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Theories of inequality informal social control often attribute racial disparity in criminal justice outcomes to racial profiling, also known as racial stereotyping, arguing that the use of global stereotypes linking race-ethnicity to criminality results in the more punitive treatment of minority defendants than white defendants.
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These theories contend that, as a result of these stereotypes, minority defendants are perceived to be more dangerous, threatening, and culpable than white defendants, and are punished more severely than comparable white defendants (for example, Albonetti, 1991, 1997; Steffensmeier, Ulmer, and Kramer, 1998; Steffensmeier and Demuth, 2000). Research in the organizational tradition, in contrast, suggests that the stereotypes most relevant to court actors are stereotypes about particular kinds of crime and criminal offending. According to this perspective, disparities in punishment arise when race or race-related factors are contained in decision makers' stereotypes about "normal crimes" (Miethe and Moore, 1986). The accumulated evidence of racial disparity in criminal justice, though, has proven inconsistent (Daly and Tonry, 1997). Thus, understanding the effects of race in criminal justice continues to pose an important challenge for research and theory on inequality informal social control.
The racial profiling approach to understanding the disparity in punishment asserts that global culturally derived stereotypes about race ethnicity link certain groups of offenders to notions of dangerousness, culpability, and the threat of criminality. This underlying notion is common to much contemporary research on race-ethnicity and sentencing outcomes. Essentially, these theorists argue that harsher treatment of minority offenders arises because they are perceived as more culpable or dangerous than whites, or both (Albonetti, 1991; Kramer and Steffensmeier, 1993; Bridges and Steen, 1998). As Albonetti (1991: 247) explains, responses in patterns are developed by judges using profiling that link individual characteristics such as race, age or gender to expectations about criminal responsibility and dangerousness. Because minority defendants (as well as males and younger offenders) are perceived as more dangerous and criminally responsible, and because these traits are viewed as relatively stable for these offender groups (Albonetti, 2002), differential treatment of white and minority offenders is a logical result.
Theories of racial profiling differ; however, in their predictions about precisely when and under what circumstances decision makers are likely to invoke racial stereotypes. Some authors argue that the association of minority status with danger and criminality depends on other status characteristics associated with the threat, such as the offender's gender and age (Steffensmeier et al., 1998) or employment (Spohn and Holleran, 2000). Others argue that decision makers are more likely to invoke racial profiling in certain types of cases, such as when the appropriate sentence is ambiguous (Unnever and Hembroff, 1988) or when crimes are relatively non-serious (Spohn and Cederblom, 1991). Although these theories disagree about when the sentencing disparity is most likely, the underlying assumption about why it occurs is the same — racial stereotypes affect attributions of responsibility and perceptions of danger and threat. These arguments are similar in a second respect as well, which is that they implicitly assume an individualized sentencing process, in which the essential problem facing judges and other decision makers entails making predictions about individual offenders based on an assessment of incomplete information about that person.
In contrast to theories that have racial profiling as the primary causal mechanism for disparate sentencing outcomes, research, and theory on case processing present a view of the decision-making process in criminal courts that suggests that the primary issue in courtroom decision making is the efficient processing of a body of cases. In this tradition, decisions in individual cases must be understood in the context of the overall case flow (Emerson, 1983) and members’ use of schemes of shared categorization for the organization of their daily activities (Waegel, 1981, cf Emerson, 1983: 454). Research in this tradition suggests that stereotypes employed by court actors are different in important ways from what researchers examining the effects of race-ethnicity or other status characteristics typically assume.
One of the earliest and most influential pieces of research on case processing is Sudnow's work on "normal crimes" (1965). Snow argued that, rather than relying on broad cultural stereotypes, court workers develop local standards about what constitutes a normal crime (and therefore merits normal processing) based on the types of offenders and offenses they see on a regular basis. Normal crime categories not only describe the type of offender most likely to be involved in a particular type of crime but also convey attributions for crime and predictions for future behavior. This suggests that broad cultural stereotypes linking the propensity to criminality with race or ethnicity (or even to combinations of race-ethnicity, sex, and age) are too vague and imprecise to account for decision-making at the local level. Rather, the stereotypes that are most useful are complex offense-specific constellations of both offender characteristics and characteristics of the crime (Sudnow, 1965). Although it is likely they are influenced by global cultural stereotypes about race-ethnicity, the stereotypes most relevant to day-to-day case processing are those about specific types of cases, not particular kinds of people (Sudnow, 1965). To understand the operation of stereotypes, then, one must first understand stereotypes about crime from the perspective of courtroom actors themselves.
In the racial profiling approach, the researcher adopts the notion that the invocation of stereotypes will vary across cases — that race is more likely to be salient in certain cases and under certain circumstances. The case processing approach suggests that the meaning of race will vary depending on the type of case being decided, and, specifically, local court actors' understandings of what constitutes "normal crimes." The researcher, therefore, begins with the assertion that both the salience and the meaning of race in case processing are variable. The goal is to begin to develop a theoretical understanding of race disparities in sentencing by specifying some of the mechanisms affecting decision makers' attention to and understanding of race. The starting point is social psychological research specifying the mechanisms through which court decision makers invoke stereotypes (made up of constellations of attributes) in reaching sentencing decisions (Hill, Harris and Miller, 1985; Farrell and Holmes, 1991).
The theory that Hill and his colleagues (1985) developed asserts that decision makers rely on typescripts to help determine what type of individual they are working with and therefore make an appropriate sentencing decision. They argue that decision makers look for attributes that they associate with a particular type (a dangerous criminal, for example) and make decisions based on the presence or absence of the attribute set. Thus decision makers organize information by grouping together offense and offender characteristics. Their theory also, and significantly, suggests that typescripts differ depending on offender status characteristics, and indicate what kind of behavior can be expected from certain types of people. By referencing these typescripts, decision makers will expect involvement in certain kinds of crime from one group of offenders (types), while expecting another group not to engage in that type of crime (countertypes). A simple example is a typescript relating gender and violence. Women are expected to not engage in violence, wherein men, violence is expected (even if disapproved) behavior.
Farrell and Holmes (1991) present a series of specific predictions about how the kinds of attribute sets identified by Hill, Harris, and Miller operate. They begin by suggesting that one productive way to look at stereotypes — that is, composites of offender and offense characteristics — is to identify the attributes that compose the stereotype and to look at the number of dimensions in which a particular case differs from that type. In cases where offender and offense characteristics are entirely consistent with a particular stereotype, decision making will be routine (see also Sudnow, 1965).
In truly exceptional cases, however, cases that cannot be reconciled with stereotypes, Farrell and Holmes (1991: 529) suggest that, "legal decisions [will be] influenced by the meaning court actors attribute to the offense within the context of the offender's alternative ([that is] noncriminal) social statuses." The relative advantage or disadvantage of an offender (vis-à-vis the availability of alternatives to crime) will influence a decision maker's assessment of the offender's culpability. Thus, when offenders are socially disadvantaged and perceived as having few alternatives to crime, decision makers will see them as less blameworthy and therefore entitled to a more lenient sentence. Offenders who are socially advantaged, however, will be perceived as more blameworthy (because they had other choices available to them) and thus deserving of harsher penalties. Peterson and Hagan's (1984) finding that, among minor drug offenders, minorities were seen as victims and received favorable treatment compared with white offenders may be an example of this.
Research on the effects of race in criminal justice decision-making yields complicated and often inconsistent results. Some studies find direct effects of race on sentencing decisions, but many do not. There is also substantial evidence that race often interacts with other legal and extralegal factors. The researcher argues here for an approach to understanding the race-punishment problem premised on two different, but complementary, views of the sentencing process. First is the notion that, because they lack complete information about individual cases, decision makers from causal attributions for offending and assess dangerousness and culpability by referencing stereotypes (Albonetti, 1991; Steffensmeier et al., 1998). Second is the notion that decision makers' reference stereotypes about specific types of crime, and that their perceptions and treatment of individual cases derives from their ability to categorize cases in these terms (Sudnow, 1965; Farrell and Holmes, 1991).
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