Racial Disparities and Discrimination: The Sentencing Pendulum

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.





By C. J. Oakes

Racial Disparities and Discrimination:  The Sentencing Pendulum

The Criminal Justice has been likened to a funnel, with accused parties entering through the large end, but filtering out as the process moves to completion (Meyer & Grant, 2003).  In reality, a better analogy would be the pendulum; it slices back and forth, separating as does a saw.

At every stage in the criminal justice system, the pendulum swings; from the initial contact with police to the sentencing phase.  In fact, the pendulum swings from the time a person enters the system until he or she either leaves or remains (Crutchfield, Fernandez, and Martinez, 2010).  However, to be clear by what is meant by “pendulum” a working definition is in order.

Pendulums Swing

A pendulum is a device traditionally used in upright clocks to maintain time; it operates by moving in a side-by-side motion, relying on gravity and inertia to maintain the motion, rendering a form of perpetual motion energy.

This makes a pendulum reliable as an energy source in such applications as time-keeping.  However, another image some get of a pendulum is derived from horror films of the last few decades; many view this form as historical, but that is a subject of debate.  In this form, the pendulum is a rounded, sharpened blade that swings and slices through victims strapped beneath.

In both senses of the word, a pendulum is a fitting symbol of how the criminal justice system works.  It does not stop for time, marching steadily forward, and always (ideally) slices through to the truth.  In this respect, the pendulum is a fitting symbol of values for values relate to the contribution of system disparities.

Clearly, the criminal justice system funnel is an effective symbol for some, but not for all.  Instead, examine the key pendulums within the criminal justice system.

The Individual

The most important pendulum in the criminal justice system is the individual, the defendant.  Crutchfield, Fernandez, and Martinez reported on research beginning in the 1950s that indicated that attitude of the suspect played as much, if not more of a role than any other factor in determining whether an officer made an arrest or not (Crutchfield, Fernandez, & Martinez, 2010).

The attitude of the individual was found to persuade the District Attorney to either drop the charges or proceed, the judge to allow or disallow certain evidences presented, and affected how the Defense Attorney operated on behalf of his client.  This being the case, more studies are needed into this aspect of the criminal justice funnel to determine if, how often, and what kinds of attitudes result in the racial disparities we see in the system.

The Police

It has been long-known that police are on the front-lines of the criminal justice funnel; they are like fishermen filling nets, tossing in the masses for separation.  However, it should be noted that not all suspects are thrown into the funnel, for at this stage, the police act as the second pendulum for separation.  The officer must decide whether to arrest or warn and just as attitude plays a role for the suspect, attitude plays a role in the officer’s decision (Crutchfield, Fernandez, & Martinez, 2010).

Whereas a police officer in one instance may choose to arrest, another in the same instance may not. At the same time, a police officer may decide to arrest one suspect based on factors even he/she may not recognize while releasing another based on the same factors. Such factors can include race, even though the officer may not consider him/herself racist.

In a study conducted using Craigslist in 2014, images of a cell phone held by various unseen individuals were place throughout the nation. The same cell phone was used in each image and the only differences were direction in which the phone was held, the race as seen from the hands (in other words, the color of the person holding the phone and assumed to be the seller thereof), and visible tattoo’s on some.




The study revealed interesting trends: Those held by persons of dark color were 17% less likely to get a call to purchase and those with tattoo’s were likely less likely, though not as much as the darker-colored group. This reveals a latent inclination towards racism in society, whether known or not. In another study around the same time, it was found that on average, even people who do not believe they are racist do not have many close friends of another race.

This trend was found across all races, though was more pronounced in Whites when compared to other groups, indicating that the most racist persons are white. More than this, it revealed that even when not “racist” in the strictest sense, we all tend to naturally segregate according to race.

Thus, not to pick on police, but police officers ARE the first pendulums in the criminal justice funnel so disparities begin with them, though they may not be implicitly racist nor even consider themselves as such.

The Prosecutor

The next stop in the Criminal Justice funnel whereby the pendulum swings powerfully is the Prosecutor’s office.  As expected, the Prosecutor will seek to convict most who enter this arena, but if there is insufficient evidence for a conviction, the Prosecutor thinks the public will not approve of the case, or there are other mitigating circumstances that may persuade this person to drop the case, he will.

In addition, plea bargains, and other deals could have an impact on racial disparities (Davis, 1998).  As mentioned previously, attitudes, both of the office and the defendant likely play a major role in the decision-making process for this office, which presents another area needing further study.

It should be reminded that a prosecutor is just as human as anyone else. Thus, prosecutors are just as susceptible to the overt racist tendencies as described above in the police section. In fact, it is worth clarifying that EVERYONE in the process is susceptible to such overt and unknown attitudes.

According to the studies, this is just part of our nature and in order to avoid out inert biases, we must be vigilant to recognize when that leaning is affecting our judgment. That, however, as Shakespeare put it, is the “Rub.” Not always an easy thing for some or most as the studies would seem to indicate.

The Judge

Studies have repeatedly shown that among judges, no noticeable discrimination occurs on a judicial level other than perhaps in very isolated incidents.  Never-the-less, the Judge, as the arbiter of evidence admitted, arguments presented, and proceedings can and likely does play some role in racial disparities (Meyer & Grant, 2003).  As such, the values held by the Judge will play a role in whether or not a defendant receives a fair trial.  Here too, the pendulum may swing either direction.

If a judge is offended somehow by something a defendant says or does, that defendant is less likely to receive either a favorable outcome or even one which is just. An inner-city toughened African-American youth is likely to offend a middle-aged, white judge from the suburbs if the two get into any sort of disagreement.

Given that scenario, even a judge which is not inherently racist may still be inclined to be tougher than otherwise. Thus, while race may not be the issue causing the disparity, at times, culture is the culprit.

Recognizing cultural biases/prejudices is often just as difficult for people, judges included, to recognize and given the fact that cultural differences generally tend to function according to race, any swing of the pendulum according to culture would still have the effect of swinging according to race.

The Jury

Not to be overlooked is the role of the Jury.  Beginning with the voir dire segment of jury selection, every effort is made to build a jury free from bias (Meyer & Grant, 2003).  Of course, this is not a perfect process, but the idea is to avoid the kinds of disparities the system is currently wrangling.

In recent years, a movement to get juries to argue nullification based on the race of the defendant so as to rebalance the scales of justice has arose (Lal, 2009).  This is certain to be an area of study in future years.  The point is, a jury can play a major role in racial disparities.

One of the key ways many seek to avoid disparities as a result of the jury is by ensuring that a jury is comprised of people from all races, both sexes, and ideally various cultures. The idea is that in so doing, the natural biases will be mitigated among 12 people locked in a room deciding a defendant’s fate. This system does work, but the only cog in the pendulum is that many defendants plea out at earlier stages, guilty or not.

The Defense Attorney

One recent study found that as the numbers of minority Defenders in a jurisdiction increased, racial disparities in the system decreased (King, Johnson, & McKeever, 2010).  This tends indicate that a sound defense plays a major role in determining who rides the pendulum out of the system and who continues.  This would make sense if it were found that discrimination does indeed play a role in the actions of all the other players in the Criminal Justice funnel.

Indeed, the very fact that the race of the Defense Attorney plays such a large role indicates that regardless of studies seeming to indicate otherwise, there must be biased forces at play elsewhere in the system.  Hence, this is a field of study that should take precedent.

Other Players

Sales Reps have long known that to reach the decision-maker for a business, often, the way in is to befriend the secretaries, janitors, and other lesser workers in the business.  This is because these people have access to the boss daily and winning their trust often opens the door to the final say.

It is no different in the criminal justice arena.  The attitudes of clerks, bailiff’s, and others in the courtroom can and likely do play at least some role in the outcome.  This is another field of study that has been largely ignored.

The Individual

Once again, the role of the individual defendant in a case cannot be understated.  The studies cited by Crutchfield, Fernandez, and Martinez (2010) regarding the role of attitude in swaying the decision of an arresting officer make it clear that attitude should be one area of study; when considering the role of all players involved in the disparities facing the system and especially the attitude of the defendant.

An individual who has repeatedly come into conflict with “the system” is more likely to develop an “attitude” of defiance and contempt. This attitude will be manifested when confronted with a situation and mitigating that requires knowledge and self-control.

There is currently a video series on YouTube which teaches people how to react when pulled over by police. The series focusses on showing how to answer questions and properly refuse searches without raising undue suspicions. In addition, most of the players in the scenes are African American, thus the maker of the videos (also AA), is clearly appealing to the all-too-common situation wherein culture and lack of knowledge of the system plays some role in causing arrests and needless searches.

The Statistics

Given the attention given the statistics in recent years regarding the disparities in sentencing for certain segments of the population, little needs to be said in this section.  However, it is necessary to discuss certain elements of this argument; namely that attitudes play a role in disparities among various groups.

The two key groups through which such disparities result are among Male and Female or Black and White. Consider each.

Male versus Female Disparities

Although the disparity between male and female convicts is dissipating, disparities still exist to the extent that as a result, researchers may focus in this area to gain insights into the racial disparities.  There has been much written over the years regarding the differences between men and women, both in, and out of the scientific community (Spohn, 2009).

Indeed, outside the community, writers such as John Gray, Ph.D. have even explained that men and women are basically different concerning attitudes towards figures of authority, independence, and liberty (Gray, 1992).  Place a man and a woman in the same situation and usually, the two will make differing choices with differing results with considerable consistency.

African American versus White Disparities

African American versus White disparities is the reason for the concern in the first place; meaning that African American Males receive the double whammy and indeed, are incarcerated at much higher rates than all others groups (Toth, Crews, & Burton, 2008).  However, if attitudes regarding authority figures were to be calculated into the equations for determining disparities or discrimination, a clearer image may present itself.

Given the history of socially authorized oppression that African Americans, males in particular have had to contend, it would be little wonder if these parties were antagonistic toward the entire system.  If this is the case, it would explain why researchers cannot isolate causes of disparity.  Indeed, it would also explain why at every turn, the system appears to be attempting to correct the problem, but remains largely unable.

Interpreting Statistics and Drawing Conclusions

There is no end to the interpretation of statistics by researchers; this should tell Criminologists something:  Studying extant data is of limited use.  Carefully created experiments using computer technology is possible that can explain rapidly and predict behavior.

If there is to be a clear understanding of the issue of racial disparities and discrimination in the Criminal Justice system, there must be empirical evidence to support findings.  A good start would be with attitudes and behaviors, rather than the system.

As with a pendulum, the choices made by all involved determine the life course of an individual.  Each defendant is entitled to a day in court to meet the charges brought against him or her, but if the system is stacked against the defendant, the entire show is for naught.

If, however, the disparities in the system are more the result of individual choices and attitudes, researchers can focus attention in other areas of concern. Individuals may need to consider the role they play in adding to the disparitirs.  The educational system can perhaps take up the cause and teach and empower people to make wiser choices of behavior, both in, and out of the courtroom.

It would be an excellent project to research and should yield fruitful results. The criminal justice funnel will only be improved with a better pendulum. The criminal justice pendulum is US…All of US.



References

  • Coulson-Clark, M., Kamalu, N. M., & Kamalu, N. C. (Spring, 2010). Racial Disparities in Sentencing:  Implications for the Criminal Justice System and the African American Community. African Journal of Criminology and Justice Studies, 4(1), 1-31.
  • Crow, M. S., & Kunselman, J. C. (Jul-Sept2009). Sentencing Female Drug Offenders:  Reexamining Racial and Ethnic Disparities. Women & Criminal Justice, 19(3), 191-216.
  • Toth, R. C., Crews, G. A., & Burton, C. E. (2008). In The Margins:  Special Populations and Criminal Justice. Upper Saddle River, NJ: Pearson Prentis Hall.
  • Ward, G., Farrell, A., & Rousseau, D. (Dec, 2009). Does Racial Balance in the Workforce Representation Yeild Equal Justice?  Race Relations of Sentencing in Federal Court Organizations. Law & Society Review, 43(4), 757-806.
  • Crutchfield, R. D., Fernandez, A., & Martinez, J. (2010). Racial and Ethnic Disparity and Criminal Justice:  How Much is Too Much? Journal of Criminal Law and Criminology, 100(3), 903-32.
  • Davis, A. J. (1998). Prosecution and Race: The Power and Privilege of Discretion. Fordham Law Review, LXVII(1), .
  • Gray, Ph.D., J. (1992). Men Are From Mars, Women Are From Venus. New York, NY: J.G. Publications.
  • King, R. D., Johnson, K. R., & McKeever, K. (March 2010). Demography in the Legal Profession and Racial Disparities in Sentencing. Law & Society Review, 44(1), 1-32.
  • Lal, P. (09/09/2010). The Case for Race-based Jury Nullification. Retrieved from http://news.change.org/stories/the-case-for-race-based-jury-nullification
  • Meyer, J., & Grant, D. (2003). The Courts in Our Criminal Justice System. Upper Saddle River, NJ: Pearson Prentis-Hall.
  • Spohn, C. (2009). Race, Sex, and Pretrial Detention in Federal Court:  Indirect Effects and Cumulative Disadvantage. Retrieved from http://law.ku.edu/publications/lawreview/pdf/6.0-Spohn_Final.pdf
  • Steffensmeier, D., & Demuth, S. (2006, September). Does gender modify the effects of race–ethnicity on criminal sanctioning?  Sentences for male and female white, black, and hispanic defendants. Journal of Quantitative Criminology, 22(3), 241.
  • Sellers of color: This Craigslist experiment reveals America’s latent racism. VB News. By Ferenstein, G.  June 9, 2014. Retrieved from: http://venturebeat.com/2014/06/09/sellers-of-color-this-craigslist-experiment-reveals-americas-latent-racism/

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