Individuals convicted of crimes are sentenced to a variety of punishments, including fines, treatment, supervision, and incarceration. Disparities, or differences, in these sentences correlate with both legal characteristics such as crime of conviction and prior record, and “extra-legal” characteristics such as race, employment status, sex, and age. Moreover, a thorough review of research reveals that race, employment status, and gender—especially child care responsibilities—all affect sentencing outcomes independent of legal variables. More particularly, even among offenders with the same legal characteristics, black offenders are punished more harshly than are white offenders, unemployed offenders are punished more harshly than employed offenders, and individuals who are not primary caregivers are punished more harshly than those who are. Compounding these disparities are others generated during other stages of criminal processing, such as arrest, pretrial processing, plea bargaining, release, and parole revocation.
History of Sentencing Disparities
Before emancipation, slave owners were legally free to punish their slaves for any offense without intervention from the judiciary. This meant that punishment of blacks was generally inflicted on the body and that a conviction—or any legal process—was not necessary as a precursor to punishment. On the rare occasions when blacks were tried for their offenses—generally slaves whose alleged offenses affected the larger (white) community and free blacks—they were often subject to separate legal codes, especially in the South. The code that simply bore the state name was in fact only applicable to whites, and a separate code, often called “black codes,” was applicable to blacks. These codes mandated different punishments for the same offenses. Blacks were subject to some punishments that whites were not. For example, in Virginia, it was typical for slaves who ran away to be sentenced to castration or hobbling, while no such status and thus crime existed for whites and there was no crime for which whites could be sentenced to either of these punishments. In addition, prescribed punishments for many crimes were lighter for whites than for blacks. For example, Virginia decreed imprisonment for whites but death for blacks convicted of a variety of felonies, from buying or receiving a stolen horse to rape. In addition, blacks were tried in separate courts without juries, comprised of county justices and sometimes slave-owning assessors. One remnant of separate legal codes is that noncitizen individuals accused of criminal behavior are still subjected to a different set of laws than citizens accused of criminal behavior.
Today, most discussions about sentencing disparities focus on the apparent disjuncture between race-neutral law and racially disparate punishment outcomes. In other words, scholars investigate why, despite legal codes mandating that individuals with the same legal characteristics receive the same punishment, the effects of the race, class, and gender on individual outcomes remain. Early studies, from the 1920s to the 1970s, generally looked only at men convicted of felonies and tested for race and socioeconomic effects. These studies found that black men and unemployed men received more punitive criminal justice outcomes than white employed men. However, these studies used inadequate statistical methods and often contained methodological flaws, rarely controlling for legally relevant factors such as prior record or seriousness of offense. In the 1970s, many scholars reanalyzed the data from these earlier studies, this time controlling for legally relevant factors and using more sophisticated statistical techniques. These analyses showed that little if any discrimination existed. Further, when later studies added variables for prior record and offense seriousness, the effects of race and class often disappeared or lessened. As a result, many scholars rejected the “discrimination thesis,” arguing that what appeared to be effects of racial or class discrimination were actually the effects of legally relevant variables correlating with race and class, such as prior record.
Since then, several new developments helped to show where discrimination exists and why it was invisible in these earlier studies. First, scholars separated sentencing decisions into two parts: the decision to incarcerate and the sentence length. These studies find that while race or employment status rarely affects sentence length, both affect the decision to incarcerate. This probably occurs because judges have wider discretion when deciding whether or not to incarcerate an individual convicted of a crime, but sentencing ranges are often “recommended,” if not mandated, leaving judges little room to adjust sentences for a given offense. Second, researchers began to test for interactions. While the main effects for race and class variables were often modest, their interaction, often with gender and particularly in young, unemployed black males, was consistently strong and significant. Studies show that the effects of gender are not constant across different racial groups.
Third, studies looking at the effects of race on sentencing by offense category found that being black or Latino/a is more harmful for offenders charged with some offenses than for offenders charged with other offenses. This is often explained by one of two competing, but not necessarily incompatible, theories.
The liberation hypothesis argues that during the criminal processing of cases that are more serious, the seriousness of crime and the defendant’s prior criminal record strongly influence the outcome. In contrast, in less serious cases the features of the crime or the defendant’s criminal record less clearly affect the outcome, allowing criminal justice actors more discretion and thus increasing the likelihood of discrimination.
Another perspective, often called focal concerns, argues that judges rarely have complete information about cases or defendants and, as a result, they often try to reduce uncertainty by relying not only on the defendant’s present offense and prior criminal conduct but also on attributes linked to the defendant’s gender, race, social class, or other social positions.
Studies that separate their analyses by crime type find that racial disparity is greatest both among offenders convicted of less serious crimes and among offenders whose offenses are most likely to conjure racialized stereotypes. For example, black people are most dis-advantaged, relative to white people with similar legal characteristics, when charged with or convicted of violent offenses. Latino/as are most disadvantaged, again relative to white people with similar legal characteristics, when charged with or convicted of drug offenses.
Finally, recent studies include variables that look at county-level demographics, such as economic inequality between black and white populations. These studies find that sentencing disparities are more substantial and consistent in some counties than in others and that this is linked to the demographics of those counties. For instance, race affects sentencing decisions most in counties where the percentages of blacks and economic inequality are both low.
Some evidence shows that individuals with lower socioeconomic status receive longer sentences than individuals of the same race, sex, and legal characteristics but with higher socioeconomic status. In this instance, employment status often serves as a proxy for class. Empirically, studies generally examine differences in sentencing outcomes between those employed and those unemployed at the time of arrest. Most studies find that unemployed individuals receive more punitive sentences than employed individuals. In fact, it would be surprising if this was not the case, since many states have codified employment status— along with other class-correlated characteristics such as residential stability—as a legal characteristic to be considered during criminal processing. That is, while criminal justice officials are not supposed to base their punishment decisions on race or sex, many states recommend that criminal justice officials consider employment status and residential stability when making their decisions. These characteristics receive consideration most directly during pretrial decisions, including the decision to deny bail, the setting of bail amount, and the decision to grant a nonfinancial release. However, since incarceration during pretrial increases the harshness of offenders’ post-trial sentences, it is no surprise that those unemployed at the time of arrest receive more punitive sentences than those employed at the time of arrest.
Sociologists also examine how changes in labor supply over time affect the level of punishment in a society. Some researchers argue that penal policy is used to regulate labor supply. If this is correct, then increases in unemployment rates should correlate with increases in imprisonment rates. Correspondingly, decreases in unemployment rates should correlate with decreases in imprisonment rates. Although some claim that the evidence is inconclusive, most longitudinal and many cross-sectional studies find significant associations between increases in labor surplus and incarceration rates. Moreover, unemployment appears to have the strongest effect on black incarceration rates, while the effect of unemployment on white male incarceration has diminished over time. Studies that do not control for race may thus be underestimating the unemployment-punishment link.
Paternalism Versus “Caregiver Effect”
Since the early 20th century, criminologists and other scholars have questioned the origins of gender disparities in the criminal justice system. While most scholars agree that gender differences in offenses explain some, perhaps most, of gender disparities in punishment outcomes, they nonetheless contend that decisions of criminal justice officials compound these “original” disparities. The most commonly espoused thesis states that “chivalry” or “paternalism” leads criminal justice officials to grant women more beneficial criminal justice outcomes than they do men.
However, many researchers criticize the “paternalism” hypothesis. One group argues that no actual difference exists between the criminal processing of men and women and that the apparent difference results from failure to control for legally relevant variables. A second camp argues that gender differences in processing result from racially disparate treatment that specifically targets black men. Here, scholars argue that the difference in the processing between black men and women—unlike that of white men and women, where little exists—is due to particularly harsh treatment of black men, not particularly lenient treatment of black women. Finally, a third camp of criminologists explore the impact of child care responsibilities on criminal processing and argue that criminal justice officials respond to child care responsibility, rather than gender per se, when making criminal justice decisions. These scholars find that both men and women defendants who are primary caregivers to young children receive more beneficial criminal justice outcomes than do defendants who are not. Thus gender—specifically, childrearing—does affect criminal processing, but sex per se does not.
Research on gender disparities in criminal processing took a sharp turn beginning in the 1980s when gender disparities in arrest rates, conviction rates, admission rates, and time served all increased dramatically. Three dominant schools of thought on this phenomenon emerged. The first attributed the increases in women’s rates of punishment to an apparent crime wave by female offenders. A second camp argued that increases in women’s rates of arrest and imprisonment were due to a decline in chivalry on criminal processing. A third camp argued that changes in sentencing laws—in particular, the adoption of predetermined sentencing policies—undermined criminal justice officials’ ability to take gendered behaviors into consideration when deciding punishment outcomes. Moreover, some scholars argue that non-incarcerated sentences are not necessarily less punitive than sentences of incarceration since these forms of punishment put women under intense surveillance while they maintain their roles in families and homes.
Racialization of Criminal Codes
Defendants with the same legal characteristics do not always receive the same criminal justice outcomes, and these different outcomes correlate with extra-legal characteristics such as race, gender, and class. However, even if every defendant with the same legal characteristics received the same sentence, only a small decrease in racial disparities would occur because criminality is race salient. White people, for example, are disproportionately arrested for tax fraud, embezzlement, insider trading, and many other types of white-collar crime. Further, although these crimes cost more money per capita than all street crime combined, sentences for these crimes are, on average, less than sentences for even nonviolent street crime. Black people are disproportionately arrested for street crime— violent and nonviolent. Thus, in addition to sentencing disparities that arise during criminal processing, some disparities are built into criminal codes. Even though some people arrested for white-collar crime are black and some people arrested for street crime are white, the laws do not classify on the basis of race and so are distinct from the separate codes for blacks and whites that were in place before emancipation.
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