Chapter 16

1. Chapter 16 Prosecution and Punishment

2. Criminal Courts and the Adversary System • Sociologists long noted actual behavior of people in organizations often differs from formal procedures required by organizations • Court adversarial system largely a myth • How does system really work? • Sociological jurisprudence • Legal realism

3. Normal Crimes and the Fate of Poor Defendants • Prosecutors and public defenders develop same idea about what is a “normal” or typical crime • More cooperation between prosecutors and public defenders • “Confidence game”

4. Blumberg’s research concluded poor but innocent defendants were being railroaded • Downie was critical of rampant plea bargaining • Research in 1970s concluded race and class of defendants do not generally affect chances of conviction or sentences received

5. Prosecutors, the Courtroom Workgroup, and Plea Bargaining • Heavy caseloads burden courtroom workgroup (prosecutors, defense attorneys, judges) • Plea bargaining helps process huge caseloads

6. Elements considered by prosecutors to determine if case is strong • Seriousness of offense • Injured victim? • Strong evidence (i.e. eyewitnesses, physical evidence) • Use of a weapon • Prior criminal record • “Stand-up” victim

7. Punishment, Social Structure, and Inequality • Introduction • Durkheim thought punishment reinforced social stability by clarifying norms • Social structure of a society helps determine type of punishment it adopts

8. Two types of societies • Small folk • Collective conscience • Mechanical solidarity • Repressive law: harsh physical punishment of offenders

9. Advanced, larger society • Social solidarity is organic; derives from interdependence • Restitutive law: interest in restoring relationships to previous state

10. Economic Conditions and Punishment • Research on Unemployment and Imprisonment • Evidence complex and inconsistent on whether higher rates of imprisonment in areas with high unemployment rates • Political factors and bureaucratic pressures affect legal responses to social and economic changes

11. Research on the Postbellum South • Inspired by Blalock’s (1967) power threat theory • Competition between whites and newly freed slaves • Imprisonment of young black males during this period increased as Southern whites fear blacks would gain political and economic power • Patterns of lynchings and imprisonment over following decades support Blalock’s theory

12. Social Class and Legal Outcomes • Some research shows after offense seriousness, prior record and other factors held constant, poorest offenders do not fare worse than less poor defendants • Others argue too little income variation to allow class differences in outcomes to emerge • Factual guilt v. legal guilt

13. Class disparity in legal outcomes of poor accused of street crime v. wealthier accused of white-collar crime • Treat street crime more harshly because public more concerned about it than white-collar crime? • The Community Context of Social Class and Sentencing

14. The Impact of Race and Ethnicity • Prosecutorial Decisions • Research evidence mixed on subject of race/ethnicity affecting prosecutorial decisions to dismiss or bring serious charges • Study in L.A. of 33,000 felony cases found prosecutors more likely to dismiss against white than African-American or Hispanic defendants (Sphon, Gruhl, and Welch, 1987) • People accused of killing whites more likely to be indicted for 1st degree murder than people accused of killing blacks

15. Conviction and Sentencing • African-Americans and Hispanics more likely to be in prison than whites • Almost 1/3 of black males expected to go to prison compared to 5.9% of whites • Consensus theory argues minorities more involved in street crime most likely to lead to prison • Conflict theory argues attribute imprisonment rate to systematic discrimination

16. A Brief History of Race and Sentencing Research • Pre-1970s studies of race and sentencing focused on black-white differences in sentencing and found blacks received harsher sentences • 1960s and early 1970s conclusion began to shift; methodological deficiencies in earlier research • Hagan article (1974) charged earlier research with ignoring offense seriousness and prior record • Others challenged the nondiscrimination in sentencing conclusion made by Hagan and Kleck

17. The Race of the Victim • Studies of rape and capital offenses show sentencing is more punitive when whites are victims than when blacks are victims • Findings parallel in arrest decisions and prosecutorial decisions • Blacks receive longer sentences when victims are white • New research reveals victim-offender relationship and victim behavior affected how they were treated

18. The Liberation Hypothesis and Less Serious Crimes • Research finds racial discrimination in less serious crime, but not in more serious because little room for discretion in more serious cases • Liberation hypothesis – less serious cases “liberate” judges to use their discretion • Spohn and Cederblom (1991) study of 4,655 felony defendants in Detroit; found overt racial discrimination

19. More recent evidence for the liberation hypothesis comes from a study of convicted drug offenders in Washington State (Seen, Engen and Gainey 2005) • A similar study of New York City women, conducted by Pauline K. Brennan (2006) uncovered indirect racial and ethnic discrimination in the imposition of jail sentences

20. Latinos and Native Americans • Research on Hispanics is inconsistent; some studies show they’re treated harsher than whites • Few studies exist on Native Americans • Studies available on Native Americans suggest they are treated more harshly in some stages of system compared to non-Indians • Defendants whose primary language is not English experience language and cultural difficulties

21. The Community Context of Racial/Ethnic Discrimination • Structural and social context of sentencing bias • Bridges and Crutchfield (1988), “social characteristics of states contribute significantly to racial disparity in imprisonment” • Chiricos and Crawford (1995) • Racial discrimination may be present at one stage in system, but not others • Not all studies find structural context makes a difference

22. A Cautious Conclusion on Racial and Ethnic Discrimination in Sentencing • Evidence for discrimination in juvenile system more consistent than for adult system • Many scholars feel disproportionate involvement in street crime accounts for number of minorities incarcerated • Walker suggests discrimination against minorities is not universal, but does exist in some cases

23. The Drug War Revisited • Disproportionate arrests for young black males • Higher penalties for crack cocaine than similar amounts of power cocaine • Black incarceration rates rose • One-third of young black males under correctional supervision (prison, jail, probation or parole)

24. Gender and Sentencing • 91% of all prison and jail inmates in the United States are male • Men more likely to commit serious offenses than women • Girls treated more harshly than boys in juvenile system for status offenses

25. The Impact of Punishment on Crime • Introduction • Longer prison terms and mandatory minimums for many crimes • Enormous increase in prison population • Probation/parole numbers have tripled • U.S. still has high crime rate than most industrial nations • Deterrence/incapacitation arguments

26. The Evidence Against a Deterrent Effect • Decreases in crime rates have not always accompanied huge increases in incarceration • At state level only weak and inconsistent relationship between severity of punishment and crime rates • Lack of evidence in studies to support argument • Decreases in crime do not generally occur after harsher penalties • Increase in prisoners has forced early release of convicted offenders already there

27. The Evidence Against an Incapacitation Effect • Assumes we don’t have enough people already in prison and there’s room for more • Assumes chronic offenders can be easily identified • Ignores fact any extra people put in prisons are only a small % of all offenders • Increase in incarceration last few decades may make crime problem worse

28. The Death Penalty Debate • Three Arguments • Deserve to be executed • Saves money • Sends a message

29. The Cost of the Death Penalty • Actually costs more than life in prison • General Deterrence and the Death Penalty • Most studies show no deterrence effect • Brutalization effect: homicides actually increase after executions

30. Arbitrariness and Racial Discrimination in the Death Penalty’s Application • Problems in way death penalty is applied • Lack of standards in applying the penalty • Furman v. Georgia (1972) • Gregg v. Georgia (1976)

31. Continuing Arbitrariness • Defendants accused of similar murders are treated differently for no logical reasons • Racial Discrimination • Lives of white victims more valuable than minorities’? • Harsher treatment of blacks

32. The Quality of Legal Representation of Capital Defendants • Most criminal defendants are poor and receive inadequate legal representation • Similar problems for appeals process • Wrongful Executions • Since 1900, at least 350 defendant convicted of potentially capital crimes even though innocent