Handbook on Punishment Decisions

Locations of Disparity

Jeffery T. Ulmer, Mindy S. Bradley

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138221499
• eBook ISBN: 9781315410357
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Handbook on Punishment Decisions: Locations of Disparity provides a comprehensive assessment of the current knowledge on sites of disparity in punishment decision-making. This collection of essays and reports of original research defines disparity broadly to include the intersection of race/ethnicity, gender, age, citizenship/immigration status, and socioeconomic status, and it examines dimensions such as how pretrial or guilty plea processes shape exposure to punishment, how different types of sentencing decisions and/or policy structures (sentencing guidelines, mandatory minimums, risk assessment tools) might shape and condition disparity, and how post-sentencing decisions involving probation and parole contribute to inequalities. The sixteen contributions pull together what we know and what we don't about punishment decision-making and plow new ground for further advances in the field.

The ASC Division on Corrections & Sentencing Handbook Series publishes volumes on topics ranging from violence risk assessment to specialty courts for drug users, veterans, or people with mental illness. Each thematic volume focuses on a single topical issue that intersects with corrections and sentencing research.

Part I

Policy Choices and Mass Punishment

1
What We Know, Do Not Know, and Need to Know About Sentencing and Mass Incarceration in the U.S. and What “Sentencing” Research Could Teach Us

Rodney L. Engen

In her historic 2016 Presidential Address to the American Society of Criminology (ASC), ASC President Dr. Ruth Peterson called upon scholars to “take stock of what we know, do not know, and need to know” about race, crime, and justice, to seek answers to “looming general questions,” and to identify the mechanisms and processes that produce race/ethnic disparities at different levels of analysis (Peterson, 2016, 2017). In the realm of sentencing and sentencing disparity, it is fair to say that scholars have been taking stock of the state of knowledge individually, and as a community, on a more-or-less ongoing basis for many years. As a result, we have several excellent, and still timely, reviews summarizing the evidence and the development of this research over the past thirty years, highlighting the strengths and limitations common to much of the research, and urging scholars to extend the boundaries of our research enterprise. As so much ground has already been covered, I encourage interested readers to study these papers, carefully (e.g., Spohn, 2015; Ulmer, 2012; Baumer, 2013).

For my part, I will take President Peterson’s call as an opportunity to do several things. One is to join a growing number of scholars in challenging the conventional wisdom about the causes of mass incarceration in the U.S. (e.g., Bushway and Forst, 2013; Pfaff, 2014, 2017; Lynch, 2011; Enns, 2016). Specifically, the general consensus that “tough on crime” sentencing policies—mandatory minimums, three-strikes laws, truth-in-sentencing, abolishing parole, etc.—were instrumental in driving up imprisonment rates rests on very little, and very weak, empirical evidence. Frequently, the evidence marshaled in support of this narrative entails little more than inferences based on national imprisonment trends and well-known examples of extreme policies, usually California’s three-strikes law and the federal mandatory minimums for drug trafficking, which are important but are not representative of the laws or of sentencing practices in most states. This consensus view also fails to fully consider credible alternative explanations, including changes in the behavior of prosecutors, correctional authorities, and even judges.

Regrettably, the extensive research literature on individual-level sentencing decisions and sentencing disparity also does not equip us to answer questions about the effects of sentencing reforms on imprisonment rates, or on racial disproportionality in imprisonment, and offers little to inform current policy debates. The reason for this is simple. “Sentencing” research currently does not include an explicit focus on the effects of sentencing policies, either with respect to changes in the severity of punishment, sentencing disparity, or the process itself (e.g., effects on plea-bargaining) (Engen, 2009). Thus, my second objective is to invite readers, especially scholars with expertise in sentencing and corrections, to think broadly about the goals and objectives of sentencing research and to prioritize research that informs our understanding of how sentencing policies affect sentencing practices (case processing and severity of punishment) and how sentencing at the individual-level affects aggregate imprisonment rates. Toward this end I also highlight some innovative attempts to understand the effects of sentencing policies that others can learn from and build upon.

Third, given the emphasis on sentencing and sentence length for understanding imprisonment rates, I examine the relationship between sentence length and several sentencing reforms (sentencing guidelines, determinate sentencing, mandatory minimums), using data on prison admissions in 26 states in 2000 and 2010 from the National Corrections Reporting Program (NCRP). I use hierarchical linear modeling (HLM) to estimate the relative influence of individual, county, and state characteristics on sentence length and to test interactions between individuals’ race and social structural characteristics of the county and the state, between individuals’ race and state sentencing policies, and between individuals’ race and region of the country. The results reveal important effects at each level of analysis, substantial sentencing policy effects, and significant cross-level interactions with race. The results also draw attention to the geographic distributions of race and ethnicity in the U.S. I discuss some implications of these geographic distributions for understanding disproportionality in imprisonment nationally.

The Effects of Sentencing Policies on Imprisonment

The Consensus View

In 2012, the National Research Council (NRC) of the National Academy of Sciences established a committee of leading scholars to review and summarize the evidence on the causes and consequences of mass incarceration in the United States and to identify implications for public policy. The NRC’s final report (Travis et al., 2014) provides an excellent and comprehensive overview of a large body of literature and is probably the best indicator of the consensus view on these issues, if one exists. With respect to the proximal causes of the growth in imprisonment, the NRC is unambiguous and unequivocal:

The best single proximate explanation of the rise in incarceration is not rising crime rates, but the policy choices made by legislators to greatly increase the use of imprisonment as a response to crime. Mandatory prison sentences, intensified enforcement of drug laws, and long sentences contributed not only to overall high rates of incarceration, but also especially to extraordinary rates of incarceration in black and Latino communities.

(p. 3, emphasis added)

The increase in U.S. incarceration rates over the past 40 years is preponderantly the result of increases both in the likelihood of imprisonment and in lengths of prison sentences—with the latter having been the primary cause since 1990. These increases, in turn, are a product of the proliferation in nearly every state and in the federal system of laws and guidelines providing for lengthy prison sentences for drug and violent crimes and repeat offenses, and the enactment in more than half the states and in the federal system of three strikes and truth-in-sentencing laws.

(p. 70, emphasis added)

[T]he steady growth in incarceration rates has been significantly fuelled by longer prison sentences. A variety of statutory enactments have driven these results, including laws imposing truth-in-sentencing, life without parole, and three strikes… . [States also] reduced or eliminated the use of discretionary parole release, increased the level of returns to prison for parole violations, reduced the use of “good time” [and other early release mechanisms such as halfway houses]. These policy shifts significantly increased the average time served for a felony conviction.

(p. 344, emphasis added)

To avoid confusion, I concur that our response to crime, not the crime rate, produced the growth in imprisonment, especially once crime began to decline in the early 1990s, and it is highly probable that sentencing policies contributed to this growth.¹ However, I disagree that the available empirical evidence warrants any strong inferences about specific policies, or types of policies, or even that we can assert, as a general conclusion, that “sentencing policy” is a principle reason for the continued growth in imprisonment rates. This is mainly because very little research—almost none—has been undertaken for the purpose of assessing whether these policies affected imprisonment rates and because most of the limited evidence that exists fails to meet even minimal criteria for inferring an association between the enactment of these sentencing policies and states’ imprisonment rates.

The Evidence

Much of what we know about mass incarceration, including the disproportionate imprisonment of persons of color, especially African American men, derives from primarily qualitative, macro-historical analyses of changes in the U.S. prison population, and the various social, cultural, and political dynamics that occurred in the same general time frame or that provide its historical context. These include the civil rights movement, rising violent crime rates, “civil unrest,” the “Southern Strategy,” the politicization of crime, the war on drugs, etc. (e.g., Garland, 2001; Beckett, 1997; Beckett and Western, 2001; Gottschalk, 2006; Alexander, 2010; Clear and Frost, 2014). Likewise, much of the research on race and the drug war centers on describing policy changes, the politics and philosophical arguments related to these changes, and the social consequences of the increase in African American arrest and imprisonment rates (Tonry, 2011). Clearly, this literature is empirically grounded and includes much evidence that our legal institutions changed in fundamental ways, including the expansion of policing powers and the scaling back of 4th Amendment protections that facilitated the War on Drugs (Alexander, 2010; Lynch, 2011), the rise of neo-liberalism and the retrenchment of the welfare state (Wacquant, 2009), and the repudiation of the rehabilitation philosophy in favor of policies emphasizing deterrence, incapacitation, and retribution as the proper goals of punishment (Tonry, 1993; Travis et al., 2014).

However, when it comes to the whether these policies, or other actions, directly produced the growth in imprisonment in the U.S., with the exception of the well-documented increase in street-level drug enforcement (e.g., Tonry, 2011), the evidence is largely indirect and includes large gaps. In this literature, the central questions pertaining to mass incarceration are about its cultural meaning and the causal processes, operating largely at the societal level, that explain why these policies were enacted, not whether they actually made a difference (Garland, 2001; Beckett, 1997; Wacquant, 2009). Rather, my impression is that many scholars assumed that the tough on crime policies did exactly what their sponsors promised they would do—put more people in prison, and for longer. David Garland’s (2013) acknowledgment that (paraphrasing) “we know mass incarceration is a result of policy choices, we just don’t know which ones” seems consistent with this interpretation.

Of course, there is relevant empirical evidence in the form of evaluation research examining mandatory minimums, sentencing guidelines, truth-in-sentencing and three-strikes, at least in California. Of all of the criminal justice “reforms” introduced beginning in the 1970s and 1980s, sentencing guidelines like those in Minnesota, Washington, and Pennsylvania are the most comprehensive and most closely studied. Presumptive guidelines embodied the nation’s changing priorities and philosophical rationales for punishment and scholars who reviewed the evidence concluded that the reforms seemed to work (e.g., Blumstein et al., 1983; Von Hirsch, Knapp, and Tonry, 1987; Tonry, 1996; Austin et al., 1996). Judicial “compliance” with presumptive guidelines was generally high and, at least in Minnesota, guidelines did not appear to “displace” racial disparities to the charging stage (Miethe and Moore, 1985; Miethe, 1987). However, concluding that these reforms were working as intended did not mean they were increasing the severity of punishment. Although they required punishment based on the conviction offense and criminal history, the main goals were to make sentencing more predictable, fair, and to reduce racial disparities (Tonry, 2015).² Also, in some states (e.g., Minnesota, Washington, and later North Carolina), the goals included controlling their prison populations, and it appeared to work, at least initially (Wright, 2001; Marvell and Moody, 1996).

Studies evaluating mandatory minimums, three-strikes, and truth in sentencing (TIS) vary greatly in quantity and quality. Overall, however, there is little compelling evidence that they significantly increased imprisonment rates, and abundant examples in which these reforms seemed to make little difference (Engen, 2008). Numerous studies find that prosecutors and judges routinely circumvent mandatory minimums for gun violations and drug crimes either through plea bargaining or simply because they believe the punishment to be too severe (Travis et al., 2014). It is possible that they result in more severe punishments, on average, but most studies cannot assess this, and some find no change in the average sentences (Loftin and McDowall, 1981). There is even less evidence that three-strike laws substantially increased imprisonment in the U.S., mainly because most are written fairly narrowly and applied rarely (Travis et al., 2014). Also, they do not all require life without parole (LWOP) or 25 to Life, as in California. If prosecutors use them for leverage in plea bargaining, it is likely that some offenders are receiving longer sentences than they would have otherwise, but in most states, someone who qualifies for sentencing as a “habitual offender” would receive a very long sentence either way. Even in California, the impact on overall imprisonment rates was probably far less than assumed, and varies substantially by county, leading Sutton (2013) to conclude that its effect was largely, but not entirely, symbolic.

Despite the emphasis placed on TIS statutes, and the 1994 Violent Crime Act, which authorized federal funding for prison con...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Notes on Contributors
• Introduction
• Part I Policy Choices and Mass Punishment
• Part II Disparities in Pre-Conviction Processes
• Part III Disparities in Punishment Outcomes
• Part IV Risk: Race, Age, and Social Class
• Index