Extra-legal factors and judicial discretion in the criminal justice system impact minorities when it comes to bail and sentencing length. This subject has been a controversial topic for decades and continues to be one of the most widely debated in social research. Minorities make up a dominant percentage of the total population in jails and prisons in the United States. "More than 600,000 individuals are incarcerated in local jails, and over eleven million admissions are made to these facilities each year, with over half of these individuals awaiting trials" (Schlesinger, 2005, p.170). Recent research implies that there is racial disparity in the pretrial processing stage for bail and determining sentence length for drug cases for minority offenders (Demuth and Steffenmeir, 2001). In other words, judges are more likely to incarcerate minorities than grant bail, community service, probation, or alternative sentencing. Researchers rely on the focal concern perspective to explain this phenomenon. The Focal Concern Perspective state that: due to lack of information, time constraints, and socio-economic factors, minority offenders are more at risk for stereotypes, which affect their outcome in the criminal court process. With such disparities, the question becomes: What causes racial disparity in the pretrial and sentencing process? In order to answer this question, one must first explore the structure of the bail and sentencing phases. This paper, through a review of research literature, seeks to show that the impact of extra-legal factors and judicial discretion run rampant among the criminal justice system, especially when it comes to the pretrial and sentencing processes for minority offenders.
When attempting to articulate racial inequalities in the criminal justice process, it is important to begin with the application of the law. There are three avenues that a judge can administer to a defendant for pretrial processing: denial of bail, bail amount, and non-financial release (ROR). Bail reform legislation was implemented in the mid 1900's as a guideline for judges to follow. Using the criteria, judges can determine if a defendant is worthy to be released on their own recognizance. Judges are required to consider the safety of the community when making the decision of bail. This is where an opportunity for racial disparity can occur, with judges using their perspective of the defendant's characteristics.
In determining whether to grant bail, several factors are considered. In the denial of bail, characteristics concerning dangerousness and the capacity for violence bear weight. In a non-financial release, the risk of the defendant leaving the country to avoid punishment is considered. Immigration and citizenship play a large role here affecting minority offenders. Bail amounts can be based on whether the offender has a prior offense, the nature of the current offense, or the defendant's blameworthiness (Schlesinger, 2005, p. 172). This policy is implemented to stop disparities, but the amount of discretion of the judge leaves room to consider extra-legal factors, creating a personal perspective, not just a legal one. Stereotypically, the attributes that are listed are popular characteristics for minorities in the American criminal justice system. Minorities are often stereotyped as violent and irresponsible, which could affect the pretrial outcome decisions. The bail guidelines in the reform legislation should be implemented in order to exclude personal biases of judicial discretion based on extra-legal characteristics.
Denial of Bail:
Despite the stature innocent until proven guilty, minority offenders are often jailed placed in custody and denied bail. In the US Department of justice (2002), Over a quarter of the individuals incarcerated in the United States are being held in local jails, with over half of these individuals being held pending trial (as cited by Schlesinger, 2005, p.170). This gives defendants less opportunity to prepare their defense, and the pretrial incarceration may have a negative effect on the trial outcome (Demuth, 2003). In the judge's decision to deny bail, the judge considers the safety of the community and how dangerous the defendant seems to appear while in court. On the other hand, there are other extra-legal factors that a judge also considers "-- criminal history, employment that may reflect past racial and ethnic biases e.g., differential law enforcement, hiring discrimination" (Demuth, 2003, p. 876).
Studies relative to the denial of bail show that the judge's decision to deny bail derives from the severity of the defendant's current crime, and the defendant's prior criminal background. Findings "indicate that Hispanic and Black defendants are more likely than White defendants to be denied release" (Demuth, 2003, p. 895). "Nearly nine percent of Blacks are denied bail, compared to approximately seven percent of Whites and Latinos; Whites are six percentage points more likely to be granted a non-financial release than either Blacks or Latinos" (Schlesinger, 2005, p.177). This purports the disparity in bail, based solely on a discretionary decision given by those in authority (typically a judge). However these disparities were not only found within the denial of bail, but also in the case of granted bails-the controversy also lies within its amount.
In the decision to grant bail the judge is to go through the guidelines of the bail reform and base their decision on three factors: the community safety, flight-risk and current offense.
If the judge decides that the defendant does not meet the guidelines, they are denied bail. If the judge feels as though the defendant is not worthy of release on their own trust, or ROR (release on own recognizance), but do not see a reason to deny bail the judge then sets bail: a surety bond or cash bond (Katz and Spohn, 1995, p. 162).
The amount of bail a defendant receives is based on different criteria, than that of the norm. Race, at this stage plays little to -no -role, rather it depends on the type of crime committed, as well as socioeconomic factors. Katz and Spohn (1995) suggest that researchers have found that extra-legal factors have an influence on the decision of bail amount, such as "offense seriousness and prior record, as well as by the defendant's community ties, relationship to the victim, personal appearance, demeanor, and socio-demographic characteristics" (p. 163). Blacks were more likely to receive higher bail based on specific types of cases. These were cases in which the defendant was charged with a serious offense, there were no prior convictions, no weapon used, if the victim and defendant were associates, and if the defendant could not afford counsel (Katz and Spohn, 1995, p. 175). This shows that the decision to grant the amount of bail is based on the judge's personal stereotypical view after deciding on extra-legal factors. Patterson and Lynch (1991) argue that race doesn't have an effect on the decision to grant bail or bail amount. However, they concur that minorities are given a higher amount of bail then that of their counterpart (Katz and Spohn, 1995, p. 165).
Release on Recognizance for Drug Crimes:
In the decision to grant non-financial release, the defendant being a "flight risk" is the factor that the judges use to make their final decision. A judge looks carefully at the resources and prior record a defendant has and determines whether or not they will try and escape from the country to avoid punishment. Extra-legal characteristics are also considered if the defendant is an alien or immigrant; it can have an ill effect on the judge's decision to grant non-financial release (Schlesinger, 2005, p. 173)
Latinos are the most frequent to be denied non-financial release than any other minority group, often charged with drug offenses and trafficking. In fact, "42% compared to that of blacks at 37%, and have a larger violent offense rate then their counterpart" (Demuth, 2003, p. 890). According to Demuth (2003), the denial of bail is the same across the board for "Whites, Blacks and Latinos (about 33% for all groups), (p.892)". However, this author failed to take into consideration the type of offense, as drug crimes are considered by judges to be the most severe. This makes it biased against Hispanics as they are mostly considered, arrested and sentenced, for said crimes.
Focal Concerns Perspective in Pretrial Processing:
Recent research dealing with the focal concerns perspective has used it as a theoretical concept to explain the court decision making and case processing in the pretrial process (Albonetti, 1991; Demuth, 2003; Katz & Spohn, 1995; Nagel, 1983; Schlesinger, 2005). This theory explains that judges make decisions based on limited amounts of information about the defendant's case, relying on the offender's present and prior offense, and extra-legal characteristics such as race, ethnicity, gender, age and social status (Schlesinger, 2005, p.172).
The theory states that if judges are to make wise decisions, they are to base their decisions solely on the defendant's future behavior, to determine pre-trial release, to grant bail, the amount of bail, and non-financial release. Judges focuses on three factors in their decision: protection of the community, "blameworthiness", and lastly if the defendant is a "flight risk" (Schlesinger, 2005, p.172).
Protection of the community consists of "dangerousness" and the probability of the defendant reoffending (Schlesinger, 2005, p. 172). They consider these factors, but specifically aim towards prevention of re-offending (Demuth, 2003). Blameworthiness, on the other hand, consists of the defendant's ability to reoffend, the prior and current offense and how harsh was the crime that was currently committed (Demuth, 2003). Finally, flight risk consists of the defendants' ability to escape from punishment and re-offend (Demuth, 2003; Schlesinger, 2005).
As an effect of limited information and time spent on a defendant's case, a judge is then forced to make legal decisions relying on the defendant's prior and current offense, but also on extra-legal characteristics (Schlesinger, 2005). Race, class, and ethnicity play a big role in the "application of laws and sanctions" (Nagel, 1983, p. 481). All of these factors can be summed up as stereotypes; however, this is the criteria in which a judge is to provide a "satisfactory" decision (Albonetti, 1991; Farwell and Holmes, 1991 as cited by Demuth). Unfortunately, deciding in this manner causes major disparities amongst defendants.
Minorities endure stereotypes more than White defendants, especially in the pretrial processes which are associated with the three focal concern perspectives that are followed in the judicial decision. According to Schlesinger, in the stereotypes of Blacks they are seen as being "aggressive, criminally dangerousness, irresponsible, and intimately connected to drug use and trade" (as cited by Gibbs et. al. 1998, p.172). Schlesinger states that on the other hand Hispanics, are seen as "lazy and irresponsible, and the rendering of the Latino "bandito" most often centers on narratives of drug trade and use-rather than violence" (as cited by Berg et. al 2002, p.172). It is seen that compared to their counterpart, White defendants, they receive the harshest pretrial release decisions. Especially, when considering the type of offense, minorities are often associated with violent crime and drug offenses. According to Albonetti (1991), there is a lack of interest in uncovering discrimination in the exercise of judicial discretion in pretrial and sentencing decisions (p. 248).
Considering the bail reform legislation that is mandated to have judges follow certain guidelines, the focal concern perspective focuses on the large amount of judicial discretion that is factored in the pretrial release decision. It is important to look at the stereotypes that are considered in judicial discretion and the racial disparities in the pretrial process and how it determines future negative incarceration decisions for minorities.
The Sentencing Reform Act was created to be used during the sentencing stage. The Sentencing Reform Act was enacted by congress in the late 1980's. This act created mandatory minimum penalties for crimes and was created for judges to use as a guideline, a way to eradicate sentencing disparities, in the federal court system. It gave full execution of the guidelines, basing the sentencing decision on the defendant's prior offense and the type of crime. According to Steffensmeir and Demuth (2000), the judge takes into consideration the defendant's prior offenses, and makes the decision as to whether or not to grant the sentence length. The guidelines do include the judge's discretion in the sentencing length. They can grant a sentence length that is under or above the sentencing range (Demuth and Steffensmeir, 2000).
First, the guidelines give the judge discretion to give a sentence length of "twenty-five percent between maximum and minimum" sentence in the guidelines. Second, a defendant sentence can be reduced if the defendant pleads guilty, which could possibly reduce the sentence. Third, a sentence can also be changed based on special reasons where the judge can stay away from the guidelines (Demuth and Steffensmeir, 2000, p. 712). Judges are allowed to give differential sentencing based on "--unusual or atypical circumstance" defendants receive this type of favor when they plead guilty or accept personal responsibility for their conduct. However, a defendant can be given a "downward departure" of their crimes if they assist the counsel with substantial information about the case (Demuth and Steffensmeir, 2000, p. 712).
Length of Time Incarcerated:
According to Demuth and Steffensmeier (2001), Blacks receive longer sentences than that of Whites. It is noted, that Whites receive more lenient punishments in comparison to minorities. This is due to the fact, in theory, that minorities tend to commit harsher and more violent crimes, as well as drug crimes, which are automatically judged harsher, and has a higher "severity score" in the federal sentencing guidelines, which are taken into consideration during the sentencing process (Demuth and Steffensmeir, 2000, p.716). Education is also a factor that determines the sentencing length. Hispanics and Blacks tend to receive the longer sentences overall, compared to their counterpart when drugs and education is a factor. Defendants who have committed a more severe crime in their current and prior conviction are more likely to be sentenced longer and more harshly (Demuth and Steffensmeir, 2000, P. 716). Also in the sentencing guidelines, in a case when defendants use a firearm, it is counted, as well in drug cases a defendant is to receive "50 months on average compared to that of non-drug related at 80 months" (Demuth and Steffensmeir, 2000, p. 716).
In the case of non- drug related crimes Blacks and Hispanics still receive longer, harsher sentencing lengths across the board. Blacks on average receive "1 month longer and Hispanics receive 16 months longer in sentencing lengths compared to Whites" (Demuth and Steffensmeir, 2000, p. 718). In the drug- related cases, Black defendants "receive sentences 10 months longer than do White defendants" (Steffensmeir and Demuth, 2001, p.161). This shows that Blacks and Hispanics receive longer sentences compared to that of White defendants.
Drug or Non Drug Cases:
When it comes to sentencing, the topic of who is punished more harshly is often debated. Prior researchers have found this to be a minute phenomenon. In research conducted by Welch et al. (1984), they found that in drug cases, Hispanics were punished more harshly than Whites but, "the differences are very small and not statistically significant" (Welch, Gruhl & Spohn, 1984, p. 260). However, this small significance is one that can be based off of past histories of cases, that "Hispanic and Black defendants convicted of federal drug crimes received more severe sentences then did White defendants--" (Steffensmeier and Demuth, 2000, p.706). The results of these disparities vary within the type of crimes, in other words drug crimes are punished more than any other. Hispanics and Blacks are those defendants that are receiving the longest and harshest sentences, making up for a bigger amount of the drug cases. "Whites make up 52.5 percent of the overall sample, compared with 36.2 percent for Blacks, 14.9 percent for Hispanics". On the other hand, "Blacks and Hispanics make up a larger percentage of drug cases; 44 percent and 17 percent of all drug cases involve Black and Hispanic defendants, respectively as compared with only 30 percent and 7 percent of non-drug cases" (Demuth and Steffensmeir, 2000, p. 715).
Racial disparities are present in cases of drug sentencing. Crack cocaine is a cheap lowly form of cocaine that is affordable in the minority community, whereas raw cocaine is seen as 'the rich man's drug'. Because crack cocaine is the choice of poor minorities, it carries a higher stigma. Persons caught with crack are given longer sentences in prison, whereas those caught with powder cocaine receives a lesser sentencing length. This suggests that there is major inequality within the sentencing realm. "Both Blacks and Hispanics have higher offense severity scores on average than do Whites, especially in drug cases, and lengthier prior records" (p.160). Hispanic and Black defendants receive harsher sentence lengths based more on drug then non-drug cases.
Relationship between Race, Gender and Age:
It is known that Blacks and Hispanics receive the harshest sentencing lengths. Age, race, and gender also play a factor in racial disparity in sentencing for a defendant. Steffensmeir, Ulmer and Kramer (1998) state in the case of age, younger defendants receive longer or harsher sentences compared to that of older defendants. "Elderly offenders (--age 50 and over) are treated more leniently than younger offenders (e.g. offenders in their 20s)" (as cited by Champion, 1987 et al., p. 765). Judges appear to view young minority defendants as more careless and irresponsible. Among those of other age groups, they see older defendants as more responsible in the release decision in sentencing (Steffensmeir, Ulmer and Kramer, 1998).
In terms of race, it is mentioned that Black defendants receive longer sentencing lengths. According to Steffensmeir et al. (1998), prior research has shown inconsistent results of race playing a factor in sentencing. In the case of gender it is shown that minority males receive a harsher sentence then that of female defendants. Females tend to receive more lenient outcomes in sentencing. In the comparison between race and gender Steffensmeir et al. states that "race effect is greater among female than male offenders; Black females will receive sentences more similar to White males, but much harsher than those of White females" (as cited by Klein and Kress, 1976. P. 765).
Minority young males are the most likely to be stereotyped in the criminal justice system during the sentencing process. Black males are portrayed as criminals from helping factors of mass media. Blacks are seen as "drop outs, delinquents, dope addicts, street smart dudes, and welfare pimps" (Steffensmeier, Ulmer and Kramer as cited by Gibbs, 1998, p. 769). Young Hispanic male defendants are also stereotyped by the judicial system during sentencing decisions and are seen as being lazy and irresponsible. This could in return create a negative disposition for Black and Hispanic young males in the sentencing outcome. In the case of age, race and gender minorities are more harshly sentenced overall.
According to Steffensmeier at al. (1998) on interview data on judges' views in Pennsylvania regarding age, race, and gender concluded that young Black males were seen as future crime risk, Whites were more likely to not be sent to state prison in a higher Black population, for the risk of Whites being harassed, women were seen as less harmful to the community, and Black, young males were seen as lacking ties to community, compared to that of women which could inevitably deter the defendant from reoffending in the future (Steffensmeir, Ulmer, and Kramer, 1998, p. 786). This significant finding indicates that considering age, race and gender, sentencing outcomes for young minority males are harsher and based on judicial discretion and stereotypes.
Outcomes in sentencing; private counsel versus public defenders:
In the case of minorities, with all of the bias treatment that minorities receive they are in need of justice and a fair trial in order to receive a fair sentence. What happens in the case where the defendant does not have the socio-economic status to afford a counsel? Counsel is then provided for them (Wheeler and Wheeler, 1980).
The fact of having the available resources plays a key role in the type of counsel a defendant receive and eventually, the sentencing outcome. There are three types of counsel for defendants. There is a public defender for poor defendants, private counsel, and pro-bono representation. The public defender is the most popular and is usually by the court for indigent defendants. On the other hand, private counsel is expensive and pro-bono representation is volunteer counsel (Wheeler and Wheeler, 1980). Whatever type of counsel that a defendant can afford can have an important outcome, especially for minorities coming from the poverty stricken areas, affecting their pretrial and sentencing results. Public defenders usually obtain average sentences for their defendants, those with current offenses and prior offenses, but in robberies they have better outcomes then that of private attorneys (Wheeler and Wheeler, 1980). The choice of a public defender is based on if the defendant can afford bail or financial release. According to Wheeler (1980), "A very large proportion of his clients remain in jail (55%), compared to only (17.4 %) of the clients of private attorney" (as cited by Smith, 1970, p. 321). With the lack of information and over work load it can mean life or death and resulting in them having to plea bargain instead of going through a fair trial like that of private attorney.
A study that researched the variances amongst private and public defenders concluded that in the case of lower sentencing lengths; private attorneys were more successful than that of a public defender (Wheeler and Wheeler, 1980) with defendants that had a prior offense. Private attorneys attained lower guilty rate with "Type I (attempted murder, murder, rape, robbery), II (burglary, arson, theft), and IV (felony driving while intoxicated, forgery, auto theft) offenses. Whereas, public attorneys obtained lower conviction rates with Type III (drug related) offense" (Wheeler and Wheeler, 1980, p.325). Defendants of these two counsels are equal in conviction rate, but private attorneys have better outcomes on sentencing then that of convictions for defendants who've committed a felony offense (Wheeler and Wheeler, 1980, p. 327).
Focal Concerns in Sentencing:
Many researchers have looked into extra-legal factors and how it affects the sentencing outcome (Steffensmeier and Demuth, 2000, Steffensmeier, Ulmer and Kramer, 1998 and Steffensmeier and Demuth, 2001). Researchers have used the focal concerns perspective as a theory to explain the court decision making in sentencing. This theory calls for judges to make reasonable decisions on an offender's sentence. These decisions are to be based on three focal concerns "blameworthiness", "protection of the community" and "organizational constraints and practical consequences" (Demuth and Steffensmeier, 2000, p. 709).
Blameworthiness means that the punishment is to be proportionate to the crime that was committed. The sentence length increases based on how harmful the crime was that was committed; how responsible the offender is, their prior conviction history (Steffensmeier, Ulmer and Kramer, 1998, p. 766). Protection of the community focuses on the need to incapacitate and prevent offenders from further offending (Steffensmeier, Ulmer, and Kramer, 1998). Judges sometimes base their decision on the offender's prospect behavior in the future "(--dangerousness, recidivism--)" especially information on the offenders' prior offenses "(--e.g., violent, property, drug--)" as well as the offenders extra-legal factors such as "education, employment, or community ties" are factors that judges use in their decision to predict the offenders potential behavior in crime (Steffensmeier and Demuth, 2000, p. 709). Lastly, organizational constraints and practical consequences refer to "organizational and individual" concerns. Organizational concerns "include [s] maintain [ing] working relationships among courtroom actors, correctional crowding and resources" (Steffensmeier, Ulmer, and Kramer, 1998, p. 767). Individual concerns include the offender's ability to serve their time and the disruption of their household, kids and, other close family members (Steffensmeier and Demuth, 2000, p. 709).
In conclusion, we have worked hard to end inequality, though we have ended some and have come a long way, the fact still remains that there are racial disparities in pretrial and sentencing. Previous researchers have suggested that racial disparity is most present in the sentencing decision because of judicial discretion, but there is also racial disparity in the earlier stages in the pretrial process. Prior Research in pretrial argues that extra-legal factors on the criminal process has excluded race and made it unimportant.
In the focal concerns theory, researchers have concluded that judges use extra-legal considerations and stereotyping when making a decision. Research has found that extra-legal factors do play a big role in pretrial and incarceration, and that minorities receive a higher bail amount, denial of bail, and no financial release, making minorities more likely to be detained, waiting for trial, with a negative outcome, becoming more likely to be incarcerated with longer sentencing lengths.
The bottom line is that judges tend to disregard the seriousness of following the pretrial and sentencing guidelines. This is not to say that the guidelines are completely capable of keeping out bias and impartiality, however, they will give more structure to sentencing, and the judges will have to answer for not taking these rules into account. In other words, if a defendant complains to a higher court about unfairness in say, denial of bail, it will be easy for the persons in charge, to check the defendant's criteria against the guidelines, and decide whether or not the decision was fair.