Sentencing Leniency for Black Offenders

In response to the racial disparities that plague the American criminal justice system, the Movement for Black Lives calls for an end to policing and punishment “as we know them.” But refusing to punish violent offenses leaves unprotected those most vulnerable to crime, and outright abolition thus appears to undermine black rights and liberties. The author calls this the decarceration dilemma. After discussing Tommie Shelby and Christopher Lewis’s attempts to resolve the dilemma, the author offers his own, which employs a procedural rather than a substantive solution. He leans on the principle of expanded asymmetry (EA), which holds that it is better to underpunish than overpunish. After defending EA, the author notes that it obtains only under conditions of uncertainty. He then shows that because virtually all trials of black offenders meet the uncertainty condition, sentencing authorities are obliged to treat black offenders leniently. This chapter concludes by noting the advantages of the proceduralist approach.

Who Gets a Second Chance? Effectiveness and Equity in Supervision of Criminal Offenders

Most convicted offenders serve their sentences under “community supervision” at home instead of in prison. Under supervision, however, a technical rule violation such as not paying fees can result in incarceration. Rule violations account for 25% of prison admissions nationally and are significantly more common among black offenders. I test whether technical rules are effective tools for identifying likely reoffenders and deterring crime and examine their disparate racial impacts using administrative data from North Carolina. Analysis of a 2011 reform reducing prison punishments for technical violations on probation reveals that 40% of rule breakers would go on to commit crimes if spared harsh punishment. The same reform also closed a 33% black-white gap in incarceration rates without substantially increasing the black-white reoffending gap. These effects combined imply that technical rules target riskier probationers overall, but disproportionately affect low-risk black offenders. To justify black probationers’ higher violation rate on efficiency grounds, their crimes must be roughly twice as socially costly as that of white probationers. Exploiting the repeat-spell nature of the North Carolina data, I estimate a semiparametric competing-risks model that allows me to distinguish the effects of particular types of technical rules from unobserved probationer heterogeneity. Rules related to the payment of fees and fines, which are common in many states, are ineffective in tagging likely reoffenders and drive differential impacts by race. These findings illustrate the potentially large influence of ostensibly race-neutral policies on racial disparities in the justice system.

Prediction and Incapacitation

Predictions of future violence by individuals are substantially more often wrong than right. Minority offenders are more often incorrectly predicted to be violent than are white offenders. White offenders are more often incorrectly predicted to be nonviolent than are minority offenders. Use of socioeconomic status variables is per se unjust and disproportionately affects minority offenders. Use of criminal history variables exaggerates differences between minority and white offenders, and increases racial and ethnic disparities. It is unjust ever to punish someone more severely than he or she deserves because of a prediction of dangerousness (or for any other reason). Increasing the severity of a sentence on the basis of risk prediction punishes offenders in advance for crimes they would not have committed. Judges and others using prediction instruments more often disregard low-risk predictions for poor and black offenders than for affluent ones.

Disparity in Capital Sentencing

The death penalty has long been a source of debate and is perhaps the most litigated sentence in the United States. Arguments for the use of the death penalty point to “just deserts” or retribution, while arguments against its use point to its implementation, including how the death penalty is administered (e.g., via electrocution, lethal injection), the types of offenses that are eligible for the death penalty (e.g., murder, rape, treason), and the offenders who are sentenced to death (e.g., males, minorities). This latter concern is the subject of much research, to the extent that a number of U.S. Supreme Court cases have addressed this research, especially in the cases Furman v. Georgia (1972) and McCleskey v. Kemp (1987). Research has indicated that those who are sentenced to death share common characteristics, including gender, minority status, social class, geography, and victim similarities. Overwhelmingly, research has noted that, in general, those who kill white victims are the most likely to receive a death sentence, particularly black offenders who kill white victims. Also, males are more likely to receive a death sentence than females, low-income individuals are more likely to receive a death sentence than higher-income individuals, and committing a capital offense in a handful of counties in the United States increases the likelihood of a death sentence. It is difficult to determine in most cases the reasons for this disparity. Outright discrimination by prosecutors, judges, and/or juries is a possibility, but the court system has made it extremely difficult for offenders to prove discrimination in their individual cases. Some researchers argue that the criminal justice system is stacked against minorities and the poor, by enforcing laws more forcefully in their neighborhoods and requiring financial resources to defend oneself (e.g., bail, defense attorneys). Regardless of the reason for disparate treatment in individual cases, the fact that disparate treatment exists is concerning in a country whose constitution emphasizes due process and equal protection under law.

Not “Radio Nowhere”

Chapter 6 lays out the TJMS’s history of dealing extensively and as an activist counterpubic node with the racism baked into the U.S. criminal justice system, including the differential treatment of whites versus all people of color—as in media neglect of the cases of missing black girls and women. It also lays out TJMS’s militant gun-control stance and opposition to the NRA. It documents their reactions to black offenders, and to innocent African Americans released from prison because of DNA evidence. It lays out TJMS coverage of and activism for victims of police violence/racist criminal justice Sean Bell, Trayvon Martin, Eric Garner, Melissa Alexander, and Michael Brown.

Examining Ethno-Racial Related Differences in Child Molester Typology: An MTC:CM3 Approach

Sex offender typologies have been developed in an effort to better understand the heterogeneity of sexual offending as well as offenders’ varied risk and therapeutic needs. Perhaps the most well-known and validated child molester typology is the Massachusetts Treatment Center: Child Molester Typology–Version 3 (MTC:CM3). However, this typology was developed and validated using primarily White sex offenders. The current study aimed to replicate this typology in an ethno-racially diverse sample of incarcerated White, Black, and Latino child molesters ( N = 499). Overall, we found that the MTC:CM3 was applicable to non-White child molesters but that there were differences in the proportion of offenders of different ethno-racial groups in Axis I type classifications. We found no differences in Axis II type classifications. Specifically, Black offenders were more often classified as socially incompetent and sexually attracted to adults compared with White and Latino offenders. Whereas White offenders were more often classified as socially incompetent and sexually fixated on children when compared with Black offenders, Latino offenders were more often classified as high in social competence and sexually attracted to adults than Black offenders. On Axis II, the majority of all three subsamples were classified as not having sexual contact with children beyond the offense, unlikely to inflict physical harm on victims, and as not having sadistic interests. Addressing these typological characteristics in the development and implementation of prevention and treatment efforts might increase the responsiveness of specific sex offender populations.

Towards an intersectional model of desistance for black offenders

Purpose – Desistance is increasingly conceptualised as a theoretical construct which is used to explain how offenders orient themselves away from committing crimes. Previous studies suggest that successful desistance occurs due to one or a number of factors. These factors include things such as: faith (Giordano et al., 2007); a rite of passage (Maruna, 2010); gender (Giordano et al., 2002); psychosocial processes (Healey, 2010); personal and social circumstances which are space and place specific (Flynn, 2010); ethnicity and faith (Calverley, 2013); race and racialisation (Glynn, 2014). However, to date there has been little work undertaken to examine how notions of “intersectionality” may be a more appropriate theoretical lens through which to locate and contextualise the understandings of desistance when looking at marginalised populations such as black offenders. Intersectionality is an understanding of human beings as shaped by the interaction of different social locations. These interactions occur within a context of connected systems and structure of power. Through such processes independent forms of privilege and oppression are created. The paper aims to discuss these issues. Design/methodology/approach – The paper concludes with a perspective that envisions moving towards an “intersectional model of desistance for marginalised groups such as black offenders”. Findings – It is the author’s view that the development of a intersectional model of desistance for black offenders may begin a dialogue that further pushes the study of re-entry and desistance into an area that transcends the criminal justice system and locates itself firmly within the civil and human rights of black offenders, and indeed, offenders as a whole. It is hoped that by using intersectional approaches when conducting inquiries we will be able to lead towards eradicating multiple oppressions faced by so many sections of the offender populations and the communities they come from. Research limitations/implications – This paper is positional inasmuch as it attempts to establish some, principled arguments to advance the study of desistance. Therefore, a testing of the views expressed in the paper is required. Practical implications – It is the author’s contention that for those black offenders who desire to quit crime, there needs to be networks and activities that not only support their desire to desist, but a radical reframing of how interlocking oppressions that render them subordinate must become a key driver for the desistance project. How can/do black offenders acquire and tell their own authentic narrative when it has been shaped by a history of oppression? It is therefore right to assume that meaningful reintegration of black offenders back into communities requires a deeper commitment to culturally competent rehabilitative processes, that could lead towards a culture of desistance. Social implications – An “Intersectional Model of Desistance” also needs to challenge some white criminologists’ claims by validating the black contribution to criminological theorising. This position should embrace and include perspectives which unify theoretical positions that validate interlocking oppressions; racism, poverty, ethno-cultural group membership, etc., where the broader distribution of opportunities across society, and the ability to recognise them as such as opportunities for black men to desist are taken into consideration. As part of a process of rehabilitation, black offenders need to be engaged with intersectional institutional processes and practices that will lead to a challenge of their criminal values and behaviour, designed to increase their capacity to consider desistance. It is hoped that by using intersectional approaches when conducting inquiries we will be able to eradicate multiple oppressions faced by so many sections of the offender populations and the communities they come from. Originality/value – Understanding how the experiences of black offenders, are impacted by examining interlocking oppressions of criminal justice processes; police, courts, incarceration, probation, etc., would critically assess how these intersections enhances or impedes the desistance trajectories of black offenders, in relation to offenders as a whole. As much of black offender lived reality centres on having to contend, not just with criminal justice process, but the additional oppression of racialisation, the outcomes become more heavily context dependent and driven.