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.     

ON THE USE OF THE TOTAL INCARCERATION VARIABLE IN SENTENCING RESEARCH*

This study calls into question the use of the total incarceration response variable incorporated into sentencing studies over the past 30 years. Specifically, using data from the Pennsylvania Commission on Sentencing (PCS), it argues–and reveals–that prison and jail represent two distinct institutions, and that the judge's decision on disposition should take that factor into account. It recommends that researchers should therefore reconsider use of the total incarceration variable, which combines prison and jail into a single response category.     

On penal metrics

This paper presents the results of a public survey on the perceived severity of different kinds and levels of penalties gathered using magnitude estimation techniques. Three topics are dealt with. Individual scales of sentence severity are shown to be internally consistent. Then the structural properties of the severity scales of fine, imprisonment, community work, and probation are analyzed. Finally, what a given penalty is worth in relation to other types of punishment from the public's point of view is established and compared to existing exchange rates prescribed in legal statutues or practiced by criminal courts.     

刑事案件审前社会调查制度实证研究——以长乐法院审前社会调查运行情况为样本

审前社会调查制度的设立,为法院对被告人正确适用非监禁刑提供了参考,同时为教育、感化、挽救未成年被告人提供重要的依据。但实践中,仍存在着立法基础相对落后性、委托中的操作困难性、评估意见书的定性模糊等缺陷,这都导致审前社会调查无法完全发挥出预期效果。为此,必须从构建统一又区分的立法体系、建立以公安为主、法检为辅的审前社会调查程序、建立本地与外地司法局间直接委托关系、明确评估意见书的＂参考＂性质等多方面予以完善,从而发挥审前社会调查制度的最大功能。     

Focally Concerned About Focal Concerns: A Conceptual and Methodological Critique of Sentencing Disparities Research

Abstract

“Focal concerns” is the predominant theoretical framework in criminology for explaining disparities in sentencing outcomes. While the framework has generated a large body of empirical scholarship, its postulates remain inadequately tested in the criminological literature. In this paper, I offer a conceptual and methodological critique of focal concerns as it is being deployed in a large body of sentencing research. I first trace the genealogy of the “focal concerns” concept and detail its current articulation. I then describe the body of work that has reduced “focal concerns” to a commonsense psychological construct, and illustrate the fallacies of logic and paucity of direct theory development and testing that weaken the explanatory value of the framework. I conclude by building on Ulmer’s recent call to treat criminal courts as “inhabited institutions” to assess approaches that are more social scientifically robust and empirically testable for understanding how sentencing disparity is produced.     

The role of prior punishment in preventive detention decisions

ABSTRACT

Preventive detention legislation allows for ongoing detention or supervision following completion of an offender’s sentence. Consideration of public protection should drive the administration of preventive detention, however research has indicated retributive concerns also drive decision making. Two studies were conducted to examine the motives driving preventive detention decisions, and how contextual variables affected the balance between retributive and public protection motives. In Study 1, participants were presented with information about an offender’s remorse, prior punishment, and risk of re-offence. In Study 2, participants were presented with information about an offender’s prior punishment and offence type, and the relative strength of various potential mediators was tested, to determine factors driving effects of prior punishment information. Overall, results demonstrated participants were driven by both retributive and public protection motives, as well as personal characteristics (e.g. political orientation, prejudice against offenders) when making preventive detention decisions. Findings are discussed in terms of their implications for preventive detention legislation.     

徇私舞弊罪应当单独设立

徇私舞弊罪是指国家机关工作人员徇私舞弊,不履职或不正确履职,致使公共财产、国家和人民利益遭受重大损失的行为。我国《刑法》虽然没有规定徇私舞弊罪,但规定了很多徇私舞弊型犯罪,这些犯罪既不同于滥用职权,又不是玩忽职守,而是一种新的犯罪行为。立法单独设立徇私舞弊罪,既符合法理,也有利于指导司法实践。     

LEGAL CYNICISM,COLLECTIVE EFFICACY,AND THE ECOLOGY OF ARREST*

Ethnographic evidence reveals that many crimes in poor minority neighborhoods evade criminal justice sanctioning, thus leading to a negative association between the proportion of minority residents in a neighborhood and the arrest rate. To explain this finding, we extend recent theoretical explications of the concept of legal cynicism. Legal cynicism refers to a cultural orientation in which the law and the agents of its enforcement are viewed as illegitimate, unresponsive, and ill equipped to ensure public safety. Crime might flourish in neighborhoods characterized by legal cynicism because individuals who view the law as illegitimate are less likely to comply with it; yet because of legal cynicism, these crimes might go unreported and therefore unsanctioned. This study draws on data from the Project on Human Development in Chicago Neighborhoods to test the importance of legal cynicism for understanding geographic variation in the probability of arrest. We find that, in neighborhoods characterized by high levels of legal cynicism, crimes are much less likely to lead to an arrest than in neighborhoods where citizens view the police more favorably. Findings also reveal that residents of highly cynical neighborhoods are less likely to engage in collective efficacy and that collective efficacy mediates the association between legal cynicism and the probability of arrest.     

TRANSFERRED JUVENILES IN THE ERA OF SENTENCING GUIDELINES: EXAMINING JUDICIAL DEPARTURES FOR JUVENILE OFFENDERS IN ADULT CRIMINAL COURT*

This study contributes to contemporary research on the punishment of juvenile offenders in adult court by analyzing the use of guidelines departures for transferred juveniles in two states, one with presumptive sentencing guidelines (Pennsylvania) and one with voluntary guidelines (Maryland). Propensity score matching is first used to create more comparable samples of juvenile and young adult offenders, and then Tobit regressions are employed to estimate the effect of juvenile status on the likelihood and length of departures. Our findings indicate that juvenile status significantly affects the use of upward departures in Pennsylvania, and the use of both downward and upward departures in Maryland. Judicial reasons for departure are examined to provide additional insight into the complex dynamics surrounding exceptional sentences for juvenile offenders sentenced in adult court.     

A Multilevel Analysis of Community Effects on Criminal Sentencing

This research examines the influence of several important community characteristics on the sentencing of convicted felony defendants, net of other predictors associated with sentencing decisions. Using an appropriate multilevel technique, I find that several community characteristics affect the likelihood that defendants are sentenced to prison versus jail. However, none of the community characteristics influence the odds of prison versus non‐custodial sanctions or jail versus non‐custodial sanctions for these defendants. This underscores the importance of using sentencing measures beyond the basic “in/out” dichotomy. Even more importantly, the results suggest that there remains a statistically significant and substantial amount of sentencing variation across counties after controlling for relevant individual‐ and community‐level factors. The implications of these findings for research, theory, and policy‐making are discussed.