East Tennessee State University
CHAPTER 1 INTRODUCTION
Sentencing disparity within the criminal justice system of the United States has been widely researched over the years (Crawford, 2000; Doerner & Demuth, 2010; Johnson, 2003; Koons-Witt, 2002; Mustard, 2001; Rodriguez, Curry, & Lee, 2006; Steffensmeier, Ulmer, & Kramer, 1998; Thomson & Zingraff, 1981). Disparity or discrimination occurs in sentencing when offenders who commit similar offenses and have comparable criminal histories are given substantially different sentences (Travis III, 2012). Factors influencing sentencing decisions that have been commonly identified across literature include legal variables, such as mitigating and aggravating circumstances regarding the offense, as well as extralegal variables involving demographic and individual characteristics (Bontrager, Bales, & Chiricos, 2005; Demuth, 2003; Johnson, 2003; Mustard, 2001; Steen, Engen, & Gainey, 2005; Steffensmeier et al., 1998; Steffensmeier & Demuth, 2001).
Reasoning behind the apparent disparity in sentencing decisions is extrinsic and complicated, although research has provided multiple avenues of explanation (Walker, Spohn, & Delone, 2012). Statistics have consistently shown that African Americans and Hispanics are more likely to be sentenced to incarceration sentences than whites, though they do not commit the most crime (Walker et al., 2012). Younger offenders are more likely to receive harsh sentences than elderly offenders, and males are more likely than females to be sentenced to prison or jail time (Doerner & Demuth, 2010). However, though court and prison statistics have remained constant over time, researchers cannot agree to a single explanation as to why these disparities occur. Statistics provided by criminal justice agencies assist researchers with creating a basis on which to form their research, but ultimately, the question of why sentencing discrimination occurs is left in the hands of researchers and scholars.
Many states utilize sentencing guidelines for judges in an attempt to lower the occurrence of bias in sentencing decisions. This issue is important to the American criminal justice system because justice becomes compromised when sentencing strays from a fair and unbiased method of reprimanding the country’s criminal offenders. Based on laws and policies set forth in American courts to provide equality and justice for all citizens, the judicial system should determine sentences based on the details of the offense and the offender’s prior record, not personal characteristics. Sentencing discrimination and disparity occurs across the country, at both federal and state levels, when extralegal variables, such as race, age, gender, and marital status, are utilized in incarceration decisions and sentence length (Steffensmeier & Demuth, 2001; Doerner & Demuth, 2010). Sentencing discrimination deserves special attention from researchers so that studies may be utilized to find patterns of disparities, as well as helping formulate an answer to resolve the matter.
Previous literature has investigated several factors relating to sentencing disparity including: race, ethnicity, social class, and age (Mustard, 2001). One study by Doerner and Demuth (2010) claims that there is an overrepresentation of minorities, such as Hispanics and African Americans, within both the court system and prisons, and that this fact presents a possibility of discrimination by police and courtroom actors. However, researchers have been unable to agree as to what extent these disparities occur (Austin & Williams, 1977). Some studies have shown that extralegal factors, namely race, ethnicity, age, and gender, have effects on sentencing decisions (Mustard, 2001), while others have concluded that there are far too many methodological and conceptual issues within sentencing research to assume any findings as valid (Thomson & Zingraff, 1981). Although there is a lack of theoretical framework in regards to sentencing, Steffensmeier and his associates (1998) attempted to explain the topic with their focal concerns theory. They posited that sentencing decisions take into account the blameworthiness of the offender, the need for protection of the community in which the offense occurred, and the practical implications of the sentence. These three factors, according to Steffensmeier and his colleagues (1998), are of the highest importance when a judge sentences an offender, though other variables may affect the sentencing process.
The subject of sentencing disparity is important to the American court system and its operation within various communities across the nation. Although the United States promotes justice, fair treatment, and equality, these values are not always present in the courtroom.
Researchers have questioned the integrity of giving offenders special or preferential treatment based on their physical qualities as opposed to using uniform sentencing guidelines for all offenders based on the qualities and characteristics of the offense itself (Nagel & Johnson, 1994). For example, the lenient treatment of female offenders is often seen as a blessing to those involved, but it leads society further away from the notion of equal treatment of women.
Therefore, sentencing researchers have focused on the extent of the sentencing disparity problem and what may be causing judges to use bias against certain offenders. The variables of gender, race, and age have been given special attention in more recent studies (Steffensmeier et al., 1998). Results from various studies have shown the importance of these demographic characteristics, especially race, in judicial decisions in courts across the nation (Walker et al., 2012).
The current study will focus on the above-mentioned extralegal variables that may have an effect on sentencing decisions made by district court judges. The purpose of the study is to further extend research on sentencing disparity and judicial discretion while specifically looking at cases of driving while impaired charges in two counties in western North Carolina. The study will focus on driving while impaired charges because there are a multitude of these cases in the western North Carolina area. Also, under North Carolina Law, district court judges are required to follow sentencing guidelines in these cases. This data will add to the already existing body of research by providing sentencing data specifically for driving while impaired charges, as previous research has not provided a focus on this type of offense. Because past research has mainly focused on federal sentencing, the current study will provide a different outlook on sentencing discretion through state-based data.
REVIEW OF THE LITERATURE
In this chapter, I will provide a brief history of sentencing disparity and judicial discretion. I will also address a theoretical perspective of the topic and introduce previous literature on sentencing disparity in regards to gender, age, and race. Past studies have found the strongest correlation with sentencing disparity in the intersection of gender, race, and age (Doerner & Demuth, 2010; Steffensmeier et al., 1998; Steffensmeier & Demuth, 2006); therefore, the current study will focus on this intersection, but address relevant research in all three of the variables independently as well. Due to the lack of research conducted specifically in regards to driving while impaired charges, the literature review will focus primarily on sentencing research that has been conducted using national sentencing data that is not specific to one type of offense. Lastly, I introduce the current study and the hypotheses that will be tested.
History of Sentencing
The agencies in the criminal justice system are one of the few that widely advocate the use of discretionary decision-making in our nation. Police, prosecutors, and judges are allowed and encouraged to use their best judgment in each situation as necessary, even if their decisions differ from those prescribed by rules or guidelines (Nagel & Johnson, 1994). Judicial discretion in the U.S. dates back to the creation of our federal laws and has been used, tested, and debated by legal and justice scholars and agents ever since (Stith & Koh, 1993). In order to provide fair and equal justice to all, the United States Sentencing Commission was created in 1984 to provide guidelines of which judges were to follow in their courtrooms at the federal level (Stith, 2008).
The purpose of these guidelines was to limit the discretionary decision judges were able to make, as they were now required to follow strict sentencing procedures for certain offenses. The
sentencing guidelines also required that judges provide reasoning for any and all sentencing decisions that differed from the specific sentence prescribed by the guidelines. The guidelines created during this sentencing reform specifically state that a judge may not use race, gender, income, or ethnicity as an influence on his or her sentencing decisions (Mustard, 2001).
Following the implementation of guidelines in federal courts, many states soon followed suit and formed their own sentencing guidelines (Stith, 2008). As a result, judicial discretion became limited, and the hope for equality in the criminal justice system became closer to reality.
Despite these guidelines, both federal and state judges continue to exercise their discretion in discriminatory ways. Special treatment still occurs in American courts (Johnson, 2003; Nagel & Johnson, 1994; Steffensmeier & Demuth, 2000; Steffensmeier & Demuth, 2006). Though race, gender, and age are the focus of the current study, researchers have found other factors that may influence judicial decisions (e.g. criminal background, offense severity, type of legal counsel). In order to gain a theoretical perspective on sentencing disparity, Steffensmeier and his colleagues (1998) created their focal concerns theory in which they expand upon why judicial officials often disregard sentencing guidelines and utilize discretion in their decision making process.
Focal Concerns Theory
The issue of judicial decision-making has very few ties to theory. Because there were no existing theories that could explain this issue, Steffensmeier and his associates (1998) proposed a focal concerns theory in the late 20th century. The three concerns of this theory that were attributed to the explanation of judicial sentencing disparities were “offender blameworthiness and the degree of harm caused the victim, protection of the community, and practical implications of sentencing decisions” (Steffesmeier et al., 1998, p. 766). The focal concern of offender blameworthiness was further explained as the liability of the offender as well as the degree of harm inflicted upon the victim. For example, a crime involving physical harm to a victim may warrant a stricter punishment than a victimless crime, such as drug crimes.
Researchers agree, according to Steffensmeier and his colleagues (1998), this is the most significant factor in judicial sentencing. Factors that are typically taken into account by the judge in regards to offender blameworthiness include prior criminal history, prior victimization, and the offender’s role in the offense (Steffensmeier et al., 1998). These variables are commonly referred to as legal variables, and are typically incorporated into state’s sentencing guidelines.
Offenders with extensive prior criminal histories are more likely to receive a harsh sentence. Defendants who were an accomplice to the crime at hand and helped put the offense into motion, but did not actually commit the act, may receive a more lenient sentence than the defendant who is ultimately at fault for the offense. Other legal factors include offense severity, number of charges, and the method of conviction (e.g., plea bargain or trial; Doerner & Demuth, 2010).
Protection of the community is considered a focal concern within sentencing research because judges characteristically sentence offenders based on what is going to provide the greater good for the jurisdiction in which he or she serves. Therefore, judges tend to sentence based on the threat the offender presents to the community. For example, if a defendant has an extensive history of violent criminal acts, such as assault or rape, a judge may sentence him or her to a longer period of incarceration in order to relieve the community of the danger posed by this person. The larger a threat to the community an offender is seen to be, the larger or more serious their sentence may be.
The focal concern of practical constraints and consequences refers to the concerns of courtroom officials, victims, and offenders (Steffensmeier et al., 1998). Sentencing can affect the flow of productivity within the courtroom in respect to working relationships and workloads; therefore, the judge must take into account how his or her sentencing decisions will affect the people that s/he works with on a daily basis. Judges must consider the offender’s ability to serve the sentence imposed on them, while keeping in mind how the sentence will affect the offender in terms of familial relationships, health conditions, and employment opportunities. Judicial officials must consider their own well-being as far as local politics and standing within the community. The decisions they make in court could affect their relationship with the public (Steffensmeier et al., 1998). Judicial decision-making affects all of the individuals involved in the case, not simply the offender. Therefore, the implications of the sentence must be examined from several different viewpoints and the judge must weigh the pros and cons before entering his or her sentencing decision.
The intersection of all three focal concerns described by Steffensmeier and his colleagues (1998) create a framework for judicial decisions and explain why a judge may deviate from the prescribed guidelines of sentencing within their district or state. The circumstances surrounding the case, as well as individual offender characteristics, and the general opinion of society towards crime all play a part in directing the decisions of court officials. Critics of judicial sentencing often forget that judges are simply human, just as they are, and may allow other factors to influence their courtroom decisions. Stereotypes perpetuated by the media and community often influence decisions of many different types, including sentencing decisions (Steen et al., 2005). Much like any other aspect of the criminal justice system, judges form stereotypes and prejudices in accordance with the opinions of greater society (Walker et al., 2012). Laws also change due to societal influences. For instance, in recent years the public has formed an opinion of no tolerance towards impaired driving, as seen with the formation of groups such as Mothers
Against Drunk Driving (Travis III, 2012). In return, laws have been rendered more strict towards offenders who choose to drink and drive. Some states require those convicted of driving while intoxicated to serve mandatory incarceration sentences, regardless of the factors surrounding the offense (Travis III, 2012).
Just as legislators may change laws in response to social change, judges may allow societal influences to modify their decision-making strategies. Research has found that gender, race, and age are three variables that are highly influential within the court of law. Steffensmeier and his associates (1998) found that being young, black, and male increases ones chances of receiving discriminatory dispositions. While the variables of age, gender, and race have been found to have effects on judicial discretion, the intersection of the three has been found to be more statistically significant than the individual variables (Walker et al., 2012). There are many ways researchers have measured sentencing departures in regards to gender, age, and race. For each of the sections below, I have organized findings by upward and downward departures in sentencing based on guidelines, lengthened or shortened sentence length, and the likelihood of the offender being sentenced to incarceration or community corrections.
The impact of gender on sentencing discretion has been evaluated by many researchers (Crawford, 2000; Doerner & Demuth, 2010; Johnson, 2003; Rodriguez et al., 2006; Steffensmeier et al., 1998), though mixed results have been found. Gender is an important concept to study in relation to sentencing because of the historically paternalistic and chivalrous view of the criminal justice system (Rodriguez et al., 2006). Women offenders are often seen by the legal system as less responsible for their actions and rather than be punished, they need to be protected (Mustard, 2001; Rodriguez et al., 2006). Consequently, the court system tends to treat female offenders differently than male offenders. While some studies have found no significant difference in the sentencing of male and female offenders (Kruttschnitt & Green, 1984), the majority of research on gender and sentencing has found that females are sentenced more leniently than males, even when the two offenders have committed the same offense and have similar criminal background histories (Nagel & Johnson, 1994). In previous research, judges themselves have confirmed the preferential treatment of female offenders by the court (e.g.
Johnson, 2003; Nagel & Johnson, 1994; Simon & Ahn-Redding, 2005). There are multiple factors that may influence a judge to treat a female offender differently than a male, such as pregnancy, being a single mother, or having been victimized in the past (Nagel & Johnson, 1994).
Although the above-mentioned sentencing discrepancies are typically beneficial for female offenders, resulting in downward sentencing departures or community corrections instead of incarceration, some scholars believe that the favoritism shown by judges towards females leads society to believe that women are helpless and are not capable of making responsible decisions (Moulds, 1980). Judges are often biased in which females they choose to help as well. Rodriguez and his associates (2006) found that although females often receive preferential treatment in sentencing compared to men, they were only given downward sentencing departures if their crime did not violate gender norms. Typical crimes attributed to female offenders include shoplifting, drug use, and forgery (Rodriguez et al., 2006). Women that commit masculine crimes, or those involving violence, are seen as “evil” and are not likely to receive preferential treatment from judges (Rodriguez et al., 2006). Crawford (2000) studied gender in relation to habitual offender sentencing. For crimes such as murder or arson, females were strictly sentenced. For other crimes, such as minor drug offenses or other petty charges, the habitual offender statute was often ignored in regards to female offenders (Crawford, 2000).
Johnson’s (2003) study of sentencing departures from guidelines concluded that females had a 63% greater chance of getting a more lenient sentence than the guidelines called for, and the odds of a male getting a more severe sentence were 31% greater than that of females (Johnson, 2003). Mustard (2001) also found a large instance of gender-related sentencing departures, accounting for 67% of all federal sentencing disparities from 1987 to 2001.
However, Johnson (2003) believed that these departures from sentencing guidelines may have involved complicated processes that were difficult to control for and varied over time and context, and were therefore challenging to blame specifically on the effects of gender (Johnson, 2003). For example, factors involving the severity of the crime may vary between genders and have more of an impact on sentencing decisions rather than the actual gender of the offender.
Females are typically less violent than males; therefore, a female and a male offender that have committed the same crime may have used varying levels of violence or harm. The violence may have been more influential in the sentencing decision than the gender of the offender (Johnson, 2003).
Another factor noted by Mustard (2001) that may affect the sentencing of females is that they often have less extensive criminal histories than men. Males on average had a higher offense level and a longer criminal history score than women (Mustard, 2001). Parenthood may also play a role in the downward departures of sentences as Koons-Witt (2002) found that female mothers were sentenced more leniently than females without children, men without children, and men with children. Women are typically seen as the primary caretakers of the family; therefore, their imprisonment could have a negative effect on their innocent children and sometimes judges try to avoid this during sentencing (Nagel & Johnson, 1994).
Gender has also been attributed to the type of sentence imposed on an offender, as evident in Steffensmeier and his colleague’s (1998) study. Steffensmeier and his associates (1998) hypothesized, in their study, that male offenders would be more likely to receive a sentence of incarceration, and that their sentences would be longer than those imposed on female offenders. Their study yielded results that provided that the odds of incarceration for a female are half that of a male, but when they do receive prison or jail sentences, the term is an average of 6.5 months less for females than for males. It is important to note that the researchers found that gender effects on sentencing were more significant than those found of race and age (Steffensmeier et al., 1998). Rodriguez and his colleagues (2006) also found that females were given preferable sentences, as they were 12 to 23 percent less likely to be sentenced to prison than men, and that cultural stereotypes, such as paternalism, may instigate this effect. The researchers also found that males were 2.1 times as likely to be given prison sentences than females, and that female prison sentences were on average 3 years less than those imposed on males (Rodriguez et al., 2006).
Sentence length is often shorter for female defendants than for males. A study conducted by Mustard (2001) used a large sample of federal offenders sentenced after the 1984 Sentencing Reform Act to examine the prominence of gender based sentencing discrimination. The Sentencing Reform Act prohibited the influence of certain defendant characteristics, such as race, sex, national origin, creed, socioeconomic status, or religion on sentencing decisions (Mustard, 2001). Empirical testing of the sample provided that the average sentence for a male defendant was 278.4% greater than that of a female. It is important to note that most researchers have found these results vary across different margins and may be affected by other variables, such as socioeconomic class or the details of the offense (Mustard, 2001). For example, race may be a contributing variable, as minority females have historically been sentenced more strictly than white females (Nagel & Johnson, 1994). These findings assert that while gender is often a factor that effects sentencing decisions, components not accounted for may influence the decision as well.
Racial discrimination can be seen in almost any aspect of American society, as many have seen through recent political and legal issues, such as the riots in Ferguson, Missouri or the Eric Gardner case in New York. Similarly, the American Criminal Justice System is not immune to racial discrimination and disparity (Bushway & Piehl, 2001). The criminal justice system has been criticized of racism in many different agencies, including police departments, prosecutor’s offices, and the court (Blair, Judd, & Chapleau, 2004). Minority incarceration rates are much higher than that of whites, and many researchers attribute the disproportionate amount of minority inmates to racist tendencies of sentencing judges (Walker et al., 2012). For example, because judges are imperfect humans as well, they may tend to adhere to the negative social stereotypes attributed to minorities. Blair and her colleagues (2004) found that these stereotypes are often taken into account by judges, especially if the offender has typical “afrocentric” features or features commonly attributed to minority groups.
Other bodies of research have found varying explanations of racism in the courts. Five reasons explaining racial disparity within the courts were proposed by Walker and his colleagues (2012). The researchers believed that minorities may commit more serious crimes and have more serious criminal histories, they are more likely to be poor, and are more often affected by seemingly neutral legislation (i.e. crack laws). They also thought that the judges may use socially reinforced stereotypes against minority offenders in sentencing, and that racial disparities only occur in certain contexts (Walker et al., 2012). The researchers also explained that race is often tied to variables such as socioeconomic status, which may influence judicial decision-making. For example, when deciding a sentence for an African-American defendant, a judge may assume that because of his race he would not be able to afford to pay fines or probation fees, and choose to sentence the defendant to a jail term instead of a community corrections sentence. Socioeconomic status has also been found to increase the severity of an offender’s punishment, as judges may use a poor or destitute status of the offender to rationalize the belief that the offender will recidivate and should receive a more punitive sentence that would keep them off of the street and deter them from re-offending (Starr, 2014).
Race and sentencing departures, both upward and downward, have been found to have a significant relationship. Many studies have shown that white defendants receive less severe sentences than non-white defendants (Johnson, 2003; Steffensmeier & Demuth, 2001; Thomson & Zingraff, 1981). For instance, Johnson (2003) found that the odds for a lessened departure from sentencing guidelines is 25% less for blacks than whites and a striking 56% less for Hispanics compared to whites (Johnson, 2003), or that white defendants were more likely to receive a more lenient sentence than were black or Hispanic defendants. Additionally, for upward sentencing decisions in which harsher sentences were applied, being a black defendant increased the chances of being punished more severely by 21%, and being a Hispanic defendant increased the chance by 39% (Johnson, 2003). This corresponds with previous findings from 1977 that nonwhites had the most severe sentences, while whites had the least severe sentences (Thomson & Zingraff, 1981). Mustard (2001) found that sentencing departures accounted for 56% of the racial disparities discovered in his study. These departures consisted of any sentence that strayed from the prescribed guidelines for the offense, including both downward (more favorable sentences) and upward (more harsh sentences) departures (Mustard, 2001).
Steffensmeier and Demuth (2001) found also that disparities between races were significant, and whites were found to be sentenced the most leniently in both drug and non-drug offenses.
Blacks received harsher penalties than whites, and Hispanics received the harshest punishment out of any of the racial groups (Steffensmeier & Demuth, 2001). The researchers proposed that this Hispanic “disadvantage” was statistically important to the research of sentencing discretion (Steffensmeier & Demuth, 2001). While these results show that race does influence downward and upward departures, it is notable that researchers have stipulated that factors such as prior incarceration and inter-racial victimization may be more influential on sentencing decisions than just race (Thomson & Zingraff, 1981). Still, race does seem to play a role.
Regarding sentence length, much like downward departures, white defendants receive significantly shorter sentences than defendants of other races (Mustard, 2001). For example, Mustard (2001) found that white defendants received an average sentence of 32.1 months, while Hispanics received 54.1 months and blacks 64.1 months. However, it was also noted that blacks had a more extensive average criminal history and a higher offense level than white defendants (Mustard, 2001). It was found that bank robbery and drug trafficking were the two offenses that exhibited the largest black and white defendant difference, and the difference between Hispanics and whites was mostly from drug and/or firearm trafficking (Mustard, 2001). Overall, the racial differences in sentencing were most apparent in the offenses of bank robbery and drug trafficking. This finding was attributed to the fact that these were two of the most frequently committed crimes at the time of the study, and that prior criminal records may have influenced these departures from the prescribed sentence (Mustard, 2001). The results of Mustard’s (2001) study also posited that being an American citizen was beneficial in all offense cases, which may disproportionately bias sentencing of Hispanics.
The likelihood of being sentenced to jail or prison also seems to vary by race, Steffensmeier and his colleagues (1998) found that both blacks and males were more likely to be given prison or jail sentences than any other classification of defendant, but that blacks and males also have higher offense levels and criminal record scores (Steffensmeier et al., 1998).
Similarly, Steffensmeier and Demuth (2001) found that white offenders were least likely to be incarcerated and were likely to receive shorter sentences than blacks or Hispanics, however, the black and Hispanic defendants were also more likely to have more influential criminal histories. Research by Kramer and Steffensmeier (1993) found race to be an influencing variable only when compared to sentences of probation compared to sentences of active time. Black defendants were eight percent more likely to be sentenced to active time in jail or prison than whites, and were overall 1.54 times more likely to be sentenced to incarceration as compared to whites (Kramer & Steffensmeier, 1993). These studies have also shown that influence of legal variables, such as prior criminal history and offense details, were more influential in decision making than extralegal factors (Steffensmeier & Demuth, 2001). Additionally, Steffensmeier and colleages (1998) noted that gender and age were stronger predictors of the likelihood of incarceration than race. However, this research is still important in relation to the effect of race on sentencing, as racial disparities were found.
Although the above-mentioned studies found statistical significance regarding race, other factors may have been influential in the results. Steen and her colleagues (2005) analyzed drug offense court cases in Washington from 1995 to 1998 and found that while race played a significant part in sentencing decisions, there were multiple other factors that also played into the decision. The results of the analysis found that if a defendant more closely resembled a “typical” offender, meaning they were drug dealers with a prior criminal record, then the judge was more likely to sentence them harshly, both for white and black offenders. However, the results also found that judges were more likely to deviate from the sentencing guidelines for white offenders who did not fit the stereotypical offender description than for the non-typical black offenders (Steen et al., 2005). The researchers attributed these results to the fact that judges often do not have time to get to know the offender, nor their story, so they automatically associate them with the stereotype that fits them the best (Steen et al., 2005). While the results of this study showed that there was a presence of racial bias in sentencing decisions, one cannot be certain that the race of the defendant was the largest factor in the decisions. Straying from the socially constructed concept of race, Blair and her associates (2004) investigated the effects of afrocentric features on sentencing decisions, such as having dark skin, wide noses, and full lips. They believed that race did not fully account for the variance in sentencing disparities; therefore, they focused their research on identifying offenders with afrocentric features and analyzing their sentences compared to offenders who did not have such features. Blair and his colleagues (2002) found that offenders possessing these characteristics, whether they were white or black, were sentenced more harshly than those who did not possess such features.
Perhaps the most imperative research previously conducted on the effects of race on judicial sentencing decisions was a meta-analysis on race and sentencing conducted by Pratt (1998). The bulk of the research on variables effecting judicial sentencing decisions has been in regards to race. Pratt (1998) claimed that most of the research previously done on racial effects on the decision making by judges has been “contradictory and inconclusive” (p. 513). Pratt (1998) analyzed data published from 1974 and 1996, and focused on how the researchers defined the variables of sentencing decisions and race. The results of the statistical analysis found that the only significant variable in relation to sentencing was offense severity. Pratt (1998) attributed this result to the fact that researchers operationalize race in several different ways, and that research should continue on race and judicial discretion because the absence of racially motivated decision-making cannot be empirically proven. Mitchell (2005) also conducted a meta-analysis and found similar results to Pratt (1998). He asserted that there may exist a small difference in sentencing that can be attributed to race, but the most important factor in sentencing decisions were legal factors, such as severity of the crime, type of attorney, or mitigating circumstances (Mitchell, 2005). In accordance with Pratt’s (1998) findings, Mitchell (2005) claimed that sentencing research is flawed and often relies on a small of amount of data.
Measures of race and disparity are often defined differently across jurisdictions, which pose a threat to the validity of sentencing data.
The age of the offender being convicted or sentenced has the potential to influence prosecutorial and judicial decisions. Americans in general have displayed a tendency of treating younger citizens with more care and leniency because they do not necessarily expect them to know what is right or wrong in every circumstance. In the courts, offender age may influence the leniency of the sentence given (Doerner & Demuth, 2010). However, there has been very little prior research done on the effect of age, as most sentencing researchers simply control for age and expect a linear relationship. One study by Steffensmeier, Kramer, and Ulmer (1995) found that age has a curvilinear relationship with sentencing discrimination, meaning that the youthful and elderly offenders received lenient sentences and young adult or middle-aged
offenders received the harshest punishments. Johnson (2003) also found interesting results in regards to offender age with elderly defendants receiving lower sentences than young adults. Johnson (2003) deduced that older offenders are seen as less of a threat than the younger offenders; therefore they were likely to receive more lenient sentences. Doerner and Demuth (2010) also asserted, based on the results of their study, that older defendants received less harsh sentences than younger defendants, although this effect was less likely to appear in cases involving females.
Steffensmeier and his colleagues (1998) found that defendants under 21 and over 50 years of age received the most lenient sentences, while defendants aged 21 to 29 received the harshest. After age 30, the relationship is linear and decreases as the defendants rise in age (Steffensmeier et al., 1998). The researchers accounted for age-based judicial discretion in a similar way to Johnson (2003) and proposed that judges see youths and elderly as less of a threat to society than middle-aged adults. However, it was found that this influence of age is dependent on gender and race. The age effect only applies to female defendants if they are over 50 years of age. Both white and black young adult offenders are sentenced the most harshly out of any race and age combination (Steffensmeier et al., 1998). Though the above-mentioned studies found a significant relationship between age and sentencing discrepancies, other demographic variables, such as race or gender, may have influenced the observed correlations.
Few studies include age as an independent variable; therefore, further research should include a closer look at age in order to identify any concrete causal relationships with sentencing decisions.
The Intersectionality of Gender, Race, and Age
While most research on sentencing discrimination and disparity has focused on the individual effects of gender, race, and age on sentencing decisions, a small portion of research has been dedicated to the intersectionality of the three factors. In their 1998 study of sentencing disparity, Steffensmeier and his associates examined the role of gender, race, and age on sentencing decisions, as the researchers believed that the three were interconnected to each other and contended that no prior research had been done in this context previously. Using the Pennsylvania Commission on Sentencing’s data from 1989 to 1992, a total of 139,000 cases were drawn for the sample and analyzed on three gender-race-age combinations. The results indicated that if a defendant is a young, black male, then he is the most likely to receive a harsh sentence. The effect of race was stronger on younger offenders than older offenders, specifically with males. The offender’s age was more influential during sentencing for males than females. It was also determined by the study that each variable affects the other, and that the intersectionality of the variables was more significant than the variables on their own (Steffensmeier et al., 1998). These findings are significant because they bring heavy implications to light that actors in the criminal justice system should recognize, research, and attempt to fix.
Another study, conducted by Steffensmeier and Demuth (2006), focused on the relationship between gender, race, and sentencing decisions. In regards to sentence length, men were found to receive incarceration sentences that were 20% longer than female sentences (Steffensmeier & Demuth, 2006). Contrary to popular belief promoted by the media, white females did not consistently receive more favorable sentencing decisions than minority females. Hispanic females received the shortest sentences and black females received the highest, while
white females fell in between the two (Steffensmeier & Demuth, 2006). Doerner and Demuth (2010) found that young black males were likely to receive the longest sentence out of any age- race-gender group. Opposing the findings of Steffensmeier and Demuth (2006), Doerner and Demuth (2010) found that black females received shorter sentences than Hispanic females, and both Hispanic and black females were sentenced more harshly than whites, which showed that white females did in fact receive preferential treatment. Overall, Hispanics and blacks were sentenced more harshly than whites, males were sentenced more harshly than females, and younger defendants were sentenced more harshly than older defendants (Doerner & Demuth, 2010). The findings of this study are important because of the Sentencing Commission’s promise to exclude race, gender, and age from judicial sentencing decisions (Mustard, 2001).
Although there may be other variables contributing to the above mentioned relationships, research has clearly found that judges are still somewhat relying on extralegal variables during their decision making process.
Research has also found differences in the chance of incarceration or community corrections based on gender, age, and race. Steffensmeier and Demuth (2006) found that Hispanic females had a 67% chance of being sentenced to incarceration. White and black females’ likelihood of incarceration was much less, therefore presenting a disparity in the treatment of Hispanic females. The chance of males receiving an incarceration sentence was 71% higher than that of females, and females received more favorable sentences overall across the white, black, and Hispanic groups (Steffensmeier & Demuth, 2006). Hispanic and black men were more likely to be given a prison sentence than white males. The researchers found that gender differences were not consistent across racial and ethnic groups, in that the decision of sentencing of females to incarceration was not effected by their race (Steffensmeier & Demuth,
2006). Doerner and Demuth (2010) found that young Hispanic males were found to be the most likely to receive a prison sentence, though young black males were almost just as likely as the Hispanics. The researchers attributed some of these differences to legal factors such as culpability and criminal risk. However, these factors may have also been influenced by gender or race.
Research on the effects of age, race, and gender on sentencing decisions is important to the advancement of the criminal justice system because of the simple notions of justice and equality in our county. Although legal variables, such as offense severity, offense type, type of counsel, and previous criminal record are warranted to be taken into consideration during sentencing, no one, regardless of whether or not they are classified as an offender, should be judged or punished by the color of their skin, their age, or their gender. These are all factors that cannot be changed or eliminated and should be treated as such.
The current study attempts to investigate sentencing discrepancies, especially disparities involving race, gender, and age in order to extend current literature on the topic. Current criminological literature lacks relevant research regarding sentencing discretion and disparity (Ulmer & Johnson, 2004). Although discretion is an important privilege to uphold for criminal justice agents and actors, both citizens and researchers alike have a duty to promote equality and fairness for all, even for those who have broken the law. The current study provides insight into criminal sentencing decisions in Ashe and Watauga counties in western North Carolina. The study adds a regional perspective to the subject, as previous research has focused on mainly on federal sentencing. Race, age, and gender were focused on specifically in order to detect any
judicial discrimination in the sentencing decisions in the selected cases. The research was guided by the testing of three hypotheses:
H1. Younger offenders are more likely to be found guilty of their offense and receive fines, probation, or active time than older offenders;
H2. Male offenders are more likely to be found guilty and receive fines, probation, or active time than female offenders; and
H3. Nonwhite offenders are more likely to be found guilty and receive fines, probation, or active time than white offenders.