Sentencing Disparity Research Articles

Can Legislatures Redress Racial Discrimination in Capital Punishment? Evaluating Racial Justice Acts in Response to McCleskey

Three decades ago, the US Supreme Court declared in McCleskey v Kemp that legislatures, rather than courts, should redress statistically identified disparities in death sentencing. Racial justice efforts failed in Congress, but two states adopted measures that challenge inequalities in capital punishment. This article critically examines the development and impacts of the North Carolina and Kentucky Racial Justice Acts. Findings reveal two policy implications. The acts first actualised judicial wishes for elected officials and the public to address sentencing disparities. Secondly, the policies became distinct ‘super due process’ remedies that require defendants to show racial disparity as an error under specific procedures. Variation in the acts’ approaches to proof and causes of discrimination contributed to differential impact: the questioning of all death sentences within four years in North Carolina and minimal relief in Kentucky for two decades. Lessons are drawn for designing disparity reforms in criminal processing following judicial non-intervention.

Examining the Impact of Ecological Contexts on Gender Disparity in Federal Sentencing

Gender disparity in sentencing outcomes has been well established in literature. Recent research has increasingly paid attention to social contexts within which judicial decision-making occurs. This study combines these two lines of research by dissecting the nature of gender disparity through ecological lenses. Using 2008–2010 federal sentencing data, we examine the roles of religious and political conservatism in affecting gender-based sentencing disparity. We find that religious and political conservatism reduces gender disparity, with the female discount dissipating in court communities with higher levels of religious and political conservatism. We also find that the conditioning effects of both religious conservatism and political conservatism on gender disparity further interact with race, with black female defendants more likely to be influenced by religious and political conservatism than their white counterparts. Overall, this study contributes to sentencing literature by demonstrating that gender disparity is deeply entrenched in the ecological contexts of court communities.

Does the 'Family Factor' Really Matter? Sentencing Offenders in Domestic and Non-Domestic Violence Cases in Russia

While research on criminal sentencing has been an active field of inquiry for decades, social disparities in sentencing of domestic and non-domestic violent offenders remain understudied. Using court data on defendants persecuted in Russia in 2010-2013 enriched with information from verdict texts, we examine the effects of diverse socio-demographic characteristics and victim-offender relationship on both incarceration and sentence length decisions in violent cases, controlling for a range of legal factors. Gender, marital, parental, and employment statuses, educational background, criminal record and some other social characteristics differ significantly among offenders convicted of intimate partner violence, child-parent abuse, or non-domestic violence. Offenders sentenced for child-parent violence have a higher probability to be incarcerated than other violent offenders, while the probability of incarceration does not differ significantly for perpetrators of intimate partner violence compared to non-domestic violent offenders. Moreover, partner abusers receive even shorter sentences than non-domestic violent offenders. This effect sustains only for female offenders but not male offenders when the interaction of gender and the victim-offender relationship is included. Marriage usually decreases sentence severity. However, victim-offender relationship significantly moderates the effect. Partner abusers receive no discount in sentence length for being officially married than offenders in non-domestic violence cases.

Blame Based on One's Name? Extralegal Disparities in Criminal Conviction and Sentencing

We examine whether the perceived ethnoreligious origin of defendant's name matters for criminal justice outcomes. Drawing on data on adjudication of drug offenses in Belgium, we find that defendants with a perceived Islamic name face on average three to five percentage points greater prospects of conviction than defendants with a Belgian name. The name effect is not discernible with respect to sentence severity, does not take place in custody decisions, affects primarily male defendants, magnifies the effect of prior criminal record, occurs only when the presiding judge has had limited opportunity for exposure to Islamic culture, and, importantly, obtains even for defendants who never physically appeared before the judge. Our findings are consistent with the interpretation that judges sometimes rely on defendant's name to form perceptions of defendant's ethnoreligious identity and, in turn, attributions of defendant's culpability. Any underlying judicial bias is likely implicit and not systemic in nature.

Racial Disparities, Judge Characteristics, and Standards of Review in Sentencing Comment

Commentary on Schanzenbach, M. M. (2015), “Racial Disparities, Judge Characteristics, and Standards of Review in Sentencing,” Journal of Institutional and Theoretical Economics (JITE), 171(1), 2015.

Sentencing Disparities

Abstract Criminal justice stakeholders are strongly concerned with disparities in penalty outcomes. Disparities are problematic when they represent unfounded differences in sentences, an abuse of discretion, and/or potential discrimination based on sociodemographic characteristics. The Article presents an original empirical study that explores disparities in sentences at two levels: the individual case level and the regional level. More specifically, the study investigates upward departures in the United States’ federal sentencing system, which constitutes a guidelines-based structure. Upward departures carry unique consequences to individuals and their effects on the system as they lead to lengthier sentences, symbolically represent a dispute with the guidelines advice, and contribute to mass incarceration. Upward departures are discretionary to district courts and thus may lead to disparities in sentencing in which otherwise seemingly like offenders receive dissimilar sentences, in part because of the tendency of their assigned judges to depart upward (or not). The study utilizes a multilevel mixed model to test the effects of a host of explanatory factors on the issuance of upward departures at the case level and whether those same factors are significant at the group level-i.e., district courts-to determine the extent of variation across districts. The explanatory variables tested include legal factors (e.g., final offense level, criminal history, offense type), extralegal characteristics (e.g., gender, race/ethnicity, citizenship), and case-processing variables (e.g., trial penalty, custody status). The results indicate that various legal and nonlegal factors are relevant in individual cases (representing individual differences) and signify that significant variations across district courts exist (confirming regional disparities). Implications of the significant findings for the justice system are explored.

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.

Same Crime: Different Punishment? Investigating Sentencing Disparities Between Irish and Non-irish Nationals in the Irish Criminal Justice System

Irelandâ?Ts economic growth from the late 1990s prompted sustained and diverse inward migration, resulting in substantial changes in the population and reshaping the social and cultural landscape. These shifts have also been visible among those processed by the criminal justice system, with a marked increase in the number of non-Irish nationals committed to Irish prisons. International research suggests that racism is a significant issue within criminal justice systems, with ethnic minority groups often disadvantaged. Despite these findings and the growth in non-Irish national prisoners, little research has assessed the impact of racial bias on Irish sentencing outcomes. This exploratory study examines whether disparities exist between the sentencing of Irish and non-Irish defendants, using data from the Irish Prison Service. Non-Irish nationals were statistically significantly under-represented in the offence categories, â?~attempted robberyâ?T, â?~vehicle theftâ?T, â?~criminal damageâ?T, â?~robberyâ?T, â?~parking fine offencesâ?T, â?~assault causing harmâ?T, â?~intoxication in a public placeâ?T, â?~threatening behaviour in a public placeâ?T, â?~unlawful possession of drugsâ?T and â?~no television licenceâ?T. They were statistically significantly over-represented in the offence categories, â?~driving under the influenceâ?T, â?~no vehicle insuranceâ?T, â?~theftâ?T and â?~possession of drugs for sale/supply (to the value of <â,¬13,000)â?T. The implications of non-Irish national over-representation in the offence, â?~possession of drugs for sale/supply (to the value of <â,¬13,000)â?T will be explored in the discussion.

Racial Disparities in Federal Sentencing: Evidence from Drug Mandatory Minimums

I study racial disparities in the criminal justice system by analyzing abnormal bunching in the distribution of crack-cocaine amounts used in federal sentencing. I compare cases sentenced before and after the Fair Sentencing Act, a 2010 law that changed the 10-year mandatory minimum threshold for crackcocaine from 50g to 280g. First, I find that after 2010, there is a sharp increase in the fraction of cases sentenced at 280g (the point that now triggers a 10-year mandatory minimum), and that this increase is disproportionately large for black and Hispanic offenders. I then explore several possible explanations for the observed racial disparities, including racial discrimination that occurs after entry into the criminal justice system. I analyze data from multiple stages in the criminal justice system and find that the increased bunching for minority offenders is driven by prosecutorial discretion, specifically as used by about 20-30% of prosecutors. Moreover, the fraction of cases at 280g falls in 2013 when evidentiary standards become stricter. Finally, the racial disparity in the increase cannot be explained by differences in education, sex, age, criminal history, seized drug amount, or other elements of the crime, but it can be largely explained by a measure of state-level racial animus. These results shed light on the role of prosecutorial discretion and racial discrimination as causes of racial disparities in sentencing.

From Disparity in Sentencing Towards Sentencing Equality: The German Experience

This article addresses movements in Germany towards greater uniformity in sentencing since the entry into force of the first federal criminal code in 1871, with a particular focus on developments since the second half of the twentieth century. The author reviews the empirical evidence for sentence disparity; addresses the limitations of the constitutional principle of equality as a means for overcoming sentencing disparity; identifies the causes of sentence disparity and tracks practical efforts made to overcome that disparity, specifically through the introduction of prosecutorial guidelines and judicial manuals for certain frequent types of offending. He also explains and critiques different theoretical models for increasing sentencing equality, and reviews the advantages and potential uses of sentencing information systems such as a judgment database created in Japan. The author then turns to the contribution made by the appellate courts to greater uniformity in sentencing and expresses the hope that recent trends towards intensified guidance for trial courts in appeals concerning tax offences will be extended to other types of offences as well.

Tailored Jury Instructions: Writing Instructions That Match a Specific Jury's Reading Level

Current jury instruction practice provides juries with one-size-fits-all instructions. These instructions consistently exceed juries’ reading levels and result in disparity in juror participation and capital sentencing. This Article is the first to propose measuring a specific jury’s reading level and allowing attorneys to craft instructions that match that jury’s reading level. There are tools available to attorneys that will allow them to measure a jury’s reading level and tools that will allow them to evaluate the comprehensibility of instructions. Courts have previously solidified these linguistic-measuring tools’ legal validity, opening the door for trial judges to implement tailored instructions without fear of appellate reversal. Thus, Instead of using one-size-fits-all instructions, attorneys should be tailoring instructions to ensure proper jury application of the law.

Addressing the Race Gap in Incarceration Rates: An Agent Based Model

ABSTRACTUsing an agent-based model of incarceration, the authors conduct a series of simulation experiments testing the efficacy of policy interventions designed to address racial disparities in incarceration rates. The first experiment eliminates race-based sentencing disparities, and additional experiments eliminate race-based sentencing disparities and disrupt the clustering of incarcerated individuals in their social networks. Findings suggest that eliminating race-based sentencing disparities will not result in a substantial closing of the incarceration gap because the clustering of ex-offenders contributes to offender recidivism and disparities in incarceration rates. The model suggests that addressing sentencing biases combined with interventions designed to disrupt the clustering of incarcerated individuals would reduce race-based incarceration gaps. Policy implications based on these findings are discussed.

Severity and leniency in criminal sentencing in Russia: the effects of gender and family ties

ABSTRACTUsing data on 5 million defendants prosecuted in Russian criminal courts in 2009–2013, I examine how sex, marital and parental statuses are related to sentencing decisions. The findings indicate that women face significantly lower likelihood of being incarcerated and a shorter length of incarceration than men. However, positive discrimination of women is not observed for drug-related crimes, where sex effect is not significant. Married offenders are less likely incarcerated than single persons. The effect of having children is inconsistent and varies depending on the type of offense and whether in/out or sentence length decisions are considered. When defendants face prison term, childcare responsibilities are associated with longer sentences, especially for females, which can be the “reverse side” of the child-caring role placed on women with children, but not on men. The paper demonstrates how gender order, as well as cultural and legal contexts of a particular society moderate the gender disparity in sentencing.

A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud

Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines. The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime. This Article examines the role of the “intended loss” calculation. The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability. By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable. Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct. Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability. It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.

Why and How the Supreme Court Should End the Death Penalty

In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty. The purpose of this article is to contribute to that discussion. The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years. Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline. The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty. The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer. Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty. The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place. The Court could choose to abolish the death penalty for one of several reasons. First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application. Second, there are several Eighth Amendment grounds upon with the Court could rely. For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.” The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.” Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.

The Importance of Statements of Reasons in Guideline Sentencing

The goals of the Sentencing Reform Act of 1984 are to reduce unwarranted sentencing disparity and provide truth in sentencing. One of the essential elements in achieving these goals is the requirement that judges state their for a sentence and report that statement to the United States Sentencing Commission. See U.S.C. ?3553(c) and 28 U.S.C. ?994(w). It is simply impossible to determine whether similarly situated defendants were sen tenced similarly without knowing what factual find ings were made and what guidelines were applied or why a departure from the guidelines was made. If these reasons are not stated by the court at the time of sentencing the defendant may not be able to adequately identify any basis for appeal, the court of appeals has inadequate information to review, and the Sentencing Commission cannot determine how the guidelines are functioning and whether they need to be modified.

Federal Sentencing Guidelines and United States v. Booker: Social Context and Sentencing Disparity

The United States v. Booker decision rendered Federal Sentencing Guidelines advisory rather than mandatory. In the context of this decision, this study examines both the direct influence of aggregate-level political, community, and administrative variables on sentencing outcomes, and the way that such characteristics might contextualize individual-level predictors. Using multi-level regression techniques, this study examines the role of aggregate-level variables on sentence length decisions across four distinct time periods. Moreover, this article also examines whether aggregate-level variables condition the effects of race/ethnicity on sentencing outcomes. Whereas the direct effects of aggregate-level variables on sentencing outcomes are generally limited to political climate effects, there is evidence that political climate and other aggregate-level measures contextualize individual-level race/ethnicity effects. Future research should seek to better understand the specific mechanisms behind these relationships.

Rules, Standards, Sentencing, and the Nature of Law

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this “rulification” of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice. Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law’s grander aspirations—for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.

Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing

This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime. However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites. After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent. These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.

Expanding the scope of sentencing research: Determinants of juvenile and adult punishment in the Netherlands

Research on legal and extralegal disparity in criminal sentencing has been conducted primarily in the United States, and, to a lesser extent, in select European nations. Largely separate research literatures have developed around juvenile and adult sentencing decisions, and few studies examine both prosecutorial and judicial punishment outcomes. This study examines the effects of diverse legal and socio-demographic characteristics on both prosecutorial and judicial punishments, for both juveniles and adults. It assesses the broad generalizability of prior research and theorizing, analyzing punishment outcomes for all criminal suspects registered by the Public Prosecutor’s Office in the Netherlands in 2007. Results indicate that offense, case-processing and criminal history characteristics weigh heavily in prosecutorial and judicial decision-making. There are also direct effects of age, gender and nationality on both prosecutorial and sentencing decisions, for both juvenile and adult offenders, in the Dutch justice system. These findings are discussed in relation to the broad discretion exercised by Dutch court actors and the paper concludes with recommendations for future sentencing research in international contexts.