Racial Bias in Sentencing
Do African-American Women Receive Harsher Sentencing in the Criminal Justice System for Crimes than Caucasian Women?
A ic/Research Question
The proposed research will explore racial bias in the criminal justice system. It will explore consist of a paired analysis of sentencing practices between Caucasian women and African-American women for similar crimes. It will explore the research question: do African-American women receive harsher sentencing in the criminal justice system for crimes than Caucasian women?
The United States prides itself on the maintenance of a fair and equitable justice system. Formal laws and policies are in place to make certain that one group or another does not receive partial treatment due to factors such as sex, race, gender, or religion. The justice system is supposed to work on the principle that everyone will receive a similar treatment for similar crimes, regardless of their gender or race. It would be an ethical violation for a judge or jury to award a punishment, be it more or less severe, based on a factor that was not directly related to the crime committed.
This is the ideal justice system that exists in the annals of law journals, policies and procedures. However, policies and procedures can only control an individual to a certain extent. Judges, juries, prosecutors, and public defenders are people, just like any one else. As such, they can allow their own feelings to contaminate their decisions. They know that this is wrong, but many do not recognize these qualities in themselves. They do not see the racism in their decisions. However, more than two hundred years of racial prejudice and social teaching cannot be erased with a pen stroke. Racial prejudice no longer exists in the policies of the criminal justice system, but in practice, it is alive and well.
The question of racial bias in the criminal justice system has been a topic of great concern. Accusations that the court system treats people differently according to the color of their skin. The focus of past research has highlighted gender bias in the sentencing of males. However, little attention has been paid to addressing whether the same applies to women in the criminal justice system as well. This research will explore sentencing in the criminal justice system for women of different racial backgrounds.
Independent and Dependent Variables
For this study, the independent variable will consist of the crime that was committed and the sentence achieved. This study will only examine misdemeanor crime. Felonies and capital crimes are complex and often have many mitigating circumstances that could affect the outcome of the study. Misdemeanors are often less complex, with fewer mitigating circumstances, therefore would be expected to be likely to have more consistent sentencing practices. The crimes that will be examined will be limited to: drug possession, criminal mischief, disorderly conduct, harassment, menacing, theft, trespass, and domestic violence. The researcher has no control of the crime committed, nor the sentence that was awarded for the crime. Therefore the crime and punishment will serve as the independent variable.
The purpose of this study is to explore the connection between race and the severity of the sentence that was awarded. The race of the women will serve as the dependent variable. This will be the key point of difference between the two groups of women included in this study. One of the key difficulties will be the elimination of confounding variables. Many of these variables will be considered to be consequential. For instance, the specifics of the case, such as provocation and circumstance will not be considered. Only the crime for which the person was convicted, the punishment received, and the race of the subject will be considered in determining the affect of the dependent variable on the independent variable.
An exploration of the affects of race on the sentencing within the criminal justice system is a concern for the fair and equitable application of the law. This research will support the hypothesis that sentencing practice affords stiffer sentences for African-American Women than for Caucasian women that have committed similar crimes.
Review of Literature and Theoretical Perspective
The topic of racial bias in the court system is abundant. Studies regarding racial bias typically use a cohort of male subjects. Only a handful of studies involve female subjects. Therefore, it is not known if the same biases exist in this population that exists in the male population. The following will examine existing academic literature regarding racial bias in the court system.
There are many sources of information that exist on racial bias. However, not all of them are considered to be credible. There are a number of sources, including media sources that present a slanted opinion, rather than an empirically supported argument. Many legal rights organizations have published information in which academic or government sources were cited. However, this information is also considered biased for the purposes of this study, as it is feared that these organizations may have excluded information that did not support their position. Only information from academic sources, or government agencies will be considered for the literature review and development of the theoretical underpinnings of this study.
Racial Bias and Defendant Treatment
There are a number of studies that support the existence of racial bias in the criminal justice system. For instance, a meta-analysis found that a small, but still significant amount of racial bias is present in decision making across a majority of the studies examined (Mitchell, Haw, and Pfeifer et al., 2005). Race has been demonstrated to have an impact on the penalty phase of capital murder trials. In a recent study, it was found that simplifying instructions to the jury resulted in better comprehension of the sentencing instructions when the body of jurors was of mixed race (Shaked-Schrorer, Constanzo, & Marcus-Newhall, 2008). In a study that examined the effect of playing the “race card” it was found that when claims of racial prejudice were used as a defense, those claims resulted in a reduced perception of guilt (Hart & Lopez, 2007). These studies indicate that race does have an effect on the perceptions of jurors and that it does play a role in the sentencing and assumed guilt or innocence of the defendant.
Findings regarding racial bias in the court system are conflicting. A number of the studies that provided contradictory evidence were found to be based on old data, used capital offenses, and lack improper controls and procedures (Unnever, Frazier, & Henretta, 2005). Significant racial differences were found, most of which originated in the early stages of the sentencing process (Unnever, Frazier, & Henretta, 2005).
The demographics of the constituency in which a judge practices has an impact on the way in which judges apply sentences. This effect was found to be especially emphasized when the judge was elected as opposed to appointed (Hernandez-Julian & Tomic, 2006). Blacks were found to be more likely to be incarcerated and for longer times than whites. However, this effect was found to diminish in communities where the number of blacks rose in comparison to white populations (Hernandez-Julian & Tomic, 2006). This study plays a significant role in understanding how politics plays into the sentencing equation.
Diversity in the Judicial System
One of the key criticism of the justice system and the biases that are claimed to exist is the overwhelming majority of Caucasian judges in the system. Perhaps the question is not the overwhelming majority of white judges, but rather the lack of ethnic judges. It has been suggested that racial bias can be reduced by making certain that a sufficient number of black judges are represented in the system. A number of studies focus on the measures that states are taking to help make certain that the benches are represented by a racially diverse set of qualified representatives. Diversity is now taken into consideration for appointed judges, but it does not override other qualifications (Torres-Spelliscy, Chase & Greenman, 2008).
Several committees and publications have been developed to help serve as guidance in the selection of a diverse pool of judges on many levels (National Association for Legal Career Professionals, 2006; Lawyers Committee for Civil Rights Under Law, 2005). Despite the existence of bias and improper procedures that exist in studies regarding racial bias in sentencing practices, a significant amount of credible evidence exists that suggests racial bias in the criminal justice system is real.
Conflicting evidence does exist, or evidence that is considered marginal at best, but despite the existence of these studies, the amount of credible evidence in favor of the existence of racial bias is overwhelming. However, a gap in the literature was found in the methods used to conduct the studies. Use of court evidence was the primary means of conducting the study. This method failed to eliminate many sources of bias that may have affected the results.
The second gap found was in the existence of studies that used females as subjects. Study of racial bias in the court system was dominated by male subjects. It is not known if the bias found among males also exists among women. This study will address both the gap in methodology and the lack of studies regarding women. It will contribute to the existing body of evidence by filling in these important gaps.
Valid research is based on consistency and a mutual understanding of the research parameters. Although, many of the terms used in this study will be familiar to the layperson, it is important to understand exactly what is meant so that precise understanding of the variables in the study can be understood. The following operational definitions will be used throughout this research project.
African-American – This term will refer to any person of African-American decent. It will be used to describe those that are of a high percentage of African-American ancestry, as well as those of low percentage or mixed ancestry, but who identify themselves as primarily culturally African.
A drug possession -This includes any misdemeanor crime that is associated with the possession of a controlled substance including marijuana, cocaine, heroine, or the misuse of prescription narcotics such as oxycontin. It does not include crimes such as trafficking or possession of amounts that warrant that the crime be considered a felony. It will not include cases where the charges were negotiated down from the felony to a misdemeanor.
Caucasian – This refers to anyone of European, Canadian, or U.S. decent. It does not include those of Hispanic, Native American, or Asian Decent.
A criminal mischief – This refers to any crime labeled as criminal mischief. This category encompasses a large array of activities and is determined by the arresting officer and the court system.
A disorderly conduct – This term refers to anyone charged of a misdemeanor disorderly conduct charge, regardless of the circumstances that led to their arrest.
A domestic violence – Domestic violence refers to conviction of a misdemeanor of domestic violence. These cases are of particular interest, as they may involve mitigating circumstances of self-defense.
A harassment – This term will not include alleged harassment that did not lead to a conviction by the court system. Only cases where a conviction for harassment was attained will be included in this study.
Menacing – Only cases where a conviction for menacing is attained will be considered in this research study. Those for which allegations did not stand will not be included in the study.
Sentence – Sentence refers to the punishment awarded by the judge upon prior to any appeals. It does not reflect whether or not the sentence was actually served by the defendant, it reflects the initial sentence awarded by the judge. This also does not include any reductions in sentence, only the initial punishment awarded.
A theft – Theft includes any crime that involves the taking of another’s property. For the purposes of this study, only crimes considered a misdemeanor will be considered. Only crimes for which the defendant was convicted will be considered. Those cases of theft involving dollar amounts or property high enough to be considered felonies will not be included in this study.
A trespass – Trespass means entering another’s property without permission, it also means refusing to leave when that person asks that one do so. As with the other crime categories, only cases that were successfully prosecuted and sentenced will be included.
There are several methods that could be used to conduct this study. The first method, and one commonly found in the literature consists of a records search. However, there are many factors that this records search may not reveal, that are relevant to the study. For instance, one will not find racial information on many of the parties present, including the judge. This information is considered vital to achieving the purpose of the intended study.
There are many ethical considerations regarding this type of subject matter. The study involves confidential information and many factors that would be considered of sensitive nature. Therefore, the only ethical way to obtain the needed information will be to obtain if from the individual, with their permission. The participant will be in control of any personal information obtained.
Many studies that address racial bias among male offenders used records search as their primary research tool. However, there are many underlying factors that this type of method may miss, but that is relevant to the intended research study. For instance, one may not know the race of the prosecutor or defender in the case, or the race of the “victim.” These factors are important, but would not be revealed in a records search.
Participants for this study will consist of 200 women, identified through court record searches that have been convicted of one of the listed crimes. Women will be between the ages of 18-50 years old. Due to privacy issues, the women chosen will enrolled in the probation/parole system in counties in and surrounding the study location. They will be contracted through the probation office/parole office and asked to participate in the survey. They will be instructed that participation is not mandatory and that they will receive no consequence for their choice to participate or not to participate in the study.
Other than making certain that the women chosen meet the criteria for participation in the study, the researcher will not have control over the sample population. A random sampling technique will be used. Two groups of women will be recruited for the study. They will consist 100 Caucasian women and 100 African-American women within the required age for participation in the study. They will have been convicted for one of the crimes listed in the study definitions.
In order to avoid bias in the sample population, several exclusionary criteria will be used in the selection of study participants. Women that have severe mental illness requiring hospitalization will not be included in the study. Women that have moderate to severe mental retardation will not be considered for the study. Only women that have been convicted of the crime for which they were accused will be included in the study.
Only women that have been convicted of a single crime will be included. For instance, those that are convicted for multiple crimes related to the same event will not be included. An example of this would be a women that was convicted of trespassing, theft and criminal mischief will not be considered. The final criteria is that all women in the study must be first time offenders. Those that have been convicted on multiple occasions in the past will not be considered, as they would be expected to receive harsher penalties than a first time offender. These criteria are expected to even the playing field so that bias in the sentencing decision are eliminated as much as possible.
After selection of the study participants, women will be asked to participate in the research study. Their parole or probation officer will administer the survey at one of the required visits. After the required number of surveys have been completed in the two groups, the researcher will collect the surveys from the probation/parole officer. No identifying marks or personal information will be included on the surveys. Participants will sign a release prior to completing the survey in order to make certain that their privacy is not violated. The remainder of the study will rely on data analysis and interpretation.
Due to privacy issues, the researcher will not be permitted to view personal files of study participants. All needed information will be derived from the survey instrument itself. All disclosure of information will be on a voluntary basis.
The survey will ask the participants several questions regarding the circumstances and results of their conviction and the initial sentence that they received. The answers to these questions will be included in the survey itself. The survey and cover letter can be found in the Appendix of this proposal.
The survey instrument will be developed by the researcher, as no similar instruments could be found. This study will be subject to several limitations stemming form both internal and external sources. The first limitation is the applicability of the study results. Specific criteria will be used to determine test participants. Therefore, results are only valid for study groups that are similar to the test group. Several threats to the internal validity of the study exist. For instance, women may feel intimidated by the nature of the questions and fear that they may receive retaliation for their answers. This could affect their honesty and willingness to answer the survey questions. The participants will be assured that their answers will in no way lead to any consequences. Strict measures will be taken to assure their confidentiality.
Another factor that may influence the results obtained is that the judge’s personal opinion and experiences may affect the case. However, this influence may not necessarily be for reasons of race discrimination. Some judges may consider certain crimes more heinous than others. The attitude of the defendant may also be taken into account. These factors may often not be able to be identified, as they reflect the personality and experience of the sentencing judge. These factors are difficult to control, but they may have an influence on the outcome of the research study.
Analysis and Results
The sampling method chosen for this study can be analyzed in several different manners. The first, is a comparison between the African-American and Caucasian study group. The two study groups will be categorized according to the category in which their crime belongs. For instance, both racial groups of women will be further sub-categorized into groups for crimes that fall into the general categories of drug possession, criminal mischief, disorderly conduct, harassment, menacing, theft, trespass, and domestic violence. The severity of the sentence will then be analyzed for each of the two groups.
The sentence initially handed down from the judge will be rated will be assigned a level of severity. The following charts is an example of the rating system that will be used to rate the severity of the punishment received.
Months community service
30 days incarceration months incarceration plus 60 days community service
Over 2 years incarceration
The scale cannot be developed until the range of sentences can be compared. It is not known what the final range of sentences within the survey participants will be. They will be matched as closely as possible for similarities.
Data analysis will involve descriptive statistical methods, such as Pearson Product moment between groups. It will also utilize two-tailed testing. A p-value of 0.05 will be used as the criteria for the acceptance or rejection of the hypothesis. Crohnbach’s alpha will be calculated for both groups to examine the validity of the instruments. The main goal will be to compare the two study groups in terms of the severity of sentence in relation to the crimes committed.
The literature review revealed that many of the studies regarding racial bias in sentencing were conducted using a population of male study participants. The most common form of research consisted of a records search. This research will fill the gap regarding the necessity for similar information regarding racial disparity among females. This study will help to determine if the same biases exist among females that are reported to exist among male study participants.
The chosen research method will provide greater insight into the specific racial elements of the cases examined. It will provide a more in-depth analysis than methods that involve only a records search. Those methods fail to eliminate many potential sources of bias that will be successfully addressed using the chosen study procedure. This research study represents a valuable tool in developing an understanding of the intensity and frequency of racial bias within the criminal justice system.
This study will provide valuable information regarding biases within the criminal justice system. If biases are found, this study could help provide guidance and direction in the development of policies, educational programs and other areas to help judges and others become aware of their role in reducing racial bias in the criminal justice system. This research will contribute to an overall understanding of biases within the criminal justice system in the hopes of developing measures to combat bias within the system. The study will serve as a useful tool for policy change and other measures to help end racial bias in the court system.
Hart, C. & Lopez, E. (2007). Evaluation of the Race Card Strategy: The Importance of Supporting Evidence. Journal of Credibility Assessment and Witness Psychology. 8 (1): 1-9. Retrieved March 14, 2009 at http://truth.boisestate.edu/jcaawp/2007_1_9/2007_1_9.pdf
Hernandez-Julian, R. & Tomic, a. (2006). How Elected Judges Respond to the Racial Composition of their Constituencies. Retrieved March 14, 2009 at http://ssrn.com/abstract=890738
Lawyers Committee for Civil Rights Under Law (2005). Answering the Call for a More Diverse Judiciary. Retrieved March 14, 2009 at http://www.abanet.org/buslaw/2005minoritylawyer/materials/jdr.pdf
Mitchell, T., Haw, R., & Pfeifer, J. (2005). Racial Bias in Mock Juror Decision-Making: A Meta- Analytic Review of Defendant Treatment. Law and Human Behavior. 29-96): 621-637. Retrieved March 14, 2009 at http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1016&context=christian_meissner
National Association for Legal Career Professionals (2006). Diversity Best Practices Guide. Retrieved March 14, 2009 at http://www.nalp.org/assets/221_diversitybestpracticesgui.pdf
Shaked-Schroer, N., Constanzo, M., & Marcus-Newhall, a. (2008). Reducing racial bias in the penalty phase of capital trials. Behavioral Sciences & the Law. 26 (5): 603-617.
Torres-Spelliscy, C., Chase, M., & Greenman, E. (2008). Improving Judicial Diversity. New York: NY. Brennan Center for Justice at New York University School of Law. Retrieved March 14, 2009 at http://brennan.3cdn.net/96d16b62f331bb13ac_kfm6bplue.pdf
Unnever, J., Frazier, C., & Henretta, J. (2005). Race Differences in Criminal Sentencing. Sociological Quarterly. 21-92): 197-205.
Shelton, Illinois 45678
Please mark the most appropriate answers.
What was the exact name of the crime for which you were convicted?
2. What is your race?
With what culture do you most identify with?
What is your age?
5. Did your crime occur as a result of individual or group activities?
Crime Committed with others
6. Were you the defendant?
7. What was the race of the “victim” in the crime?
8. Race of judge in case
9. Race of prosecutor in the case
10. Race of Defendant in the case
11. Is the community in which the crime occurred
12. Was the community in which the crime occurred urban or rural?
13. If your crime involved an altercation, who started it?
You someone else
14. What was your initial sentence for the crime? (Please state the sentence before any appeals, reductions, or suspensions)