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Josh SmithResearch MethodsCRIJ-5398-811July 5, 2015

Abstract There have been many studies to address the correlation between race and sentencing outcomes. Most of the studies found results significant enough to conclude that race is a major factor when it comes to sentencing outcomes. The ethnicity of the populace in the United States is becoming more diverse. This is not true of population in our prisons. It is obvious to see that there is a significantly larger percentage of non-white inmates in comparison with the general population. Several other variables like education, income, gender, location, and age play a decisive role in sentencing outcomes, specifically when cross-tabulated with a defendants race. Researchers have tried relentlessly to find specific reasons prisons are overpopulated with minorities. They have concluded that race plays a major factor in the sentence given to a defendant and the entirety of the judicial system. The one variable that stands out when it comes to jail time are drug related cases. The research reviewed indicates an overwhelming racial disparity in jail time in similar cases that involve drugs.

Introduction The following proposal for research is based on peer-reviewed academic research conducted by some of the top minds in the criminal justice field. It is also based on census numbers provided by the United States Census Bureau in regards to crime rates and the populations in US prisons. The literature reviewed proves that there is racist bias in our judicial system. It also proves that sentencing outcomes are affected by this bias. There is also evidence that drug related cases prove to be the most likely cases to be affected by this bias based on a significantly higher number of minorities receiving significantly harsher sentences for the same crimes as their White counterparts. The researcher has based his proposal on those concepts. The goal of the research is not to find a solution to the problem. The objective is to add to the research that has already been conducted and to further the education of this major issue plaguing our judicial system. The goal is to create a truly blind study by removing the race of the defendant so that they may be judged by their peers. The true intention of the law.

Literature Review

Race

Racial disparity in the criminal justice system is the result of dissimilar treatment of similarly situated people based on race. The two main causes of this phenomenon are racial bias and factors indirectly associated with race like socioeconomics, education, and family structure. The claim that the high minority representation in the justice system is based solely on minorities committing more crimes has been proven false. A 32-state study conducted in 2001 concluded that when relevant factors were controlled, Blacks and Hispanics are more likely to receive jail time than Whites. In many cases they even receive longer sentences (Spohn, 2001). Race has been a major topic of study in the criminal justice field. Disparities are just too great to ignore. According to the US Bureau of Justice Statistics, Black and Hispanics comprise 13.6% of the total population in the United States, yet, they comprise 89.4% of the total population in United States prisons. Per 100,000 Americans, 7,284 are imprisoned. Of those imprisoned, 6,615 are either Black or Hispanic. Only 769 are White men and women. Blacks in our country are seven times more likely to be incarcerated than Whites. The odds are also increased by a lack of education. Black men with a college degree are four times less likely to ever be incarcerated than those who do not pursue higher education. This has a profound effect on the Black family. It is more likely for a child that is Black to have parent in prison than one that is White. This form of childhood disadvantage has many consequences on our society (Western and Wildeman, 2009). Half the homicides each year are White persons, yet 80% of all those currently on death row are there for killing a White person. That means that only 20% of the people on death row killed a non-White person. Minorities are at a huge disadvantage in the legal system when it comes to our most severe penalties (Cole, 2000). In regards to psychological factors of violence, Black males were more likely than Whites to commit violent crimes. Black females were found to have similar results in regards to violence as White males. Black famales are more likely to commit violent crimes compared to White females (Baskin-Sommers, et al., 2013) Location of the court can also be a determinant when it comes to race and sentencing outcomes. There is a racial divide in our country can not be ignored. Courts in Southern jurisdictions have sentenced non-Whites more severely than Northern courts. The racial lines drawn hundreds of years ago still exist in our courts. More interesting is the fact that things do not seem to be changing. Since the 1970s, unwarranted racial disparity has continued on the same pace (Mitchell, 2005). In summary, the justice system is not keeping pace with the racial evolution happening in the United States. Courts in Republican-leaning jurisdictions were also found to give harsher punishments to Blacks. Courts more favorable to Blacks were mostly Democratic. Political affiliation had a significant effect on sentencing outcomes. Blacks tried in areas where there was a high population of minorities did find themselves recipients of some leniency (Helms & Costanza, 2010). When people were judged by their peers, they tend to be treated as a peer. They are not looked down upon. A defendant will receive a more favorable sentence when their skin color matches that of the jury. The race of the judge and how he views the defendant can also be a factor. A Black judge is more likely to sympathize with a Black defendant than a White judge. Defendants are more likely to receive a fair trial when the judge is of the same ethnic background (Steffensmeir and Dumuth, 2001).

Sentencing Outcomes An early study conducted by Ulhman in 1979 determined that there is a significant amount of racism towards non-Whites in sentencing outcomes. The methodology used was simple, yet conclusive. A decade later, Sidanius conducted a reanalysis of the data and concluded that the data was correct. The methodology used by Sidanius when conducting the reanalysis of data included factors like bail status, type of counsel acquired, and ability to plea bargain. Minorities were less likely to be able to afford outside counsel. Counsel was usually provided by the state. This limited the ability to receive bail and to make deals with the court. Money is a factor, but it was determined that racism had a much more significant correlation when determining sentencing outcomes. Sidanius took many more factors into account than Ulhman finding even more conclusive results. He went as far as to say that pure racism in the American justice system is a major cause in the severity and outcome of criminal cases (Sidanius, 1988). Black defendants are significantly more likely to be sent to jail as opposed to receiving probation compared to White defendants. There was no significant evidence of this being true when the prisoners were sentenced to prison. The disparity between White and Black defendants was only found in those sentences involving jail as opposed to prison (Freinburger and Hilinski, 2013). The most severe punishment our current system allows is the death penalty. By analyzing the death penalty we are able to see who receives the most severe punishment and why. Those who receive the death penalty are thought to be the most danger to our society. Since the death penalty was reinstated by the Supreme Court, those executed have mostly been Blacks who killed Whites. Only 11 white people have been put to death for killing a black person. In comparison, there have been 143 Blacks executed when the roles are reversed. This is a very significant difference. Minorities who kill Whites receive the harshest punishments (Doemer & Demuth, 2010). This can be seen as the courts valuing the life of a White person more than that of a Black person. For example, a person is 3.4 times more likely to be sentenced to death when the victim is a White person. A minority who kills another minority will likely receive a lighter punishment (Doemer &Demuth, 2010). Gender is another determining factor when it comes to race and sentencing severity. Males are more likely than females to receive harsher punishments. Although this is true, race still plays a factor, especially for men. Hispanic and black males are much more likely to be incarcerated than Whites. The average sentence for a non-White male is 91 months compared to 36 months for whites. Hispanic and Black females are also more likely to be incarcerated than Whites, but at a less significant rate. There is also a much smaller gap when it comes to sentencing lengths, but again, there is one (Doemer & Demuth, 2010). It has been determined that males receive harsher and longer sentences compared to females when committing comparable crimes. Those that receive the harshest punishments are young Black and young Hispanic males. Although age is a factor is sentencing outcomes, race is still the major contributor (Doemer & Demuth, 2010). In fact, in a study that focused on sentencing based on a judges ethnicity, Hispanics received the harshest punishments. Some of the determining factors behind this concluded that Hispanics are more likely to be involved in large crime networks. Their tendency to be loyal to large crime networks makes them less likely to rat on their peers or to accept plea bargains (Doemer & Demuth, 2010). Crime networks can be seen in all ethnic groups. Loyalty with ones race can be a huge factor in the courtroom. In this instance, the defendants are putting themselves at a disadvantage by placing their race at the front of the courtroom. Many scholars point out that mandatory sentencing has done more harm than good when it comes to racism in the courts. The mandatory minimum was put in place to force the courts to judge defendants equally. Judges are supposed to base their decision solely on the merit of the crime and the defendants past record. This has proved not to be true. Mandatory sentencing has actually led to higher rates of discrimination and harsher penalties for non-Whites. When it comes to the mandatory minimum, Blacks were more likely to receive a punishment exceeding the minimum. White defendants have been found to actually receive punishments below the mandatory minimum. This phenomenon is likely due to the ability to afford better representation in court (McMillion, 1993). Having better counsel can increase the ability to reach a plea bargain and avoid jail time. Another study conducted in Michigan tried to determine if the type of crime committed by the defendant played more of a factor than race in sentencing outcomes. The crimes analyzed ranged from small crimes like robbery to felonies. It was determined that race was the most significant factor regardless of the type of crime. Blacks were given a sentence on average 35.6 months longer than a White person who committed the exact same crime. Mexican-Americans also saw an increase of 25.8 months compared to Whites who committed equally severe crimes (Hawkins, 2005).

Drugs Blacks represent 38% of the prison population and only 13% of the overall population. Black men have a 32% chance of spending some time in jail throughout their lifetime. This phenomenon is especially true in cases involving drugs. In 2006, the U.S. Department of Health and Human Services reported that 14% of Blacks consider themselves drug users compared to 20% of Whites. Yet Blacks represent 53% of drug convictions, 45% of drug offenders in prison, and only 35% of those arrested (U.S.Census, 2007; Fellner, 2006). According to a 2009 report by Human Rights Watch, the number of White drug offenders is six times greater than Blacks. 82,587,000 Whites have used drugs in their lifetime compared to 2,618,000 Blacks. The difference holds true when comparing non-designer drugs. For example, 5,553,000 Whites have used crack cocaine in comparison to 1,537,000 Blacks. For the last 30 years, the fastest growing crime type in the criminal justice system whose sentences include incarceration have been drug related. Taking a deeper look into drug related offenses and the race of the offenders will bring a better understanding to who is in jail and why (Human Rights Watch, 2003). The research will attempt to remove racial bias found in sentencing outcomes. Results from this study can be used to increase understanding of sentencing outcomes in regards to race. The goal is to remove racial disparity from the criminal justice system.

Research Proposal

Research Question

RQ #1: Does race have a significant impact on sentencing outcomes in cases involving drugs?

Hypothesis

H #1: Sentencing outcomes will not have a significant racial difference when the facts are presented without racial bias.

H #2: Minorities will be given sentences equal to those given to Whites.

H #3: The sentences given to Whites will be on average less than 1 year longer than the control group.

H #4: The type of drug involved in the case will not have a significant effect when race is removed.

Variables

Independent Variable: Race of defendant

Dependent Variable: Sentencing outcome

Independent Variable: Race of Defendant

Dimension #1: Race Attributes: White (majority) Black (minority) Hispanic (minority) Other (minority)

Dimension #2: Drug Case Attributes: Case involving drugs Jury trial

Dependent Variable: Sentencing Outcomes

Dimension #1: Type of Sentence Attributes: Not guilty (no jail time) Probation (no jail time) Jail time

Dimension #2: Difference in Sentencing Outcomes Attributes: No difference Less than 1 year 1-5 years over 5 years

Dimension #3: Type of Drug Attributes: Marijuana Cocaine (powder) Crack (non-powder cocaine) Designer drug

Population The sample will be constructed to represent the traits of a typical jury. Citizens who receive a jury summons in Bexar and Travis Counties will also be asked if they would like to participate in an online survey. This process will continue until 1,000 participants have completed the survey. This selection process will be used to choose participants because the jury summons guarantees survey participants are above the age of 18, U.S. citizens, and chosen as random as a typical jury. Bexar and Travis County were chosen for their proximity and large population.

Collection Method Participants will be directed to a website where they will take the online survey. The online survey method was chosen because it will allow participants to complete the survey without location and time restrictions. The survey is estimated to take 30 minutes to complete. The online survey will be very cost effective. Survey participants will be given 3 cases to read. Each case will take an estimated 10 minutes to complete. The race of the defendant in each case will not be revealed to the survey participants creating a blind test. At the end of each case, the participant will sentence the defendant from that particular case. All data collected will be quantitative. The quantitative data will be cross-tabulated to test for significance.

Survey The online survey will be a quasi-experiment constructed to remove racial bias from sentencing outcomes. Each case will include the defendants criminal history, evidence presented in the case, the prosecutions main arguments, and the defenses main arguments. At the end of each case, the participant will have three choices. The first choice will be not guilty/no jail time. The second choice will be probation/no jail time. The third choice will be guilty/jail time. If the participant chooses guilty/jail time, they will be asked to indicate the amount of time they will sentence the defendant. Participants can enter sentencing lengths in both months and years. The use of a quasi-experiment for this study allows the researcher to manipulate each case so that all the relevant information is presented to the participant in a short amount of time. This also allows the researcher to create cases from actual cases. The actual cases will represent the control group. Using actual cases allows the researcher to know the sentencing outcomes handed down by an authentic jury. The bulk of the cost and time associated with this study will be dedicated to the construction of the cases. 30 cases will be created from actual drug related cases decided by a jury trial. Drug related cases were chosen because of the significant disparity in sentencing outcomes in regards to race, especially for Blacks. Cases sentenced by jury were selected to try to create similarities between the jury members and the survey participants. The non-probability of the cases chosen will help the researcher determine which cases are chosen based on the defendants race. The demographics of the cases chosen will attempt to represent societal demographics. Cases will be randomly distributed to survey participants. Survey participants will also be asked, but not obligated to give their race, gender, and age. No other information will be taken to protect the participants anonymity. Cross-tabulation Quantitative data collected will be cross-tabulated for both the control cases and the cases presented in the online survey. Once cross-tabulation is completed, data from the control cases and the cases created for the purpose of this study will be compared. Any significance found will represent racial disparity. Cross-tabulation was chosen because it is the best way to compare the defendants race and the variables. The first variable is whether or not the defendant receives jail time. The second variable is the length of jail time received. The third variable focuses on the type of drug involved in the case.

Conclusion Public mistrust in the criminal justice system impedes the ability of the law to function properly from the top down. As long as racial disparity exists in the criminal justice system, there will be mistrust. The criminal justice system can gain credibility by creating a system that is not racially biased. The problem is that the criminal justice system represents society as a whole. As long as racism still exists outside of the system, it will exist within. Justice is supposed to be blind. If that were the case, it may reflect back onto society. One way for the criminal justice system to move in this direction is through education and continuous research. The ability to conduct blind research studies improves perspective into a system that is not blind. In fact, the system has proven to base its judgments more looks than on facts. There are many factors that can be explored when determining the length of a defendants punishment and whether that punishment is fair. When a defendant goes before court, they are supposed to be judged based on their actions and not by the color of their skin. The ugly truth is that racism exists in our judicial system. The research conducted has brought a lot of answers, but it also raises a lot of questions. The main conclusion reached is that a defendant will be judged by the color of their skin. The severity of the crime, past legal history, and even the race of the victim can play a factor. Many of the questions remaining should be explored using data already collected, like the reanalysis done by Sidanius. This could save future researchers time and money. New research and data collection should also be conducted. Although the study by Mitchell would argue that there has not been a significant change in our judicial system in regards to race, new data could bring more answers to light. The socioeconomic status of the defendant was not included in most studies. Also not studied was the defendants level of education. These two factors could help make more sense of data collected. There needs to be more research into how a defendant is viewed within the legal system from the moment of arrest to their judgment. Humans run the system, and it is human nature to have preconceived notions when evaluating another human being. Politics and racism should not play a role. The beauty of the American justice system is that the defendant does get to defend himself or herself in front of a judge or jury. They are judged by their peers and have the ability to tell their story when seeking justice. Our system invades the very being of the defendant so that they can be judged. Unfortunately for minorities, our system has let them down, and it looks like it is going to continue to do so. Justice is not blind.

Works Cited

Baskin-Sommers, A., Baskin, D., Sommers, I., & Newman, J. (2013). The intersectionality of sex, race, and psychopathology in predicting violent crimes. Criminal Justice and Behavior, 40, 1068-1091.Cole, D. (2000 January 11). Race, life and death. Washington Post, A17. Doemer, J., & Demuth, S. (2010). The independent and joint effects of race/ethnicity, gender, and age on sentencing. Justice Quarterly, 27, 1-27.Fellner, J. (2009). Race, drugs, and law enforcement in the United States. Stanford Law &

Policy Review, 20(2), 257-291.

Freiburger, T. L., & Hilinski, C. M. (2013). An examination of the interactions of race and gender on sentencing decisions using a trichotomous dependent variable. Crime & Delinquency, 59, 59-86.Hawkins, H.C. (2005). Race and sentencing outcomes in Michigan. Journal of Ethnicity in Criminal Justice, 3, 91-109. Helms, R., & Costanza, S.E. (2010). Modeling the politics of punishment: A contextual analysis of racial disparity in drug sentencing. Criminal Justice Review, 35, 472-491. Human Rights Watch (2003). Ill Equipped: U.S. Prisons and Offenders with Mel

McMillion, R. (1993, March). Hard time: Mandatory minimum sentencing comes under Congress and scrutiny. ABA Journal, 79, 100. Mitchell, O. (2005). A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology, 21, 439-466. Sidanius, J. (1988, March). Race and sentence severity: The case of American justice. Journal of Black Studies, 18, 273-281.Spohn, C. (2001). Thirty years of sentencing reform: The quest for a racially neutral

sentencing process. Criminal Justice 2000, 3, 427-501.

Steffensmeir, D., & Demuth, S. (2001). Ethnicity and judges sentencing decisions: Hispanic-black-white comparisons. Criminology, 39, 145-178. U.S. Census Bureau (2007). 2006 American Community Survey. Available online at:

http://www.census.gov/acs/www/index.html.

Western, B., & Wildeman, C. (2009). The black family and mass incarceration. Annals of the American Academy of Social and Political Science, 621:221-42.