Race and Sentencing Research Advancements

by

Ellen Donnelly, Emily Tavares-Sanches

• LAST REVIEWED: 26 May 2022
• LAST MODIFIED: 26 May 2022
• DOI: 10.1093/obo/9780195396607-0321

Introduction

Race and ethnicity have profound impacts on the sentencing of people convicted for criminal offenses. In a sentencing context, racial/ethnic disparity can be defined as any difference in the type of sentence a person receives (e.g., a community-based sanction or incarceration) or the length of their sentence, regardless of the reason for this distinction. A vast corpus of criminological literature dating from the 1970s to the 2000s has found direct and indirect race/ethnicity effects in sentence decision-making. Racial considerations in the form of prejudice and discrimination directly influence sentence type and sentence length decisions. Race and ethnicity may indirectly affect sentencing as these identities shape perceptions of risk held by court actors, prior involvement with the criminal justice system, and decisions to process a case at earlier decision points. Literature reviews and meta-analyses confirm these various race/ethnicity effects across temporal and geographic contexts. Since the 2010s, scholarship has sought to advance understandings of how race and ethnicity play roles in sentencing. A growing corpus of research focuses on inequalities that emerge at early decision-making stages like bail or pretrial detention and compound as a case moves toward its final disposition. Alternative methods to traditional multiple regression analysis have shown different ways to estimate race/ethnicity effects on sentencing outcomes. Access to new forms of case information has allowed scholars to consider the interplay of legal factors like offense type or criminal history and extralegal considerations like the racial/ethnic identities of the alleged victim and offender to forge disparities. Mapping techniques have encouraged scholars to explore how community contexts where people live or allegedly offend correlate with court outcomes. Other scholarship has moved beyond traditional focuses on racial/ethnic disparities involving Black, Latino/Hispanic, and White defendants by considering the places of immigration and indigenous status in criminal courts.

Overview of Past Race and Sentencing Literature

Previous reviews of scholarship on racial/ethnic disparities in sentencing represent a useful starting place for appreciating innovations in such work today. Several reviews follow the five “waves” of sentencing research, which remain largely focused on the United States. Among the earliest comprehensive reviews, Zatz 1987 articulates three waves of sentencing research. The “first wave” (1930s until the early 1960s) asserted the existence of discrimination in judicial decision-making, but did so with methodological limitations (e.g., no multivariate modeling and focus on Southern US states). The “second wave” (mid-1960s to 1970s) featured a new emphasis on the importance of charge severity and prior criminal history, prompting some to argue for the nonexistence of discrimination or racial/ethnic bias in sentencing. Benefiting from the rising popularity of multiple regression methods, a “third wave” (1970s–1980s) moved past the “discrimination” or “no-discrimination” debates to find the main, indirect, and interactive effects of race. Spohn 2000 summarizes sentencing research from the 1980s and 1990s that constitutes a “fourth wave.” This literature involved federal- and state-level inquiries into the direct and indirect roles of race in sentencing within different types of sentencing systems (e.g., jurisdictions with sentencing guidelines). Such research also began to explore Latino/Hispanic–White disparities. This scholarship too started to focus on intersectional inequalities related to a person’s identities (e.g., race × age × gender) as these shape key concerns related to the blameworthiness of the accused, protecting communities, and practical considerations (see Theoretical Perspectives on Race and Sentencing). More recently, Spohn 2015 articulates a “fifth wave” of sentencing. It recognizes that sanctions appear at the end of the judicial process and thereby reflect inequalities from prior criminal processing stages. This argument is largely based on the cumulative disadvantage framework (see Cumulative Disadvantage). Ulmer 2012 similarly notes a greater focus on social context, court organization, and the backgrounds of courtroom actors. In another review, Mitchell 2005 shows that estimates of racial/ethnic disparities can be quantitatively compared via meta-analysis, a special statistical procedure that treats study results as secondary data. A later work by the same author, Mitchell 2018, calls upon criminologists to adopt such a statistical approach that compares the magnitude, direction, and precision of unwarranted disparities across contexts. Based on interviews with sentencing scholars and a survey of published articles, Baumer 2013 calls for innovations in researching the perceptions of court actors, moving past ordinary regression methods, and highlighting the impacts of public policy on sentencing differences.

• Baumer, E. P. 2013. Reassessing and redirecting research on race and sentencing. Justice Quarterly 30.2: 231–261.

  DOI: 10.1080/07418825.2012.682602

  Combines a literature review and interviews with sentencing scholars to discuss the state of the field. Attention is given to opportunities to improve on “modal” sentencing studies that rely on court records with often missing or incomplete information and multivariate methods to estimate race/ethnicity effects. The article encourages more original data collection, such as gathering perceptions of court actors, and making greater connections between sentencing studies and public policy.

• Mitchell, O. 2005. A meta-analysis of race and sentencing research. Journal of Quantitative Criminology 21.4: 439–466.

  DOI: 10.1007/s10940-005-7362-7

  Conducts a meta-analysis of seventy-one sentencing disparity studies shared in journal articles, books, book chapters, and non-peer-reviewed reports. This excellent study demonstrates how to compare estimated racial/ethnic disparities across empirical studies using statistical procedures. It explains how differences in methodological decisions and quality can change overarching conclusions about the disadvantaging effects of minority status in criminal justice decision-making.

• Mitchell, O. 2018. The continuing evolution of race and sentencing research and reviews of this research. Journal of Criminal Justice 59:29–31.

  DOI: 10.1016/j.jcrimjus.2017.05.004

  This short piece comments on the contemporary state of race and sentencing scholarship. It makes powerful recommendations, including taking more quantitative (rather than solely narrative-based) approaches to synthesize studies as well as moving toward actual disparity reduction and policy change after completing studies of sentencing.

• Spohn, C. 2000. Thirty years of sentencing reform: The quest for a racially neutral sentencing. Criminal Justice 2000 3:427–501.

  Reviews forty studies from the “fourth wave” sentencing research. This work summarizes the main and interactive effects of race and ethnicity in US federal and state courts. In addition to noting each study’s core findings in tables, this study highlights the sample and type of sentencing system of each study.

• Spohn, C. 2015. Race, crime, and punishment in the twentieth and twenty-first centuries. Crime and Justice 44:49–97.

  DOI: 10.1086/681550

  Articulates a “fifth wave” of sentencing research that focuses on accumulating disadvantages associated with race/ethnicity and emphasizes a system-wide view of disparities across the entire criminal justice continuum.

• Ulmer, J. T. 2012. Recent developments and new directions in sentencing research. Justice Quarterly 29.1: 1–40.

  DOI: 10.1080/07418825.2011.624115

  Synthesizes sentencing studies in the 1990s and 2000s. The review encourages readers to appreciate the increasing importance of “context” in the forms of organizational constraints, sociopolitical influences, and the racial/ethnic composition of a community in shaping court decision-making. The piece likewise showcases key studies on how the identities of courtroom actors and victims shift outcomes. Directions are provided for future research, especially studies that build upon these topical areas.

• Zatz, M. S. 1987. The changing forms of racial/ethnic biases in sentencing. Journal of Research in Crime and Delinquency 24.1: 69–92.

  DOI: 10.1177/0022427887024001005

  Provides a thorough review of the first three waves of race and sentencing research. This article discusses the importance of data and methods in advancing discourse beyond the “discrimination” and “no-discrimination” debates of the 20th century.