Courts – and in particular the higher courts – enjoy a privileged position within the social imagination. If we were to take the representations of law dramas as truth, we might assume that an aggressive and emotionally charged trial before a jury, complete with double dealings, slippery ethics and a shock confession, is central to the criminal justice process. In the world of TV drama, each defendant and their victim gets their time in court so that their actions and claims may be interrogated and decried or absolved. The focus of traditional jurisprudence also implies that courts are the most significant element of the Western, adversarial system, a forum in which justice is publicly enacted. Perhaps not so surprisingly, sociologists have consistently argued against either of these positions. This chapter addresses some of the key contemporary issues that attach to the role and functioning of the courts and their personnel. We overview the role of courts, the processes of judging and its outcomes, the declining importance of juries, alternative methods of dispute resolution, and the relationship between the media and the courts. By the time we have reviewed these issues we will have substantially undermined our faith in this pillar of criminal justice system.
From a common-sense perspective, it is often assumed that dispute processing is the primary role of the court. In the instance of the criminal justice system, the dispute arises between the state and the accused. The issues are dealt with in court: each party ‘tells their story’, and on the basis of the evidence, either the judge or jury determines which version of events is true. But as Roger Cotterrell (1984: 222) points out, processing crimes within an adversarial framework is not the same as resolving a dispute. Resolution is achieved when both parties agree with an outcome, understand its logic, and recognise the norms that are imposed upon them. A process that creates a winner and loser on the basis of often arcane rules is unlikely to generate resolution. Instead, it may contribute to the escalation of disputes. It makes them public, demands careful definition – often over-simplification – extrapolation and de-contextualization of the wrongs that are claimed to have been committed, and removes much of the later experience from the control of the parties most directly involved. Given these processes, Cotterrell (ibid.: 223) concludes that the role of the courts is primarily ‘an assertion of normative order, a definition in terms of legal doctrine of the way a particular social situation or relationship is to be understood’. It is not a forum designed to let parties have their say, contributing directly to the outcome.
The importance of resolving disputes is also marginalized because many cases are never heard before the courts. Social scientists have pointed to a process of rationalization that detours cases. For example, Lawrence Friedman and Robert Percival (1976) suggest that while the role of courts may once have been adjudication, this has evolved to a contemporary emphasis on processing routine cases as efficiently as possible. This conclusion is supported when we consider the significance of guilty pleas and plea bargaining in contemporary criminal processes. The term ‘plea bargaining’ covers a diverse range of activities but they share in common the exchange of a guilty plea for the possibility of a lighter sentence or lesser or fewer charges. This may entail explicit negotiations but it may also involve informal expectations, such as an in-court guilty plea made with the expectation of a lighter sentence. Sharyn Roach Anleu (2000) lists a number of manifest motivations for plea bargaining:
- Strength of the prosecution case. Plea bargaining can be used when the prosecution believes that they will not obtain a conviction because their evidence is weak, but nonetheless believe that the offender is guilty (Adams, 1983).
- Substantive justice. Defence and prosecutors can argue the issues more fully and openly outside of the courtroom because they are unfettered by procedural rules (Mulcahy, 1994). This allows them to reach a fair and logical outcome. However, some argue the interests of the accused are not as important as the needs of long-term players in the system (for example, to free up time for more profitable work, or to reduce courts’ backlogs).
- Administrative pressures. Plea bargaining may reduce backlogs and contribute to a more efficient management of cases. There is some evidence to suggest that when plea bargaining is unavailable the number of contested cases rises (Church, 1976; Holmes et al., 1992; Padgett, 1990).
- Organizational relationships. People working in the criminal justice system know each other and over time create working understandings and relationships. They are concerned with the coordination of a number of interests, organizations, processes and outcomes. The interests of the accused may become a secondary focus to those of bureaucracy, politics and personal convenience.
The above list makes it clear that efficiency, perhaps more so than dispute resolution, matters in contemporary courts. Writing from a critical perspective, Pat O’Malley (1983) points out that when a person pleads guilty in the lower courts, the following occur at little or no expense to the powerful organizations and individuals who would otherwise be part of the trial process:
- Magistrates can argue that they fulfil demands that they be ‘tough on crime’ through generating high conviction rates, and guilty pleas allow them to more easily manage their case load.
- Claims that courts are serving justice are substantiated because a guilty plea stands as a marker of contrition.
- The police prosecutors more easily manage their high case load, achieve a high conviction rate with little effort and uncertainty, and avoid opening possible illegal police procedure to scrutiny.
- The defence lawyers enjoy a high turnover of cases with little preparation time and a minimum of uncertainty.
Although rather old, an early Australian study on the processing of pleas in a magistrate’s court in the state of Victoria provides some startling data to support the above conclusions. Lippman (1979: 109) calculated that the average time spent in the determination of guilt was 23.6 seconds per case; 11.1 seconds per charge. Even contested pleas were dealt with shockingly quickly, with an average of a little over 5 minutes per case. These results suggest that the processes of the adversarial system are, to put it mildly, truncated. More time is spent on sentencing than on the determination of guilt (Douglas, 1980; Lippman, 1979; O’Malley, 1983).
It is easy to argue that plea bargaining and the encouragement of guilty pleas are necessary on the common-sense grounds that they begin to counter the problems of lengthy and expensive trials and court backlogs. But from a sociological perspective, this is not ‘common sense’ so much as an indication that the needs of the court and criminal justice system are defined by the rational and administrative requirements of bureaucratic justice. The judging and processing of defendants are simplified and routinized and in so doing, the uncertainties facing all parties (the length of the trial, the viability of the case, the expected outcomes) are reduced (Blumberg, 1969; O’Malley, 1983: 128). But the edifice of simplicity and efficiency is often built on the presumption that defendants are guilty, not innocent (Blumberg, 1969; O’Malley, 1983). This reverses the central tenet of Western liberal ideals.
Friedman (1978) argues that these often almost automatic guilty pleas are linked to the rise of the police as a professional body (for a review of this historical process, see pp. 84–86). Once investigation was removed from the hands of enthusiastic amateurs and entrusted to experts, it was presumed that an adversarial trial was no longer strictly necessary because police had already identified the relevant issues. Justice became a technical-rational process. Rationalization hides many of the problems of police culture and practice. Pat O’Malley (1983: 135) points out that if charges were more rigorously defended and the evidence presented by the police challenged, mundane policing activities and the routine control of citizens would be vastly more difficult. Any informal and technically illegal components of policing would be systematically uncovered, and the means of gathering previously acceptable evidence would need to become more rigorous. Additionally, the legitimacy of the police would unravel, as their procedures are judged and found wanting. O’Malley also notes that the processes of rationalization are in place before a case goes to trial. Police have almost total control over the pre-trial process, in their discretion to pursue an incident, their interrogation of the suspect, and in the decision as to what charges will be laid (p. 83). O’Malley (ibid.: 136) concludes that as a result, ‘the determination of guilt is effectively and systematically transferred to the police in the vast majority of criminal prosecutions’. O’Malley’s point highlights that court and policing activities are intimately tied.
The efficient processing of defendants is also linked to the role of the prosecutor. As we have already noted, crimes are committed against the state, even where people suffer the consequences of the criminal act or omission. The state cannot itself prosecute anyone; the prosecutor becomes its representative and in so doing, the representative of citizens. In practice, prosecutorial decision-making, like that of the police, is invisible, and is not usually subject to political or judicial review. Even in the presence of guidelines and policy, prosecutors enjoy a great deal of discretion. According to Davis (1998: 20), this discretion can be used in a random and arbitrary fashion. It can have as much impact on inequalities in the criminal justice system as the decisions of police, juries or judges. The role of the prosecutor includes determining which charges will be pursued in court, what outcomes will be requested, and as we have already noted, whether or not someone goes to trial in the first place.
Ideologically, the role of prosecutor demands that they ‘consider whether a conviction is “consistent with the public interest” in conjunction with their personal sense of the defendant’s culpability for the crime’ (Levenson, 1999: 559). However, this expectation holds within it a series of difficult questions:
- What is the public interest?
- Where does the accused fit within the ‘public’?
- Where does a sense of the defendant’s culpability come from?
Davis (1998: 51) notes that the public interest is served when trials are fair, a broader definition than a simple expectation that any one accused person is found guilty. This position acknowledges the discrepancies in the application of law, at all levels of the criminal justice system. Theoretically, the interests of the defendant, as a member of society, are important in the trial process. These interests can conflict with those of society, a difficult tension for the prosecutor to reconcile. Davis (ibid.: 52) points out that the prosecutor’s duties include both the enforcement of criminal laws and the equitable treatment of victims and offenders in the criminal justice system – a responsibility owed to individuals and to society as a whole. The difficulties emerge ‘not in the conceptualisation of these responsibilities but in their implementation’ (ibid). In light of what we know about race, class or gender disparities in the criminal justice system, the prosecution of an individual case may include interests at odds with the broader ideals of the justice system. Further, as we have already noted, efficiency in the processing of cases is increasingly valued, and has itself been claimed to be in the public interest.
A sense of the accused’s culpability may also be problematic. Presumably, few prosecutors would be guided by explicitly discriminatory attitudes. Rather, inequalities may be the flow-on effects from police practice. We have already noted that police practices may be either latently or manifestly discriminatory, which may in turn affect the available evidence. Other considerations such as prior record or likelihood of conviction are also taken into account, again, with indirectly discriminatory outcomes. Or, the negotiations with the accused’s representation may affect perceptions of guilt. These perceptions and the ethical expectations of prosecutors intersect with the organizational drives and imperatives to efficiency to shape the ways in which an accused is moved into the adjudication process. It is clear that the resolution of disputes is not a significant factor in these decisions.
The expectation of dispute resolution and the central tenets of justice are again called into question through elements of the trial process. The relatively small proportion of people who come before the courts face a new set of problems: they cannot simply and easily tell their story. Courtroom interactions are ordered by the logic of the Western adversarial system. This incorporates formal rules of evidence, informal norms of professional conduct, and expectations of how witnesses, defendants and experts should present themselves. John Conley and William O’Barr (1990: 9) sum up the conclusions of many social scientists when they comment, ‘Official legal discourse … is far removed from the language of ordinary people. It tends to transform or simply ignore the discourse of the disputants whose problems are the law’s very reason for being.’ In the following pages we consider language and communication, and how they reflect the dynamics of power in the courtroom. This has become an increasingly significant area of academic research.
There are different ways to approach the play of language and interaction in the courtroom. Ethnomethodology is one major tradition. It recognises that people’s practices and language create the social order; they are not constrained by its preexistence. For example, Harold Garfinkel’s (1956) early discussion on criminal trial processes defined them as ‘degradation ceremonies’. He argued that interaction in the courtroom is guided by rules of communication and evidence. These are rituals designed to reconstruct the identity of the offender as deviant. To achieve this, actions must be represented and reinterpreted. A set of rules of interaction effectively ensures success in this venture. More commonly, social scientists work outside of ethnomethodology and have been influenced by critical theories such as Marxism, feminism and postmodernism. A focus on courtroom language provides an insight into broader processes and relations of law. Studies have emphasized the ways in which shared or contested realities are constructed through court processes and in particular, examination and cross-examination. Bryna Bogoch (1999a: 244) comments that legal discourse occurs in ‘a public rule-governed arena in which such issues as power and privilege, constraints and conflict, and norms and deviance are worked out through a range of discourse strategies including coercion and resistance, persuasion and negotiation, narrative and argument’. For example, witnesses are ‘silenced’, so that they cannot have their say on their own terms (Eades, 2000: 162). While studying how Australian Aboriginal witnesses communicated in court, Diana Eades became aware that they said very little. She found that they were rarely given the chance to speak, and their knowledge was almost never sought by either the defence or prosecution. Eades argues that the silencing of Aboriginal witnesses highlights racial relations because it reflects the lack of interest typically extended to Aboriginal perspectives. She concludes that both judges and lawyers are most likely to silence, ignore or stop witnesses when their answers relate to aspects of Aboriginal culture that they do not understand, and of which they cannot appreciate the relevance. Such principles of power are extended to other groups who take the stand (ibid.: 190).
Gregory Matoesian (1993, 1997) describes the ‘rhythms of domination’ in the William Kennedy Smith rape trial. This involved a claim that Kennedy Smith had sexually assaulted a woman after she willingly accompanied him to his home, a classic ‘date rape’ scenario. In this instance, Kennedy Smith was found to be not guilty. Through detailed analysis of the interactions between counsel and witnesses, Matoesian highlights the ways in which a charge of rape is pursued and defended through a series of discursive and interactional strategies rooted in dominant cultural understandings of sexual identity. He focuses on the way in which the defence strategies of cross-examination can be used to construct a series of ‘logical inconsistencies’ which are built upon assumptions about the ‘appropriate’ way for a woman to act towards men in whom she is/not sexually interested. He also presents the witnesses’ ultimately unsuccessful attempts to counter these. Matoesian (1997: 56) argues ‘legal realities such as inconsistency emerge not just from some logical, rational, or natural juxtaposition of contradictory issues of evidence but from an interaction between cultural ideologies and linguistic resources in the trial context’. As a result, a particular reality is created and patriarchy is reproduced. His perspective fits within more general feminist concerns over the construction of rape victims, as well as the gendering of the legal subject (see pp. 62–72).
Displays of power are most obvious in the question–answer format that is used to elicit information from witnesses on the stand. This reinforces the power discrepancies between the questioner and the witness because questions are actually demands. People must answer the question, and they must answer in response to that particular question, rather than presenting the evidence they believe to be important. Witnesses are not able to introduce new topics or lines of inquiry. As a result, lawyers have the freedom to present their perspective on the evidence so that significant issues might be misrepresented or left unexplored (Harris, 1984; Luchjenbroers, 1997). Asking questions is also a culturally specific way of obtaining information – in some cultures it is considered rude, invasive or threatening.
A number of studies have identified the more specific issue of the intersection of power and syntax (the structure of the phrase) (Danet and Bogoch, 1980; Harris, 1984; Matoesian, 1993). For example, a declaration with a question tagged on at the end, is very manipulative (‘You walked into the bar and hit him for no reason, isn’t that so?’). Questions demanding a ‘simple’ yes or no answer are also coercive because they do not allow the witness to develop a coherent story (Matoesian, 1993). ‘How’, ‘what’ and ‘why’ questions allow a little more scope for witnesses’ answers (Woodbury, 1984). These are more likely to be used by the defence counsel in their examination-in-chief to construct a narrative, which sounds more truthful and thus has added weight as evidence (Woodbury, 1984). Similarly, William O’Barr (1982) describes the powerless language of witnesses. He draws upon the work of Robin Lakoff (1975) who describes characteristics of women’s speech patterns. These include:
- hedges (sort of, like);
- intensifiers and empty adjectives (very, really);
- hesitations (umm, err);
- direct quotations (‘He said …’).
O’Barr (1982: 70) concludes that rather than specifically feminine speech forms, these patterns are characteristic of social powerlessness more generally. This may have material consequences for the outcome of a case. In an experiment, O’Barr found that mock jurors described those who spoke in a more powerful style as more believable, more convincing and more trustworthy (results that held for both male and female witnesses).
Conducting proceedings in English creates further difficulties for witnesses and defendants from a non-English-speaking background. This is exacerbated by the absence of any right to an interpreter. In the US, the lack of an interpreter has been argued to be a breach of the sixth Amendment guarantee of a right to face one’s accuser (O’Barr, 1982: 41); more generally it may conflict with the right to a fair trial. In Australia, for example, an interpreter is provided at the discretion of the judge. Michael Cooke (1995: 105) has pointed out that deciding if an interpreter is necessary can be more difficult than it first seems. A person may be able to answer direct and simple questions, but not necessarily follow the colloquialism, nuances, ‘legalese’ or rapid speech of the court proceedings. Cooke discusses a case involving an Australian Aboriginal witness. The presiding judge decided he did not need a translator on the basis of a series of questions to which the most grammatically complex answer was ‘I work for council plumbing’. Further, interpreters are only provided for the time an individual takes the stand. As a result, a defendant may experience almost the whole of his or her trial without actually understanding it, or getting only the ‘gist’ of what is being said. The limits indicate that the role of an interpreter is often first and foremost that of meeting the court’s interests, and not those of the witness – translation is used so that court personnel can extract the information they need, not so that the witness or defendant is cognisant of the complexities and outcomes of interactions.
On a similar theme, O’Barr (1982: 40–1) lists a series of assumptions that are made about the comprehension and language skills of English speakers in the courtroom. These include expectations such as:
- People who speak English can understand the courtroom proceedings and do not require an interpreter. This holds true irrespective cultural or ethnic backgrounds.
- When English speakers do not understand courtroom talk, counsel, and not the court, needs to take action.
- English-speaking jurors understand English-speaking witnesses.
- English-speaking jurors understand the judge’s instructions.
- Jurors have heard and understood the evidence presented, unless they explicitly state that they have not.
- Jurors do not need to directly ask questions of the witness.
- English-speaking jurors understand English-speaking witnesses.
Presumptions about language in the courts have very real consequences. Consider the comments of an indigenous Australian man:
As soon as Aboriginal people enter the courtroom, they feel different, they become afraid. I have seen old men (i.e. men who have power and stature in Aboriginal society) shaking with fear. When I ask them: ‘What is the matter?’, they say: ‘I don’t know what’s going on.’… People who are frightened of the court will often plead guilty, even when they are innocent, so as to get finished and out of court quickly. They can also plead guilty because they don’t know what’s going on. One old lady from Maryvale Station was picked up on a ‘drunk’ charge. She doesn’t drink at all. She went to the hotel looking for her daughter; she was worried about her. I said: ‘Why did you say “guilty”’? She said: ‘I didn’t understand what was happening, so I said the same as the woman in front of me’. (Lester, cited in Cooke, 1995: 101)
The preceding discussion might give the impression that witnesses have no power to shape the evidence they present. But of course even in rule-governed court contexts, people have some agency to counter the strategies of their examiners with their own. Anita Barry (1993) describes ‘narrative cooperativeness’, in which the witness and their examiner cooperate in the construction of a coherent narrative. This occurs during examination-in-chief, when the person in the stand and the lawyer are ‘on the same side’. In these instances, both parties share an interest in creating a logical account of the issues at hand, and work together to do so. The power discrepancies remain, but their effects are not as dire as in cross-examination, where the parties may be attempting to create alternative narratives. Gregory Mateosian (1997) notes that witnesses are not simple dupes in the examination process and do not respond to questions as though they were a neutral request for information. They recognise the implicit blame, disbelief and accusations of questions and can often identify the narrative counsel attempts to produce. This in turn makes it even more desirable for attorneys to dominate the process. Given this necessity, and in light of the formal rules and practices listed above, the possibilities for a substantial subversion of the processes are always available, but often limited.
As we have already discussed, the traditional legal perspective assumes that judges apply the law in a rational and objective manner (see pp. 66–68). They are guided by the law, supposedly filling in any gaps with rigorous legal reasoning. However, there is surprisingly little direct sociological commentary on the ways in which judges adjudicate the issues that come before them. Traditionally, judges have not explained their decisions to the public or sociologists, beyond formal and legalistic justifications and sentencing statements. Thus, we have little direct access to the mental and social processes of judging.
Concern over the judicial discretion and decision-making is most marked in the extensive collection of studies focusing on the aggregate effects of race and gender on the sentencing of defendants. After being found guilty in a court, the criminal is subject to sentencing. This is the process in which a penalty is applied for a given crime. Perhaps not surprisingly, this issue of discretion and imprecision in sentencing has caused considerable controversy (Zdenkowski, 2000). In light of our earlier critique of the law’s claims to equality, impartiality and its ethnocentrism (pp. 61–68), we might expect obvious and systematic instances of ethnic and gender discrimination in terms of sentence outcomes. However, the available evidence does not easily support this assumption.
Research shows sentencing to be a haphazard activity where judges have to balance up a number of factors. These include the gravity of the offence, the prior record of the offender, the range of penalties available by law, parity with other recent decisions and harm to the victim. These more factual matters are cross-cut by the various ideologies of punishment discussed in the next chapter: retribution, deterrence, reform. In pulling all these together, the judge may well have to rely on rules of thumb. It is noteworthy in this respect that factors influencing sentencing can contradict each other. An often cited example is the fact that an emphasis on retribution looks backwards to the offence, while one on deterrence might look to the future and focus more on crime reduction. The relative importance of such factors might also vary with swings in policy, ideology or the Zeitgeist. In the 1960s and 1970s theories about rehabilitation were dominant, but by the 1980s a conservative backlash saw older ideas about just desserts return to prominence.
In the USA in particular, sociologists have been involved in an ongoing attempt to see if ethnicity affects how a person is judged. From a common-sense point of view the presumption might easily be that race does make a difference. Cassia Spohn (2000: 433) quotes a series of figures that show that Black and Hispanic offenders are more likely to be sentenced to prison, and on average receive longer sentences. Similar data are associated with ethnic minorities in Britain, and Aborigines in Australia. These numbers are evidence of disparities, but not necessarily discrimination. Discrimination occurs when people are treated differently through extra-legal or inappropriate considerations. Thus the question inevitably arises: are ethnic minorities subject to racism or do disparities simply reflect the fact that they might be involved in particular types of crime?
The question of justifiable difference remains pertinent even in light of the sentencing guidelines that were introduced in part to limit judicial discretion and discriminatory outcomes (Tonry, 1996: 164; these issues are discussed further on pp. 136–139). In the Federal US context, there is still scope for judges to discount or add to sentences, according to prescribed circumstances. As we shall see, this leads to discrepancies between ethnic groups. Given that the most systematic consideration of these issues has occurred through studies of the US criminal justice system, the following discussion focuses on this context.
When sentencing guidelines were absent, the evidence of racial discrimination in sentencing seemed relatively straightforward. A series of studies from the 1950s to the 1970s concluded that black people were treated more harshly than white offenders. Unfortunately, these studies used unsophisticated statistical techniques. In particular, they failed to control for the seriousness of the crime committed and prior criminal records (Hagan, 1974). These are relevant, legal issues a judge must consider when sentencing an offender. When these were included in the equations, John Hagan concluded that race and the severity of the sentence can be linked in a statistically significant relationship, but the influence was only minor. His conclusions were supported by the later work of Gary Kleck (1981), who found that many disparities simply disappeared when analyses included a prior criminal record. Both writers argued that claims of racial discrimination were only supported in the South, and only in crimes that attracted the death penalty. They concluded that there is an absence of direct and systematic racial discrimination (cf. Hagan and Bumiller, 1983; Wilbanks, 1987).
In more recent years questions of direct discrimination have increasingly given way to studies of subtle and institutionalized racial disadvantage (Zatz, 1987: 70). Offenders from minority groups might suffer indirect discrimination (Spohn, 2000). This means that race (the independent variable) and sentencing outcomes (the dependent variable) are linked through a third factor. Differences might result from economic or social disparities that attach to race. For example, better lawyers or the ability to raise the bail money for pre-trial release have been found to contribute to more lenient sentences; Black and Hispanic offenders are more likely to come from a lower socio-economic group, and are less likely to be able to afford these privileges (Steffensmeier and Demuth, 2000, see also Holmes et al., 1996).
Indirect discrimination is also evident in the ways in which organizational priorities interact with racial and cultural differences. Ronald Everett and Barbara Nienstedt (1999) note that when a probation officer prepares a recommendation under the Federal sentencing guidelines, they must consider the extent to which a defendant accepts responsibility for their actions. This is often determined with reference to expressions of remorse. Remorse is also taken as an indicator that the offender is unlikely to offend again (Drass and Spencer, 1987: 281). Defendants might engage in behaviours that do not symbolize remorse or a proper respect for the courts’ authority, and be punished for it (Robinson et al., 1994; Steffensmeier and Demuth, 2000). Everett and Nienstedt (1999) also comment that remorse might not be accepted as genuine, and the presiding judge may reject the probation officers’ findings, often on the basis of interactions in the courtroom at the time of sentencing. These writers do not go far enough in considering the extent to which ethnic, gender and class differences might affect judges’ and probation officers’ interpretations of expressions of remorse and responsibility. In light of interactionist studies that describe the cultural differences in courtroom communication, it may be that demeanours that deviate from dominant norms, for example, those of minority youth cultures, may be read as disinterest, disrespect or guilt.
Increasingly, social scientists have been turning to the concept of contextual discrimination (Walker et al., 1999: 17) to explain disparities between groups. Contextual discrimination recognises that sometimes offenders are treated equally, but other times they are not. Outcomes may be affected by the intersection of the type of crime and the place of its commission, the age, gender and race of the offender, the race of the victim (Spohn, 2000: 434). This is termed an interaction effect. Recent studies provide support for interaction effects when data do not indicate any direct effects of race. For example, Samuel Walker, Cassia Spohn and Miriam DeLone (1999) report that Blacks as a group do not receive harsher sentences than whites but those without a job and living in Chicago receive longer sentences than their white counterparts, as do unemployed Hispanics. In a different study Darrell Steffensmeier and his colleagues (Steffensmeier et al., 1998) find that young, Black males suffered harsher sentences that any other combination of race, gender and age. Such studies suggest that race is a significant factor in sentencing outcomes, but its effects may be contingent.
Interaction effects remind us that we are not simply raced beings – our social identities are constituted by additional characteristics, which may be relevant when our actions are judged. The findings support a point we make several times in this book. It is less useful to look for ‘racism’ in the criminal justice system in terms of individual mental prejudice and more useful to appreciate the complex and unintended consequences of policies, procedures and practices as these impact upon diverse populations. This is not to deny that the criminal justice system is closely tied to issues of race politics but rather to suggest such connections need to be systematically theorized in a sustained, sociological way rather than opined away as simply ‘prejudice’ or ‘racism’ without a fuller detailed inquiry.
Unfortunately, efforts to consider why any disparities exist are not particularly impressive. Some writers argue that the more knowledge a person has, the more confident they feel in their decision. Judges are no different in that they, like everybody else, act with incomplete information. To minimize this and create a sense of consistency and certainty in their sentencing, judges draw upon a set of expectations and stereotypes. Steffensmeier et al. (1998) have developed this perspective in their ‘focal concerns theory’. They argue that sentencing decisions are guided by the offender’s culpability, the need to protect the community and the social costs of sentencing decisions. These priorities are pursued with only limited information and so judges work on the basis of racial, age and gender assumptions and stereotypes to ‘fill in the blanks’. Steffensmeier et al. describe this as ‘perceptual shorthand’ for a series of ‘objective’ reasoning processes. Not surprisingly, they argue that judges are harshest towards those who are assumed to be more deviant, dangerous or likely to re-offend. Their conclusions derive from their findings on the disadvantages faced by young, black male offenders but Spohn (2000) notes that this conclusion may be extended to other groups who are perceived to dangerously deviate from the norm. They suggest that discriminatory decisions are not informed by overt racism, but are justified by a covert racism of which individual judges are possibly not aware.
An alternative, the ‘liberation hypothesis’ (Kalven and Zeisel, 1966), argues that racial minorities attract harsher treatment for less serious crimes. When sentencing serious crimes, there is very little discretion available to judges: the law demands long terms of imprisonment. But when it comes to lesser offences, there is more leeway in determining the appropriate sentence. In these circumstances factors such as race or age might be taken into account, with discriminatory outcomes. Crawford, Chiricos and Kleck (1998) report data that provide some evidence of this. Racial differences in sentencing are most marked in less serious crimes, notably property and drug offences, compared to weapons and violent offences. Crawford et al. (ibid.: 506) argue that judicial decision-making is linked to the ‘racial threat’, which is associated in judicial minds with an ‘urban underclass [of] blacks and drugs’.
Other writers have linked racial differences in the sentencing of drug offenders to the effects of moral panics (see p. 17). They locate judicial discretion in the context of the ‘war on drugs’ that has disproportionately drawn Black and to a lesser extent Hispanic people into the criminal justice system. Further, these groups are more closely linked to drug crimes in media representations and the popular imagination. Sentencing judges, it has been suggested, are not immune to the effects of this discourse (Chiricos and DeLone, 1992; Jenkins, 1994; Tonry, 1995).
Alternatively, Jo Dixon (1995) argues from an organizational perspective. We have already noted the desire to ensure the justice process runs as smoothly and efficiently as possible. To do this, offenders are encouraged to plead guilty or cooperate with prosecutors, in exchange for decreased sentences (pp. 122–123). This encouragement is extended to white people, more so than African Americans. The rationality of sentencing is in part based on organizational policy, but the application of this policy is informed by discriminatory practices. Again, race is not a simple input variable. Its effects will alter according to the crime and the organizational context and the meanings attached by the judge (Kautt and Spohn, 2002).
Before we leave this discussion, it is useful to overview the limitations of the body of work as a whole. In the US context the following issues make it difficult to draw any final conclusions:
- Jurisdictional differences. Federal and State criminal justice systems have authority over different crimes, and are subject to different sentencing guidelines. Further, the cultures and stresses of the jurisdictions might create divergent sentencing priorities and judicial attitudes. As a result, we must be careful when generalizing results from one context to another.
- Methodological problems. Concern over discrimination in sentencing has often out-paced the development of statistical methods that can adequately measure the effects of race. Earlier studies in particular failed to account for all valid factors.
- Contradictory findings. The previous discussion makes it abundantly clear that we have not yet developed a set of coherent and complementary findings. It can seem that each finding of discrimination is countered by another study concluding that sentencing decisions are race neutral.
- Modest effects of race. Some commentators have argued that any relationship, even if not statistically significant, is nonetheless of concern but others claim that the ‘take home message’ is an absence of systematic and widespread discrimination.
- Quantitative methodology. The methods identify sentencing patterns but they cannot generate information on the process of judging. Many studies are in fact only tangentially investigating the reasoning processes that lead to discrimination. We have little information on just how judges interpret characteristics of the offenders.
- Poor theorization. We have a great deal of data on what matters and what does not, but this has been generated at the expense of coherent and conceptually sophisticated explanations of why some groups are – or are not – treated more harshly than others.
- Contradictory findings. The previous discussion makes it abundantly clear that we have not yet developed a set of coherent and complementary findings. It can seem that each finding of discrimination is countered by another study concluding that sentencing decisions are race neutral.
Overall, the data on this question point to an absence of direct and deliberate discrimination on the part of criminal justice personnel generally and judges, in particular. Those who are disadvantaged in society generally are more likely to become caught up in the criminal justice system and at each step their disadvantage is compounded. These conclusions present a massive challenge to those who wish to address bias and discrimination in the courts. Success cannot come from the appointment of ‘better’ judges, judicial education or sentencing guidelines. It will be encouraged through the dismantling of entrenched processes and thinking in a more structural and sociological way about the often unintended outcomes of policies when these are played out in the real world.
Just as there has been a presumption that some ethnic groups are systematically disadvantaged, feminist scholars have also been concerned that judges treat women differently. Some studies have found no statistically significant differences in the treatment of male and female defendants. Contradicting these findings, other researchers have concluded that women are treated more leniently in sentencing. For example John Hagan, Ilene Nagel and Celesta Albonetti (1980) found that gender affects the length of the prison term in white-collar cases, so that women receive shorter imprisonment terms than do men. Simon and Landis cite a 1988 qualitative study where 11 of the 12 judges interviewed acknowledged that they treated female offenders more leniently than male offenders. It has been suggested that women with families received shorter sentences because court officials do not want to punish children by taking their mother away from them (Daly, 1989). Probation officers are more likely to presume that women will be ‘scared straight’. Officials believe that the threat of prison is more frightening for women than for men and so criminal women do not need to be penalized in the same way or to the same degree as men (ibid.).
Other researchers have focused on the differences between women. They argue that sentencing decisions are informed by the ways in which women conform to the cultural ideal of womanhood. For example, David Farrington and Allison Morris (1983) reported that marital status makes a difference to the sentences imposed upon women but has no effect on the severity of a man’s sentences. Kathleen Daly (1989) concluded that family ties were significant for both men and women, but women were treated even more leniently than familied men. In the same vein, Pat Carlen (1983) found that Scottish authorities assumed that a husband would be likely to keep his wife ‘in line’, so that imprisonment was unnecessary. Carlen also argued that being a ‘good mother’ could lead to a non-custodial sentence, on the grounds that children should not suffer by the absence of their mum. Jailing women who do not fit the ideal – those whose houses were untidy, or who are deemed to be insufficiently nurturing towards their children, or whose actions might lead to an unsavoury home life – was not seen by officials to have such negative effects on children. The types of crime might also be significant: Matthew Zingraff and Randall Thomson (1984) discovered that women who assault or abandon their children received harsher sentences than men in the same circumstances.
These studies indicate that gender is important in shaping how judges weigh the effects of their sentencing decisions. They suggest that if an offender can be presented as a ‘good woman’, she might receive a more lenient sentence. This is sometimes said to be the result of chivalry. Ilene Nagel and Barry Johnson (1994) note that this term is not rigorously defined, but basically refers to paternalism and protectiveness towards women. These attitudes are rooted in stereotypes that represent women as weak and in need of care (as opposed to the harsh punishment of prison), and submissive, a characteristic which renders them less responsible for their crimes. But as the studies above highlight, only some women – those who do not deviate from dominant constructions of womanhood – are seen to be in need of protection and guidance, rather than punishment.
We might conclude that chivalry and paternalism are not particularly worrying if they result in more lenient sentences for women who have been marginalized in legal discourse. But Elizabeth Moulds (1980) notes that these attitudes assume a power relationship similar to that of a parent and a child. Women are not children – they are capable of rational decisions, calculating risks, knowing what is right and what is wrong and acting accordingly. To presume otherwise echoes traditional constructions of womanhood that have denied opportunities to women in a number of spheres. Further, it is a little problematic to argue for equality, save in those circumstances in which women benefit from discriminatory attitudes.
Such matters aside, there is a flipside to chivalry. The Madonna–whore dichotomy has represented women as either perfect, or sinful and beyond redemption. The duality is rooted in the Judaeo-Christian tradition, with its emphasis on controlling and defining women’s sexuality. In the courts it is translated into a secular form. Women are expected to be good, asexual, passive and obedient. Those who are not are whores – evil, sexual, disobedient and aggressive. This reasoning is exemplified in the comments of Cesare Lombroso, an early ‘criminologist’ who was guided by nineteenth-century scientific pretensions:
Her normal sister is kept within the paths of virtue by many causes such as maternity, piety and weakness, and when these counter-influences fail, and a woman commits a crime, we may conclude that her wickedness must have been enormous before it could triumph over so many obstacles. (Lombroso and Ferrero, 1895)
These cultural expectations are still evident, but they play out in complex ways. On the one hand, women who commit crime but otherwise conform to the ideals of womanhood, may be treated more leniently than men in the same criminal context. On the other hand, they may be seen to be doubly deviant, in that they have (a) broken the law; and (b) breached the norms of femininity. This will be particularly relevant in crimes such as assault or murder/homicide, where the women’s destructiveness directly rebuts expectations of nurturance. As a result, women may be punished more harshly than men who commit similar crimes. Prostitution raises the same dangers: the ideals of women’s passive sexuality are undone by the explicitly sexual nature of the crime. Traditionally, only women’s involvement in sex work was criminalized. Today, clients are also potentially subject to arrest, but are far less likely to actually suffer this indignity. Again, there is a suggestion that women’s behaviour is not judged solely with reference to the criminal law – gender ideologies can also be important.
Sometimes, it can be difficult to decide if women are being punished or protected. This is especially evident in status offences. The term refers to behaviour that is not illegal for adults but is considered to be inappropriate when undertaken by children. The behaviours are usually defined in terms of ‘incorrigibility’ or placing children ‘at risk’. Juveniles of both sexes can be imprisoned for these types of actions, but studies have shown that a disproportionate number of girls have been charged and found to be guilty, receiving harsher sentences than boys in a similar position. These outcomes stand despite evidence that young males are involved in crime at a far higher rate than young women. Status offences are often used to limit female sexuality and punish ‘unfeminine’ behaviour (Allen, 1988; Chesney-Lind, 1974; Naffine, 1986). These are not as common as they once were, but they remind us that being a woman in the criminal justice system cannot be simplistically equated to either favourable or negative outcomes.
As well as being ‘bad’, criminal women have been defined as ‘mad’. Their crimes are sometimes represented in psychiatric or psychological terms so that a woman is defined as mentally ill, rather than a rational actor. In so doing, the ideals of femininity are reinforced. Actions that might otherwise undermine our cultural expectations of a passive and safe womanhood are neutralized. The offender is understood to be sick and therefore exceptional; her actions only reflect the problems of an individual. For example: