Many scholars have debated on the issue of ethnicity dynamism and the criminal justice system and on the connection between the two. While some scholars have supported the existence of racial discrimination in the judicial systems, others have argued thatit is negligible. However, the latter agree that racial discrimination in sentencing in the contemporary times is a stealthy process, which is connected to other factors but still plays a critical role in many criminal justice outcomes. Kansal and Mauer (2005) deliver a review of the literature regarding racial disparity in sentencing and provide key findings related to the issue. The effects of racial and ethical discrimination during sentencing is attributed to stereotypes that perceive the offender as dangerously criminal and are controlled by factors including age, gender, economic status andethnicity of the offender.
Racial and ethnicity bias in sentencing can be attributed to several direct and indirect causes.Direct effects of racial discrimination are seen in the judge’s or prosecutor’s discriminative decisions based on the race or ethnicity of the offender. A review of forty judicial studies by Spohn (2000) showed that in many cases direct effects are exhibited by thedevaluation of black victims. For instance, several studies showed thatblacks that offended whites were more harshly sentencedthan those blacks who offended other blacks, or whites who offended blacks. This shows that judges were biased on the basis of ethnicity when passing the verdict. Also, the same review showed that young, male, and unemployed minorities who are less educated receive harsher sentences than their white counterparts with the same attributes. Similarly, while white and minority offenders of less serious offences usually receive the same sentence, minorities who commit serious offences like sexual assault receive harsher verdicts than their white counterparts (Spohn&Delone,1999). Evidently, the judges in such a scenario stereotype the minorities and view them as more threatening and more likely to offend again.
Equally, pre-trial detention, plea bargaining, and serious prior criminal record result in harsher verdicts for minorities than for whites.Barschuck (2010) found that ethnic minorities were less likely to be released even after pleading guilty and they were more likely to be asked to pay bail as a provision of discharge. Since offenders are usually financially deprived, they often cannot afford to pay the bill. Consequently, more racial minorities receive pre-trial detention as compared to the whitesand, therefore, end up receiving harsher sentences. These findings provide an undeniable proof that race and ethnicity have an effect on sentencing.
Controversy has risen in answering the question of whether Hispanics are treated more harshly than the other offenders. There are several reasons why the Hispanics are perceived with scrutiny. According to Demuth and Steffensmeier (2004), the growing number of Hispanics immigrants is posed as a threat and it leads to the development of stereotypes that perceive them as lazy and irresponsible or link them to drug trafficking, In addition, they are misrepresented in the political arena, which describes them as powerless and lacking intelligence due to which they are more prone to conducting criminal activities. These aspects create a great cultural void. Research based on the hypothesis that these allegations could result in harsher verdicts for the Hispanics as compared to the rest of the population showed that the rate of incarceration for Hispanics was the highest. For offenses that were not related to drugs, imprisonment rates were 46.2%, 62.9% and 66.9% for whites, African Americans, and Hispanics respectively. For drug related cases, the incarceration rates were 52.3%, 69.9%, and 87.4% for whites, African Americans, and Hispanics respectively. Results based on the seriousness of the crime, criminal history, theage of the alleged lawbreaker and conviction remain the same, as although there are certain variations in numbers, the incarceration rates remain higher for the Hispanics (Demuth &Steffensmeier, 2004).Therefore, due to the perceived cultural distinction and stereotypes, the Hispanics receive stricter sentences than the rest of the population. For example, a judge who considered himself impartial described stated that the area changed and now had more dope, felony and paucity due to the “influx” of the Hispanics (Walker, Spohn&DeLone, 2012).
Another group of people which is perceived to receive severer sentences is the immigrants. This perception is mostly based on the argument that immigrants are more likely to engage in criminal activities than the native born. However, according to the American immigration council, higher immigration is linked to decreased crime rates. For instance, between 1990 and 2013, the number of unauthorized migrants to America rose from 3.5 million to 11.2 million (Ewing, Martínez and Rumbaut, 2015). Simultaneously, the rate of violent crimes declined by 48%, while property crime declined by 41%. Additionally, several researches showed that immigrants, including those who reside in the country unauthorized, are less likely to commit criminal offensesthan the native born (Ewing, Martínez and Rumbaut, 2015). Conversely, Light (2014) found that regardless of the above considerations, immigrants receive harsher sentences than the citizens of the United States. Additionally, compared to the natives, 96% of the immigrants who were incarceratedwere also imprisoned. This divergence could not be accounted for even after incorporating factors such as theseriousness of the offense and previous criminal records. Therefore, these high rates of imprisonment, severe and longer sentences do not correspond to the previous findings which showed that immigrants are less likely to commit criminal activities than the natives. These facts illustratethat illegal immigrants are discriminated during the judicial process.
The existing stereotypes that perceive Asians Americans as intellectual and economically situated create the question of whether they receive lenient treatment during the judicial process. Franklin and Fearn (2015) found thatcompared to other marginalized groups the average income for Asian Americans was higher. Their intellectual achievements also surpass those of other marginalized groups and the whites. As a result, they are shielded from ethnical stereotypes that could associate them with criminal activities. Johnson AndBetsinger (2010) assessed results of sentences outcomes, which showed that rates of incarceration were 93%, 85%,74%,and 71% for Hispanics, African-American, whites, and Asian American respectively. Assessment of the length of the verdict also indicatedthat Asians Americans usually receive shorter sentences. These results, therefore,indicatethe effects of racial stereotypes. Again, stereotyping plays a large role here, too, as Asian Americansare considered to possess high intellectual capacity and knowledge due to which theyreceive lenient sentences.
Gender and age are interconnected aspects that affect ethnicity discrimination during sentencing. An assessment conducted on sentencing suggested that each of the three aspects was directly related to the probability of incarceration as well as the length of sentences. For instance, racially marginalized, young offenders, and males, received harsher verdicts than their white, older, and female counterparts respectively (Walker, Spohn and DeLone, 2012).These findings were endorsed by another study conducted on the relationship between ethnicity, age, gender, and employment. The sentencing outcomes for Miami, Chicago, and Kansa City were analyzed. The results showed that the severity of the verdict was greatly affected by ethnicity and age in Miami and Chicago. However, in Kansas City the severity of sentences was mostly affected by age, which effected females more than males. As a result, the two studies support the interrelationship between ethnicity, age, and gender, as factors that determine the harshness of the sentence (Spohn, 2000).
Moreover, when the aspect of unemployment was incorporated in the study, the finding showedthat the unemployed and marginalized youths receivedmore severe sentences. This could be attributed to restricted judiciousness when passing the sentence. Due to the fact that judges face with limitations such as time and information, they opt to apply stereotypes which are based on ethnicity, gender, and age, to determine the waywardness and dangerousness of the offender (Spohn, 2000).Therefore, the combination of the four factors affects the harshness of the sentence more than any singled out factor.
The effect of race on assaults sentences is evident, with the aspect of the victim being put into consideration. For instance, empirical research findings show that African American men who assaulted white women had a higher chance for long-term imprisonment. Conversely, this was not true in cases where the victim was an African American woman. In other words, blacks whose victims were whites received longer verdicts compared those whose victims were black women or whites who offended white women (Spohn, 2000). Evidently, in both intra and interracial assaults, the African American offenders receive harsher sentences, especially when the victim is white. Other crimes in which the effect of race affects sentencing are less serious crimes like forgery and shoplifting, again also due to stereotyping.
According to Walker, Spohn, and DeLone (2012), the liberation hypothesis proposes that for significantly serious offenses, asuitable verdict is significantly dependant on the seriousness of the offense as well as the offender’s past criminal record. A study conducted on the probability of incarceration for murder, rape, robbery, and assault revealed that the effect of race wasonly evident in cases of assault offense which is considered less serious than the other three offenses. Also, the effect of race was significant in sentencing offenders with no violent felony conviction and those who did not use a gun. Notably, prior criminal record and use of aweapon increases the seriousness of the crime. Therefore, these findings show that race was less influential whensentencing offenders who have already committedserious crimes. The findings, therefore, supported the liberation hypothesis.
Accordingly, the liberation hypothesis would also lead to the conclusion that the effects of theraceare strongly evident in sentencingmisdemeanor. However, a research conducted on misdemeanor cases for a jurisdiction in thesoutheasternstates gave different findings.Although the findings portrayed racial discrimination in sentencing, the evidence was more outstanding in felony cases than misdemeanor cases (Leiber and Blowers 2013). These variations have yielded a lot of controversy around the liberation theory and more research should be conducted to demystify the topic.
Similarly, the effects of race in passing the verdictintertwine with the war on drugs in the United States. The aggressive fight against drugs in the United States has aggravated the fate of racial marginalized due to stereotypes that link this group to drug-related crimes. Findings from multiple studies regarding this issue led to the same conclusion. Blacks and Hispanics, who violate drug laws, and especially those who engage in drug trafficking, have a significantly higher probability of incarceration for longer periods of timethan their white counterparts (Spohn, 2000). Moreover, an assessment of raw data of sentence results in Pennsylvania revealed that Hispanic violators of the drug laws received the harshest treatment. Their rate of incarceration was 87.4 % when compared to 69.9% for African Americans and 52.3% for whites (Walker, Spohn&DeLone (2012). Kansal and Mauer (2005) found that judges’ stereotypes are based on gender, past criminal records, and involvement or use of thedrug to determine the dangerousness of the defendant. Evidently, this suggests that the judges’ stereotypes portray the defendant as a threat to the public and, therefore,he or she deserves incarceration,which white offenders in the same scenario avoid.
In the same line, when a similar study was conducted at federal courts,McDonald and Carlson (1994) found that Hispanic and black drug trafficking convicts received harsher sentences than their white counterparts. The rate of imprisonment for whites was 92%, compared to 96% for African-American and 97% for Hispanics. Also, the length of incarceration was longest for blacks and shortest for whites. These findings can be attributed to the stereotypes that connect the marginalized with dangerousness. Notably, findings in the State and Federal Courts show that judges use prejudice and stereotypes that represent marginalized drug offenders as a threat to the public. Harsher and longer sentences for these offenders are again a result of stereotyping.
The findings discussed throughout this paper are basedontheoretical hypothesis, which is then supported by empirical analysis. As a result, scientific models are used during the data analysis to support the claims. Evidently, racial stereotypes have led to the marginalized being associated with crime and this has hindered justice for the marginalized. Despite the fact that the marginalized account for only 30% of the total population in America, this group accounts for 58% of the prison population (Ghandnoosh, 2014). This tendency has tarnished the justice system. Moreover, a false association of crimes with the marginalized ignores the actual white offenders thus derailing the efforts of countering crime. The association of crime with race has also led to the death of innocent people under the hands of apprehensive citizens and wary police.
Based on the statistical findings, it is notable that the level of discrimination in sentencing is too significant to be ignored. The trend is worrying for a country that prides itself to be the leader in matters of justice. Therefore, relevant measuresshould be put in place to counter this trend. In the past, several policies have been enacted to counter this problem, such as the Race Neutral Policy. States like Oregon and Iowa have formulated policies that require a racial impact investigation conducted before regulating a new crime or modifying a criminal penalty.Fair Sentencing Act of 2000 has seen the reduction of drug sentences (Ghandnoosh, 2014). However, the disparity in sentencing the marginalized and the whites has remained significantly high, whichcan be attributed to challenges like minimal restrictions on the ability of the judges to alter the sentences. The media portrayal of the marginalized has earned them a bad name, which sometimes affects them in the judicial process. Notably, if this trend persists, it could cause future challenges of congestion in the incarceration institutions due to the increasing number of immigrants. Moreover, this group might start to protest against this discrimination and cause conflicts in the nation.
In conclusion, relevant empirical studied provide enough proof for discrimination of racially marginalized during sentencing. Discrimination based on stereotypingis mostly determined by the seriousness of the crime, age of theoffender, and past criminal records of the offenders. The bias is attributed to the stereotypes that depict the marginalizedgroup as dangerously criminal. The disparity is common in assaults and drug offenses and less noticed in less serious offenses. Although several policies have been put in place to counter this trend, the problem has persisted. Therefore, this paper recommends that the relevant stakeholders, including policymakers, researchers, the media and criminal justice practitioners, should combine efforts to find an effective and lasting solution to this problem.
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