Joseph Allen, Richard Bonnie, Baruch Fischhoff, William Gardner, John Monahan, Edward Mulvey, Richard Redding, Paul Slovic, and three anonymous reviewers for their helpful comments. Special thanks to Thomas Grisso for providing much constructive criticism and to Wendy Shang for outstanding research assistance. Finally, we would like to acknowledge the MacArthur Foundation, which supported this work in its early stages.