©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan Chapter 16 Prosecution and Punishment

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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”

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan Prosecutors, the Courtroom Workgroup, and Plea Bargaining  Heavy caseloads burden courtroom workgroup (prosecutors, defense attorneys, judges)  Plea bargaining helps process huge caseloads

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  Two types of societies  Small folk  Collective conscience  Mechanical solidarity  Repressive law: harsh physical punishment of offenders

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  Advanced, larger society  Social solidarity is organic; derives from interdependence  Restitutive law: interest in restoring relationships to previous state

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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 1 st degree murder than people accused of killing blacks

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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)

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan The Death Penalty Debate Three Arguments  Deserve to be executed  Saves money  Sends a message

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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)

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan  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

©2009 Pearson Education, Inc. Criminology, 4th edition Upper Saddle River, NJ Steven E. Barkan 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