Cultural Considerations
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Age.pdf
Age, Racial/Ethnic Minority Status, Gender and Misdemeanor Sentencing
Ed A. Mufioz Adrienne B. Freng
ABSTRACT. Researchers have increasingly examined interactions be- tween various combinations of legal and extralegal variables to explain disparities in felony criminal sentencing decisions. This paper focuses on ihc combined effects of extralegal variables such as age, racial/ethnie mi- nority status, and gender have on misdemeanor criminal sentencing. Re- sults indicate that adull. White males experienced the harshest fine amounts, while young, young adult, and adult racial/ethnic minority mules had a higher likelihood of receiving other punitive senlenees in addition to, or rather than just a fine. The results provide support for eompeting theoretieal approaches of contextual discrimination and fo- ca I concerns. The implications for raeial/ethnie bias in lower court deci- sicms are discussed, doi: I0.I300/J222v05n{)4_02 {Article copies available for af^efrom The Haworth Document Delivery Service: l-800-HAWORTH. E-mail address: <[email protected]> Website: <http:/AvwwMawortiiPress. com> © 2007 by The Haworth Press. All rights reserved.}
Dr. Ed A. Mufioz is currenlly Assistant Professor of Criminal Justice and Director of ChicaiWo Studies at the University of Wyoming, Laramie, WY.
Dr. Adrienne B. Freng is currently Assistant Professor in the Department of Crimi- nal Justic;e at the University of Wyoming, Laramie, WY.
Address correspondence to: Ed A. Mufioz, University of Wyoming, 105 Ross Hal!, Laramie, WY 82071 fE-mail: [email protected]).
The authors would like to thank the Nebraska Mexican American Commission for the use of their 1993 Sentencing Research Project Data.
Joumal of Ethniciiy in Criminal Justice, Vol. 5(4) 2007 Available online al http://jeci.haworthpress.com
© 2007 by The Haworth Press. All rights reserved. doi:10.1300/J222v05n04 02 29
30 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
KEYWORDS. Latinos, Native Americans, race, ethnicity, misdemean- ors, discrimination
Refined theoretical approaches and sophisticated methodological ad- vatices have increasingly shown that an individual's racial/ethnic status in and of itself may not be as important in the adjudication of criminal behavior as once believed. Recent reviews of criminal sentencing litera- ture demonstrate the complex interplay of racial/ethnic status with other legal and extralegal variables that differentially and uniquely impact the administration of justice (Spohn, 2000; Zatz, 2000). There is little doubt that legal variables, such as number and severity of offenses and/or prior record, are the primary determinants in felony sentencing deci- sions (Spohn, 2000). However, sentencing disparity can be accounted for by subtle and indirect, yet systematic racial/ethnic discrimination in the criminal justice system (Zatz, 2000).
Scholars have pointed to the concepts of "contextual discrimination" and "focal concerns" to help untangle perceived and actual inconsisten- cies in racial/ethnic sentencing disparities. Contextual discrimination allows for the possibility that more severe punishment can be experi- enced by either majority or minority racial/ethnic groups and is de- pendent upon a number of factors including but not limited to region, jurisdictional levels, types of crime, and distinctive offender-victim relationships (Spohn & DeLone, 2000). These primarily structural factors influence the more social psychological focal concerns of judi- cial and other criminal justice decision making processes revolving around the determination of blameworthiness, the protection of the community, and the consideration of practical constraints and conse- quences (Steffensmeier & Demuth, 2001, 2000). When information is limited, focal concerns may be affected by criminal stereotypes that of- tentimes are based on individual characteristics of the defendant such as age, racial/ethnic status, and/or gender (Spohn & Holleran, 2000; Steffensmeier, Ulmer, & Kramer, 1998).
Considering that misdemeanors are the most common types of of- fenses for which people are detained, interrogated, arrested, and con- victed for (Feeley, 1979; Nelson, 1994), it is surprising that the under- examination of contextual discrimination and focal concerns theoretical approaches in misdemeanor sentencing outcomes exists. The "libera- tion hypothesis" (Kalven&Zeisel, 1966; Smith &Damphousse, 1998; Spohn & Cederblom, 1991; Spohn & DeLone, 2000), for example, con- tends that as crime severity increases, legal discretion decreases due to
Ed A. Mufioz and Adrienne B. Freng 31
relatively more concrete and unambiguous criminal evidence in com- parison to lesser crimes (i.e., physical and/or economic injury vs. vic- timless). In addition, the adjudication of misdemeanor criminal codes poses ar increased risk for differential outcomes as lower criminal court officials have fewer restrictions on decision-making (Nelson, 1994). Rather than basing decisions on a "calculable set of rules," such as sen- tencing guidelines, lower court prosecutors, defense attorneys, and judges more often rely upon discretionary judgment in the adjudication of misdemeanor criminal offenses (Feeley, 1979).
This coupled with increasing evidence suggesting that racial/ethnic discrimination may be confined to less serious crimes (Crawford, Chiricos, & Kleck, 1998; Munoz & Sapp, 2003; Spohn & DeLone, 2(K)0) \varrants more analyses of racial/ethnic discrimination in misde- tneanor sentencing decisions. Equally important is weighing the impli- cations of biased misdemeanor criminal justice on felony criminal justice, especially when misdemeanors are factored into varied sentenc- ing guidelines for felonies in the form of prior arrests, convictions, and/or sentences (Holleran & Spohn, 2004; Johnson, 2003; Lubitz & Ross, 21)01; Spohn, 2000; Ulmer & Johnson, 2004; Zatz, 2000).
COSTEXTUAUZING CRIMINAL JUSTICE OFFICIALS' FOCAL CONCERNS
More and more, judicial decision-making has been found to center around three focal concerns-blame worthiness, protection of the com- munity, and practical constraints and consequences (Steffensmeier & Demuth, 2001, 2000; Steffensmeier, Ulmer, & Kramer, 1998). Blame- worthiness is associated with the view that the punishment fit the crime and corresponds with sentencing research indicating that the type and severity of the criminal offense are the primary determinants in sentenc- ing decisions. Other factors that can congeal or mitigate perceptions of blameworthiness are offenders' prior offending and convictions, prior victimization at the hand of others, and offenders' roles in criminal activities.
Attributionally related, but conceptually discrete, the protection of the community focuses on the need for incapacitation of convicted criminals and deterrence of possible offenders. Rational court actors are forced :o make predictions about an offender's future positive or nega- tive behavior based on the nature and scope of a particular crime, as well as legal (i.e., prior record), and sometimes, extralega! factors (i.e., fam-
32 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
ily history) (Albonetti, 1991; Steffensmeier, Ulmer, & Kramer, 1998). Incarceration may be deemed the most effective punishment for a low-level drug offense by a youthful offender, especially if the offender is known for his/her truant school behavior and whose family has a criminal history. Incarceration certainly looms larger if previous at- tempts at rehabilitation (i.e., alternative schooling, substance use counseling) have been deemed ineffective.
Organizational and individual practical constraints and consequences also impact sentencing dispositions. Court efficiency and incarceration resources are considered, in addition to an offender's ability to do time (i.e., special needs for the aged or disabled). Court aetors are conscious as well, of local politieal conditions and community norms that eould impact their continued public employment within the criminal justice system (Dixon, 1995; Eisenstein, Flemming, & Nardulli, 1988; Myers & Talarico, 1987; Steffensmeier, Ulmer, & Kramer, 1998). A White judge may not be as likely to sentence minorities to the full extent of the law if his/her jurisdiction is comprised disproportionately of non-White voting citizens.
This complex interplay of judicial foeal concerns is complicated by a high degree of uncertainty as judges do not always have the necessary information at hand to make unbiased sentencing decisions. Thus, judges and other criminal justice actors tend to rely on perceptual short- hand that is oftentimes tinged by age, race/ethnicity, and gender attribu- tions (Farrell & Holmes, 1991; Steffensmeier, Ulmer, & Kramer, 1998). The interaction of these extralegal variables, as well as their in- teraction with legal variables, allows for the manifestation of contextual discrimination, a type of indirect discrimination that oecurs in certain circumstances or situations ("e.g., certain regions, particular crimes, special victim-offender relationships") (Spohn, 2000; Walker, Spohn, & DeLone, 2000: p. 17). While much research indicates that racial/eth- nie minorities fall victim to disparity in the criminal justiee system based on certain variables, contextual discrimination is also supported by research showing that in particular contexts. Whites experience harsher sentencing for the conviction of criminal offenses (Klein, Petersilia, & Turner, 1990; Munoz & Sapp, 2003; Myers, 1987; Myers & Talarieo, 1987, 1986; Walsh, 1991, 1987). Thus, it cannot be as- sumed that non-Whites will always be the recipients of biased judicial discretion.
To further illustrate, a "symbolic assailant" thesis posits that net of other relevant factors, non-Whites are at increased risk for involvement in the criminal justice system due to their historical categorization by
Ed A. MuHoz and Adrienne B. Freng 33
law enforcement officials as individuals highly capable of wrongdoing (Mann, 1993; Skolnick, 1966). Socially constructed images of non- White male and female criminality have worked to criminalize non- Whites, regardless of any observed criminal behavior, placing them at a higher risk for interrogation and/or arrest (Mann & Zatz, 1998). This is the basis for the current clash on law enforcement's alleged racial pro- filing piMicies (Bass, 2001; Leitzel, 2001; Taylor & Whitney, 1999; Toby, 2000) that could begin the cumulative disadvantage that ra- cial/ethnic minorities face when drawn into the criminal justice system. Racial/ethnic bias at the law enforcement level carries the possibility of filtering on through criminal processing and on to court dispositions (Spohn, 1995; Zatz, 1987).
On the other hand. Whites are most likely portrayed as the prime vic- tims of non-White criminality. Understandably, images of White crimi- nality can work as a cumulative advantage in that they frequently provide Whites with charitable discretion from police officers, prose- cuting attorneys, judges and juries. Even when Whites are found to be typical offenders for particular crimes (i.e., corporate crime, serial kill- ings), race is seldom discussed as a characteristic for the observed of- fending pattern. In most instances, typical White offenses are treated as anomalies with perpetrators differentiated as victims of some personal misfortune and/or distress (Mann & Zatz, 1998).
Even so, there are particular contexts when White criminal offenders may be most likely to receive harsh punishment. This tends to occur in locations where the non-White population is relatively large, but has limited social, economic, and political power. As Meyers and Talarieo (1987) explain, there may be vestiges of paternalistic attitudes towards non-White criminality that foster sentence leniency, especially when victims are themselves non-White. Conversely, there may be less toler- ance fo:- White criminality when victims are White. Racially/ethnically segregated communities also reduce perceived and actual racial/ethnic econon-iic competition, and thus reduce the possible overzealous social control of non-White minority populations. Politically, elected judges may be perceptive to the potential voting power a large non-White pop- ulation could organize if it perceives and experiences criminal injustice (Myers & Talarieo, 1987). This complex interplay of regional structural characteristics, victim/offender characteristics, and the nature and scope of the criminal offense supply the basis for focal concerns in crimind justice decision-making and allow for the manifestation of contextual discrimination in the form of sentencing disparities within and between particular majority and minority social groupings.
34 JOURNA L OF ETHNICITY IN CRIMINAL JUSTICE
Equally important is the role that age and gender play with respect to criminal activity. Research does show that gender differences in offend- ing do exist-females are arrested in substantially higher proportions than their male counterparts for petty larceny offenses-yet some argue that this is probably an indication of the relatively precarious economic situation in which females fmd themselves in comparison to males (Belknap, 1996;Chesney-Lind, 1997). Gender differences in offending also could result from the negative effects of socially constructed no- tions of female criminality on the enforcement and adjudication of criminal codes (Mann & Zatz, 1998). Nevertheless, years of crimino- logical research have left little doubt that criminal behavior is most prevalent among young males (Belknap, 1996; Chesney-Lind, 1997; Elliott, i994;Hindelang, 1978).
Not as clear from criminological research is if non-Whites participate in criminal behavior at a higher rate than their White counterparts. Some researchers argue that non-Whites' disproportionate representa- tion in official criminal statistics is due to their higher participation in more serious criminal behavior (Blumstein, 1994, 1982; Hindelang 1978; Hindelang, Hirschi, & Weis, 1979; Wilbanks, 1987). Compari- sons of self-report data with official crime data, however, dispute this explanation by indicating no significant racial/ethnic differences in lev- els of criminal behavior (Elliott 1994; Elliott, Huizinga, & Morse 1986; Hawkins, Laub, & Lauritsen, 1998; Hindelang, 1978; Huizinga & Elliott, 1987). Despite this mixed and inconclusive evidence young, non-White males and females disproportionately populate incarceration facilities and there is evidence that this may be attributable in part to sentencing bias based on negative criminal perceptions of young, non-White males and females (Farrell & Holmes, 1991; Spohn & HoUeran, 2000; Steffensmeier, Ulmer, & Kramer, 1998).
In particular, evidence shows that race/ethnicity is a particularly sig- nificant criminal justice determinant when taking into account the over- abundance and unpredictability of particular law enforcement and sentencing jurisdictions, the diverse aspects of criminal justice deci- sion-making, and the appropriate disaggregation of criminal justice data (Crutchfield, Bridges, & Pitchford, 1994; Hawkins & Hardy, 1989; Myers & Talarieo, 1987; Spohn, 2000; Spohn & DeLone, 2000; Zatz, 2000). Hence, the impact of judicial focal concerns for contextual dis- crimination can be better scrutinized in social contexts where non- White enclaves are comparatively large and rapidly increasing, which could pose an apparent threat to the White majority and influence the rigid social control of minority populations (Bridges & Crutchfield,
Ed A. Munoz and Adrienne B. Freng 35
1988; Bridges, Crutchfield, & Simpson, 1987; Brownsberger, 2000; Hawkins & Hardy, 1989).
SETTING FOR THE STUDY
The demographic phenomenon referred to as "The Browning of America" (Johnson, Farrell, & Guinn, 1997; Morales, 2001) is occur- ring at unprecedented levels in areas not typically recognized for their racial/ethnic minority populations. The Midwest, for example, ranked second in total regional population according to 20(X) U.S. census data, yet had the least proportional racial/ethnic diversity with Whites ac- countinj^ for 85% of its total regional population (Grieco, 2001a). Among non-White racial groups. Blacks comprise 10.6%, Native Americans comprise 1.1%, and Asians, Native Hawaiians, and Pacific Islanders comprise 2.3% of the Midwestern total population (Barnes & Bennett, 2002; Grieco, 2001b; McKinnon, 2001; Ogunwole, 2002). Within the different racial groupings, a total of 4.9% identified as being Latino (Guzman, 2001).
Intenjsting, however, is that the Midwest's ten-year proportional in- creases for Whites (5.2%) and Blacks (19.6%) were minimal in compar- ison to large proportional increases for Native Americans (111.5%), Asians, Native Hawaiians, and Pacific Islanders (88.6%), and Latinos (81.0%) (Barnes & Bennett, 2002; Grieco, 2001a, 2001b; Guzman, 2001; McKinnon, 2001; Ogunwole, 2002). The increasing growth of racial/eth- nic diversity within the Midwest region has been especially pronounced for particular states and counties. Within Nebraska, for example, twelve out of ninety-three counties had a larger 10-year increase in their diver- sity index (i.e., the probability that two randomly selected people would differ by race/ethnicity) compared with the average for all U.S. counties (Brewer & Suchan, 2001). Much of the increase in Nebraska's diversity index can be explained by a large increase in its Latino population (155.4%) and to a lesser extent an increase in its Asian, Hawaiian, and Pacific Islander population (83.3%; U.S. Bureau of the Census, 2001, 2000).
The three counties selected for this study, Madison, Dakota, and Scottsbluff, typify this population shift. Census data for 1990 in Table 1 indicate: that Whites were the overwhelming majority in Nebraska and for selected counties. Latinos are the largest non-White minority group in Dakota (6.1%), Madison (1.7%), and Scottsbluff (14.5%) counties. By 2(X)0, Latinos proportionally increased three and one-half times to
S' (S ijo M rs O o; — <q — O\̂ —• 5 f-1 I t . - . * oc
Ed A. Mufioz and Adrienne B. Freng 37
22.6% cif the Dakota County population, and over four fold to 8.6% of the Madison County population. Latinos in Scottsbluff County in- creased only by two-fifths to 17.2% in 20(K). Increases for other non-White racial ethnic groups were smaller and more variable by county. Of particular note is the growth of the Asian population in Da- kota County, which increased by almost four-fifths from 2.1% in 1990 to 3.1% in 2000 (U.S. Bureau of the Census, 2001, 2000).
To further explain, within the past two decades Madison and Dakota Counties have confronted a restructuring of economic opportunities within their county borders that is similar to other Midwestern non-met- ropolitan counties experiencing extraordinary increases in their ra- cial/ethnic minority populations. More specifically, meatpacking corporations have moved their production sites from urban to rural ar- eas to be closer to their product and to move away from high-paying un- ion labor. Needless to say, the recruitment of labor from a small, relatively elderly population for lowered economic incentives has proved difficult for meatpacking corporations. To compensate for labor shortages, meatpackers formally and informally recruited Southeast Asian and Latino immigrants to fill their needs. While some migrants were male sojourners, the tendency has been for family settlement, which has given rise to Mexican and Southeast Asian community development amidst previously homogenous Anglo communities (Stull, Broadway, & Griffith, 1995).
All in all, non-White county proportional increases were compara- tively Uirger to overall net changes in respective county population to- tals as seen in Table 1. Moreover, non-Whites more than doubled proportionately in the Tri-County study population from 6.3% in 1990 to 12.9% in 20(X). Whites, in contrast, decreased proportionately from 93.7% in 1990 to 87.1 % in 2000, even though they experienced a slight numerical increase from 1990 to 2000 (U.S. Bureau of the Census, 2001, 2000). Large, rapid increases in the non-White population due to immignition have been found to increase racist and xenophobic fears that often spiral into moral panics, wherein immigrants are blamed for a variety of social ills, including criminal activity (Hyun Sook, 1997; Johnson, Farrell, & Guinn, 1997). Without a doubt, this current ra- cial/ethaic shift in the U.S. population (Grieco & Cassidy, 2(X)1) is pro- ducing a growing interest in the criminal sentencing experience of racial/eihnic groups other than Blacks and Whites (Demuth, 2003; Everett & Wojtkiewicz, 2002; Hagan & Palloni, 1999; HoUeran & Spohn, 2004; Johnson, 2003; Munoz & McMorris, 2002; Steffensmeier & Demuth, 2001, 2000; Ulmer & Johnson, 2004).
38 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
RESEARCH QUESTIONS
This study examines the nature and scope of contextual discrimina- tion in three Nebraska non-metropolitan counties where non-White populations are comparatively large and rapidly increasing, a factor which could impact judicial focal concerns. Based on the preceding dis- cussion, we examine the following hypotheses:
HI: Racial/ethnic misdemeanor sentencing disparity will be present, but variable in nature and scope for both Whites and non-Whites.
H2: Male offenders will be sentenced more severely than female offenders and younger offenders will be sentenced more severely than older offenders.
H3: The combination of age, racial/ethnic status, and gender will have the most negative impact on sentencing outcomes for youn- ger, non-White males and females.
H4: Legal variables will have a greater impact on sentencing out- comes than extralegal variables.
H5: Offenders from counties (Dakota and Madison) with a high degree of racial/ethnic change will receive harsher sentencing than those with a low degree of racial/ethnic change (Scottsbluff).
DATA AND METHODS
Sample
The study utilized secondary data collected from misdemeanor crim- inal cases filed in Dakota, Scottsbiuff, and Madison counties in Ne- braska during the 1992 calendar year. The data was collected in the summer of 1993 by a private consulting firm under the auspices of the Nebraska Mexican American Commission, which was acting upon their constituents' protest regarding perceived law enforcement mis- treatment in several areas of the state. The existing data set was made readily available for analysis to the lead author who was employed by the consulting firm at the time of data collection. To our knowledge, we are not aware of another available misdemeanor data set with more re-
Ed A. Mufioz and Adrienne B. Freng 39
cent data. The project collected court data from the three non-metropoli- tan Nebi-aska counties mentioned above on the basis of their historically large and/or rapidly growing Latino populations. In addition, cases in- volving Native Americans were included in the racial/ethnic minority category based on their historical and demographic similarities to the Latino populace in Nebraska. Thus, the analysis compared disparities between White and Latino and Native American combined male and female misdemeanants. This left a total of 8,289 cases for analysis.
Measures
Descriptive statistics for the data are shown in Table 2. Predictably, males (71.5%) accounted for the overwhelming majority of misde- meanor cases compared to females (27.6%). For a small number of cases (.9%), gender of the offender was not recorded. To address this is- sue, male was substituted for the gender of those missing cases. Addi- tionally, a dummy variable was created to control for this missing data in the following analyses (1 if missing, 0 if not).
Latinos and Native Americans were collapsed into one racial/ethnic category for analytic convenience that is grounded in theoretical ratio- nale. Theoretically, Latino and Native American populations have in- digenous origins in the Americas (Menchaca, 2001) and continue to experience racial and ethnic discrimination on many societal fronts (Healej, 2003). Also, both Latinos and Native Americans have been more similarly impacted by Anglo (internal) colonization that often- times relied on the assistance of criminal justice agents to accomplish the goals of securing land and cheap labor (Rosales, 1999; Blauner, 1994, 1972; Mirande, 1987; Barrera, 1979). This particularly has been the case: for Latinos and Native Americans in rural Nebraska (Becher, 1999; Hardhoff, 1998; Sayer, 1997; Vald^s, 1990). Additionally, the nature and scope of Latino and Native American male and female crimi- nal stereotypes (i.e., distrustful, violent, bloodthirsty, thieving, gang- banging substance abusers; see Bender, 2003; Mann & Zatz, 1998) and patterns of offending and conviction are generally comparable (i.e., property, assault, drugs/alcohol; see Munoz & McMorris, 2002; Mufioz, McMorris, & DeLisi, 2004), and differ from other racial/ethnic minority groups (see Walker, Spohn, & DeLone, 2(X)7; Mann & Zatz, 1998).
The smaller number of Native American misdemeanants did not al- low for comparisons of combined age, race/ethnicity, and gender ef- fects between Whites, Latinos, and Native Americans separately. Thus,
40 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
TABLE 2. Descriptive Statistics
variable Gender
Male Female Missing Gender
White Racial/ethnic minority
Age Youth 11-24 Young Adult 25-29 Adult 30-91 Missing Age
Nebraska County Dakota ScottsblufF Madison
Total Offenses (range = 1 to 5)
Offense Type Traffic Assault Resisting Arrest/Distiirbing Peace Drugs/Alcohol Property Other Offenses
Sentence Fine Amount (range $0 to $210) Fine Only Fine and/or Something Else
Mean or % ("SDl
71.5% 27.6%
.9%
71.2% 28.8%
43.3% 15.6% 38.0% 3.2%
20.5% 43.8% 35.7%
1.19 (.55)
76.2% 3.5% 2.2%
10.4% 4.7% 3.1%
"f:
$51.73 ($53.92) 88.8% 11.2%
N
8289
8289
8289
8289
8289
8289
8186 7568
combining Latinos and Native Americans into the racial/ethnic minor- ity category produced a sufficient number of cases to allow for this com- bined main effects analytical strategy. Finally, African (n = 113) and Asian Americans (n = 81) were excluded from the analysis because of negligible numbers and previous research that has indicated different offending and conviction patterns that could confound the results re-
Ed A. Munoz and Adrienne B. Freng 41
lated to race and ethnicity (see Walker, Spohn, & DeLone, 2001; Mufioz & Sapp, 2003; Mann & Zatz, 1998).
The majority of cases originated in Scottsbluff County (43.8%), fol- lowed by Madison (35.7%) and Dakota (20.5%) counties respectively, which roughly corresponded proportionately to total county population data presented in Table I. The average age of offenders was 29.8 and ranged from 11-91 years. From this, three age dummy variables were created for multivariate analyses. We compared Young Adults (25-29) and Adults (30-91) to Youth (11-24). A small number of cases had missing age information (3.2%). These cases were placed in the young adult category based on the median age of offender (age 26). A dummy variable for missing age (I if missing, 0 if not) was included as a control in the following analyses.
As mentioned earlier, researchers have demonstrated the usefulness of employing interactive statistical models along with additive models to examine the effects of legal and extralegal variables in sentencing de- cisions (Spohn & HoUeran, 2000; Spohn & DeLone, 2000; Steffens- meier, Lflmer, & Kramer, 1998). Here, we employed models to examine the combined effects of age, race/ethnicity, and gender on the adjudica- tion of iTiisdemeanor criminal codes. Dummy variables were created employing each of the various combinations of age, race/ethnicity, and gender categories. Young, White females were then utilized as the ref- erence group in sentencing comparisons within and between particular age, race/ethnicity, and gender groupings.
In terms of legal variables, many offenders had more than one type of offense listed in offender records, but only the first three offenses were listed in the data set. Small cell totals were collapsed to reduce offense types into six general offense categories, which were then ranked for se- riousness of the offense. This ranking was as follows, starting with the most serious and ending with the least serious: (1) assault, (2) resisting arrest/disturbing the peace, (3) drug/alcohol, (4) property, (5) traffic, and (6) other. The most serious offense of the three possible charges listed for an offender was used for analysis. Traffic offenses were the most serious offense brought forth for the overwhelming majority of sample misdemeanants (76.2%). Personal, domestic, and sexual as- saults were combined into one category (3.5%) as they involve, more often thun not, varying levels of illegal physical contact. Resisting arrest and disturbing the peace were combined into one category and exam- ined separately from assaults, as they are not always physically violent in nature (2.2%). Drug and alcohol offenses were combined to form an- other category (10.4%). Trespassing, usually related to attempted or
42 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
suspected theft, was combined with property offenses (4.7%). The 'Other' category consisted of all other offenses including leash laws, failure to appear, etc. (3.1%).
Genera! offense categories may mask some important differences in charging due to race/ethnicity and socio-economic status (SES) of of- fenders and victims, but the general overall heightened ambiguity of misdemeanor criminal processing, adjudication, and sentencing helps render this concern moot. In his case study, Feeley (1979) describes lower criminal courts having a market place atmosphere where offi- cials use cursory knowledge to make seemingly arbitrary decisions. External actions and decisions determine lower criminal courts work- load. Police officers and/or citizens whose perspectives differ from court officials initiate almost all cases, and "court officials are continu- ally evaluating the 'seriousness' of the case from the information at hand and fashioning options and sanctions accordingly" (Feeley, 1979: p. 158).
A defendant's prior record is handled in a similar informal manner in lower criminal courts and may be why this information was absent from county court files used for the study. What appears to be most influen- tial in misdemeanor case dispositions is the total number of offenses per defendant, which court officials use as bargaining chips in the adjudica- tion and sentencing of convicted misdemeanants (Feeley, 1979). In the current sample of cases, 13.6 percent of misdemeanants had two or more charges brought against them and the mean number of charges was 1.19. Additionally, in order to address the skewness of this vari- able, the total offenses category was truncated at five offenses.
Selection bias can be introduced at various stages of the criminal jus- tice decision-making process from police discretion and victim report- ing to prosecutorial and judicial case dismissals (Peterson & Hagan, 1984; Zatz & Hagan, 1985). There was little we could do to address law enforcement discretion and victim reporting as the current data come from misdemeanor court record files and not police reports and arrest records. We also recognize the limited quality of the selected court record data due to the limited criminal justice resources available in these smaller non-metropolitan county jurisdictions. These data limita- tions preclude a reasonable determination as to whether non-convic- tions were due to insufficient evidence, to charges being re-filed, to charges being bound over to felony District Court, or to defendants be- ing extradited or entering into unspecified plea bargains. Because of this ambiguity, we did not include non-convictions and truncated the sample to misdemeanor convictions.
Ed A. Munoz and Adrienne B. Freng 43
Two sentencing outcomes regarding fines were the focus of the anal- ysis. Because fmes were the most common disposition for misde- meanor violations (88.8%; particularly for simple traffic violations), one of tlie sentencing variables was amount of fine levied for the con- viction î f a misdemeanor offense. Originally, this variable contained amounts varying from $0 to more than $997. To utilize this variable in OLS, wi; initiated a process to normalize the data without using the nat- ural logarithm so as to maintain the measure of dollars for interpretation purposes (Munoz & McMorris, 2002). Since fines tended to cluster around certain amounts, fines were recoded into $ 10 increments, round- ing to the higher $ 10 amount. Also, since only five percent of individu- als received fines exceeding $210, fine amount was truncated at this amount to address skewness (see Munoz & McMorris, 2002 for additional discussion).
In addition to fines, other possible judgments against offenders were probation, restitution, jail time, required defensive driving school, driver's license suspension, or work release/electronic monitoring. Hence, a second sentencing variable was created and included other judgments in addition to, or rather than, imposed fines. We compared individuals who received only a fine, to those who received a fine and/or yM\ time, probation, and/or restitution for misdemeanor convic- tions. Other dispositions were too few in number and were omitted from analyses.
Added justification for this strategy comes from previous research that shows little or no racial/ethnic disparities in misdemeanor fine amounts (Feeley, 1979; Munoz, Lopez, & Stewart, 1998; Nelson, 1994), and in some cases, higher fine amounts for Whites (Munoz & Sapp, 2003; Munoz & Martinez, 2001; Nelson, 1994). Even if fines are high, they represent a more favorable sentencing disposition than incar- ceratior, which restricts activity, and most important, economic activity necessary for the payment of fines. On the surface, probation may seem like a desirable outcome, but court mandated participation in commu- nity service, substance abuse treatment, and/or defensive driving pro- grams can be more costly in time and money than a one-time fine. The same ctin be said for restitution, as a convicted misdemeanant may be forced to pay for damages to person and/or property beyond their means. More importantly, however, prior sentences of convicted crimi- nals are part of legal decisionmakers focal concerns (Zatz, 2(X)0), par- ticularly when determining how best to protect the community. On the other hand, scholars have questioned the efficacy of court ordered pro- bation and diversionary programs for convicted females and youth,
44 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
both culturally similar and dissimilar, that are desigtied primarily for convicted White and Black adult males (Belknap, 1996; Botvin et al., 1995; Chesney-Lind & Sheldon, 1998; Mari'n, 1993; Sarri, 1987). In these data, 11.2 percent of misdemeanants had a fine and/or some other sentence disposed.
Analytic Strategy
To examine the effect of legal and extralegal variables on misde- meanor dispositions, several analytic techniques were used. First, bivariate relationships were assessed in Table 3 to determine the rela- tionship between the variables and race/ethnic status using chi-square
TABLE 3. Bivariate Relations: Racial/Ethnic Status by Contextual, Legal, and Sentence Variables
County Dakota Madison Scottsbluff
Total Offenses
OfFense Type Traffic Assault Resist/Disturb DruRs/Alcohol Property Other
Sentence Fine Amount
Fine Only Fine and/or Something Else
***p<O.OOI. ° chi-square ''F-statistic
Whites
19.1% 42.9% 38.0%
l.U sd = .426
87.6% 1.6% .8%
6.1% 2.7% 1.1%
$47.97 sd = $47.90
92.9% 7.1%
R/E minority
24.0% 18.0% 58.0%
1.38 sd = .74
47.8% 8.3% 5.5%
20.8% 9.8% 7,8%
$61.33 sd = $65.94
77.2% 22.8%
Total
20.5% 35.7% 43.8%
1.19 sd = .55
76.2% 3.5% 2.2%
10.4% 4.7% 3.1%
$51.73 sd = $53.92
88.8% 11.2%
Chi-Square or F Statistic
469.92***"
420.96***"
1522.58***'
102.84***''
359.04***'
Ed A. Munoz and Adrienne B. Freng 45
and tests of means. Second, the individual contribution of legal, extra- legal, and county variables, and measures for age, racial/ethnic status, and gender combinations on misdemeanor dispositions was examined using regression techniques. In additive multivariate analyses, females. Whites, Scottsbluff County, and traffic offenses serve as reference groups due to our expectation that male, racial/ethnic minority, Dakota and Madison County, and non-traffic related misdemeanants would be sentenced the harshest. Young offenders also serve as a reference group; however, we expect this group to experience harsher sentencing than their older counterparts. In interactive multivariate analyses, young. White females serve as the reference group for within and be- tween age, race/ethnicity, and gender group comparisons. The OLS re- gression results are in shown in Table 4, while logistic regression results are shown in Table 5.
FINDINGS
Bivariate Analyses
The results of the bivariate analyses are presented in Table 3 and indi- cate that significant racial/ethnic relationships exist between all the variables. Based on the sample findings, there is little county racial/eth- nic disproportionality visible when compared to 1990 census data in Ta- ble 1. There are significant differences in legal variables by race/ ethnicity. Whites are significantly more likely to be convicted for traffic offenses (87.6%) rather than any other type of offense, while racial/eth- nic minority misdemeanants are more likely to be convicted for of- fenses (52.2% combined total) other than traffic violations. White and racial/ethnic minority proportional differences for assault, resist/dis- turb, drugs/alcohol, property, and other offenses are consistently large ranging from approximately three (drugs/alcohol) to seven (other) times larger for racial/ethnic minority misdemeanants. Further evidence of significant legal differences between White and racial/ethnic minor- ity misdemeanants can be seen when examining total offenses as the mean number of offenses for racial/ethnic minority misdemeanants (1.38) ^vas higher than White misdemeanants (1.11). Racial/ethnic mi- nority individuals ($61.33), on average, also received higher fine amounts than Whites ($47.97). While the majority of defendants re- ceived just a fme, racial/ethnic minority individuals were three times more likely to receive a fme and/or some other disposition, suggesting
46 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
TABLE 4. Coefficients from OLS Regression of Fine Amount
Male Missing Gender Racial/ethnic minority Young Adult Adult Missing Age Dakota Madison Total Offenses Assault Resist/Disturb Alcohol/DruR Property Other Young White Male YounR R/E minority Male Younf! Adult White Male Young Adult R/E minority Male Adult White Male Adult R/E minority Male Young R'E minority Female Young Adult White Female Young Adult R/E minority Female Adult White Female Adult R/E minority Female Constant
R̂ SE
Model b(se)
3.23** (1.08) -6.26 (5.54)
.13 (1.22) 3.07* (1.42)
4.73** (1.07) -16.33**(3.10) 28.08** (1.42) 11.27** ( l . I I ) 21.63** (1.00) -9.30** (2.75) 13.92** (3.49) 69,52** (1.81)
.73 (2.40) -6.16* (3.05)
5.35**(1.6l)
.357 43.28
1 beta
.027 -.010 .001 .022 .043
-.053 .207 .100 .220
-.032 .038 .390 .003
-.019
Model 2 b(se)
28.16** (1.42) 11.44** (1.12) 21.60** (I.OO) -9.02** (2.75) 13,84** (3.49) 69.49** (1.81) .634 (2.40) -6.15* (3.06) 1.86 (1.89) 2.16 (2.26) 5.89* (2.34) 5.42* (2.75)
8.76** (1.91) 5.94* (2.52) 5.57 (3.51) 3.22 (2.99) -.539 (4.54)
1.14 (2.23) 7.98* (3.83) 5.97** (1.97)
.358 43.27
beta
,208 .102 .219
-.031 .037 .390 .002
-.018 .014 .012 .030 .022
,065 .027 .016 -Oil
-.001
.006
.020
*p<0.05; **p<O.OI. (two-tailed test) Note: Reference categories are females, Whites, young, Scottsbluff, traffic, and young. White females.
that racial/ethnic minority misdemeanants may be at more risk for harsher misdemeanor sentencing.
Multivariate Analyses
Based on the bivariate results indicating differences in misdemeanor adjudication, multivariate OLS regression analyses were conducted to
Ed A. MuHoz and Adrienne B. Freng 47
TABLE 5. Coefficients from Logistic Regressions Predicting Fine and/or Other Punishment versus Fine Only
Male Racial/etiinic minority Young Aiiult Adult Dakota Madison Total Offenses Assault Resisl/Disturb Alcohol/Dmg Property Other Young W hite Male Young R-'E minority Male Young Aiiult White Male Young Adult R/E minority Male Adult White Male Adult R / i minority Mate Young R'E minority Female YounR A dult Whit e Female Young Adult R/E minority Female Adult Wiiite Female Adult R/E minority Female Constant
Model Chi-Square {dO Nagelkeike R' -2 Log Likelihood
b(se) .32* .75** .79** .83** 1.99** 2.39** 1.14** 4.39** 4.29** 4.14** 3.90** 2.36**
-8.16**
Model
(.14) (-13) (.15) (.13) (.16) (.18) (.09) (.21) (.26) (.15) (.19) (.29)
(.28)
2945.03** (14) .6^
2356.118
1 Odds
1.38 2.11 2.19 2.30 7.28
10.86 3.13
80.30 72.97 63.02 49.59 10.62
Model 2 b(se)
2.01** 2.39** 1.14** 4.43** 4.32** 4.15** 3.97** 2.43**
.22 1.28** 1.10** 1.98**
1.46** 1.82** 1.15** l . U * * 1.60**
.98** 1.15** -8.28**
2956.34** (21) .64
(.16) (.18) (.09) (.21) (.26) (-16) (.19) (.29) (.30) (.31) (.34) (.34)
(.31) (.32) (.41) (.42) (.54)
(.37) (.42) (.36)
2344.806
Odds
7.50 10.84 3.12
83.60 75.22 63.72 52.76 11.33
1.25 3.61 3.00 7.22
4.30 6.17 3.17 3.04 4.97
2.68 3.15
•p<0.05; **p<O.OI. (two-tailed test) Note: Analyses for Model 2 control for missing age and gender (coefTicienls not shown). Note: Reference categories are females, Whites, young, Scottsbluff, traffic, and young. White females.
the main and combined effects of legal and extralegal variables on fine amounts. Multivariate logistic regression analyses were used to assess rnain and combined effects of legal and extralegal variables on whether an individual received a fine only, or a fine and/or some other disposition.
48 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
OLS regression results are shown in Table 4. The main effects of le- gal and extralegal variables in Model 1 significantly explained 36% of the variance in fine amounts. When considering the extralegal vari- ables' influence on the amount of fine, mixed effects appeared. Males ($3.23; p < .01) received slightly higher fines than females. Supporting previous research (Feeley, 1979; Munoz & Martinez, 2001; Nelson 1994), there were no significant differences between racial/ethnic groups in the amount of the fine. Both young adults ($3.07; p < .05) and adults ($4.73; p < .01) received slightly higher fines than young misdemeanants, which is contradictory to our expectations, and to pre- vious findings in felony sentencing decisions that show younger felons receiving harsher sentences than older felons (Steffensmeier, Ulmer, & Kramer, 1998).
The variables that seemed to have the greatest effect on fine amount were county of disposition, the total number offenses, and the type of offense. As predicted, individuals in both Dakota (b = $28.08; beta = .207; p < .01) and Madison (b = $11.27; beta = . 100; p < .01) counties re- ceived higher fines than those in Scottsbluff County. Furthermore, as the total number of offenses increased, the fine received grew by $21.63 (beta = .220; p < .01). The type of offense was also extremely influential on fine amount. Fines for all offenses except property were significantly different than traffic. Those individuals convicted for alcohol/drug of- fenses received a fine of almost $70 more than traffic offenders. Fur- thermore, this variable (beta = .390; p < .01), along with total offenses (beta = .220; p < .01), had the strongest explanation effect on fine amount. While not as dramatic, fines for resisting/disturbing were also more than traffic ($13.92; p < .01). Interestingly, fines for assault ($9.30) and other offenses ($6.16) were significantly less than fines for traffic offenses.
Model 2 examined the same relationships as Model 1; however, it also explored whether various age, gender, and racial/ethnic character- istics had any explanation power for the amount of Fme given for a mis- demeanor offense. While the model was significant, including the interactive terms provided a negligible difference in the variance ex- plained. All the main effects from Mode! 1 remained with the legal and contextual variables (county, total offenses, and alcohol/drug offenses) having the greatest effects on fine amount. However, of interest in this model was how the various groups differed from young. White females (reference group). Contrary to our predictions, the fmes of young males, regardless of race, did not differ significantly from young, White fe- males. Young adult and adult males regardless of racial/ethnic group
Ed A. Mufioz and Adrienne B. Freng 49
differed significantly from the reference group, with adult. White males receiving fines about $9 (beta = .065; p > .01) more than young, White females and ail other groups receiving fines about $6 more. When fur- ther examining the data within these particular age/male categories, it appears that older. White males may be the recipients of higher fines when ccnvicted for misdemeanor criminal offenses. This observation is reinforced by the data showing that regardless of racial/ethnic status, females were treated fairly similar. None of the females except for adult, racial/ethnic minority females (beta = .020; p < .05) differed significantly from ycung. White females. Adult, racial/ethnic minority females paid about $8.00 more in fmes than young. White females.
Also of interest in this research was whether or not legal and extrale- gal variables impacted the decision for misdemeanants to receive a fine only, or a fine and/or some other disposition. Logistic regression was utilized to further examine this question through main and combined models detailed in Table 5. The legal and extralegal variables explained more of the variance (64%) for disposition than they did for fine amount. The extralegal variabies had significant effects in predicting the likelihood of receiving the disposition of a fine, or a fine and/or some oi.her disposition. Males (Odds = 1.38; p < .05) had greater odds than females for receiving a fine and/or some other disposition. Con- trary to the findings of no significant racial/ethnic differences for fine amount, racial/ethnic minority misdemeanants (Odds = 2.11; p < .01) had twice the odds of White misdemeanants for receiving a fine and/or some olher disposition. Also contrary to what was predicted, but consis- tent with the findings for fine amount, young adults (Odds = 2.19; p < .01) and adults (Odds = 2.30; p < .01) had about twice the odds of young individuals for receiving a fine and/or some other disposition.
As ejtpected, individuals in both Dakota (Odds = 7.28; p < .0!) and Madison (Odds = 10.86; p < .01) counties had greater odds of experi- encing harsher punishment than individuals in Scottsbluff County. Dif- ferent iTom fine amounts, Madison County misdemeanants were at most risk for harsher punishment as their odds for receiving a fine and/or some other punishment were about ten times higher than for Scottsbluff misdemeanants. The legal variables also played a signifi- cant role in explaining the misdemeanor disposition, but offense types rather than total number of offenses had the larger impact for type of disposition. For each additional offense, the odds of receiving a fine and/or >omething else increased three times (Odds = 3.13; p < .01). All examined offense categories differed significantly from traffic offenses with increased odds for receiving a fme and/or some other disposition
50 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE
ranging from about 80 times greater for assault (Odds = 80.30; p < .01) and close to 11 times greater for other offenses (Odds = 10.62;p<.01).
As seen with fine amount. Model 2 for disposition, although signifi- cant, did not improve the explanation power. The legal and extralegal variables remained significant with county and offense type having the largest effects on the odds of receiving a fine and/or other disposition. However, the effect of extralegal interaction terms on the type of dispo- sition received differed from the effects on fine amounts. Overall, ra- cial/ethnic minority mates and females fared worse than their respective age and gender counterparts when the type of disposition was consid- ered. More specifically, the odds of receiving a fine and/or something else significantly differed from young. White females for all groups except young, White males. The significant difference in odds for re- ceiving a fine and/or something else in compari.son to young. White females ranged from about three times greater for adult. White fe- males (Odds = 2.68; p < .01) to more than six and seven times greater for adult, racial/ethnic minority males (Odds = 6.17; p < .01) and young, adult racial/ethnic minority males (Odds = 7.22; p < .01) respec- tively. Examination of specific age, race/ethnicity, and gender catego- ries show that racial/ethnic minority males and females are consistently more at risk for receiving a fine and/or some other disposition than their White counterparts.
DISCUSSION AND CONCLUSION
Overall, the data do support both theoretical concepts of contextual discrimination and focal concerns. Racial/ethnic misdemeanor sentenc- ing disparity was present, but variable in nature and scope (HI). Main effects showed no significant racial/ethnic differences in fine amounts, but racial/ethnic minority offenders were at a greater risk for receiving a fine and/or some other disposition rather than just a fine for the convic- tion of a misdemeanor criminal offense. In addition, the combined ef- fects of age, racial/ethnic minority status, and gender showed that adult. White males received the harshest fine amount than any other group when compared to young. White females. But when comparing sen- tencing dispositions, adult and older adult, racial/ethnic minority males were more likely to receive a sentence of a fine and/or something else. Although results for females were more variable, racial/ethnic minority females fared worse than their White counterparts. This variability in findings supports the concept of contextual discrimination in that
Ed A. MuHoz and Adrienne B. Freng 51
sentencing disparities are not always worst for non-White racial/ethnic minority groups.
Not surprising, males were sentenced harsher than females, but unex- pectedly, young misdemeanants were the recipients of more lenient misdemeanor sentencing (H2). It could very well be that lower criminal court judges view young misdemeanor criminal activity as foolish, imp- ish behavior that will cease with increasing age and not as blameworthy as misdemeanor criminal activity by older misdemeanants who should have learned by now to desist from this type of behavior. This observed age and gender pattern held true in models testing for age, race/ethnic- ity, and gender combined effects, but differed somewhat from previous work on felony sentencing patterns (Spohn & HoUeran, 2000; Steffens- meier, Ulmer, & Kramer, 1998).
While racial/ethnic minority males and females generally did fare worse than their White counterparts, older, rather than younger, ra- cial/ethnic minority males and females were most at risk for harsher punishment (H3). Age, race/ethnicity, and gender disparities in eco- nomic resources favoring older. White males could be the driving factor in higher fine amounts for this particular group, and for the higher odds in recei ving a fine and/or some other disposition for racial/ethnic minor- ity males and females. However, the consistent, significant racial/ethnic minority status effect net of controls for legal variables in both main and combined models measuring the odds of receiving a fine and/or some other disposition, supports the notion that racial/ethnic minority males and females are viewed as more of a risk to the protection of the community.
As in previous research, legal variables rather than extralegal vari- ables do have a greater impact on blameworthiness and sentencing outcomes (H4). The type and number of offenses both mattered, but in different sentencing contexts. The number of offenses mattered more in determining fine amounts, while type of offense mattered more in determining whether a convicted misdemeanant received a fine and/or some other disposition. These differences are highlighted particularly through sentencing differences for assault and property offenders. As- sault misdemeanants received significantly lower fines, yet had a greater risk for a fine and/or some other disposition (i.e., jail) than traf- fic misdemeanants. Similarly, there were no significant differences in fine amounts between property and traffic misdemeanants, but property misdemeanants were at a higher risk for receiving a fine and/or some other disposition (i.e., restitution).
52 JOURNAL OF ETHNICITY IN CRIMINAL JUSTICE •
The expected finding that Dakota and Madison misdemeanants were sentenced more harshly than Scottsbluff misdemeanants provides sup- port to the claim that county contextual factors may infiuence judges' evaluations of the practical constraints and consequences of sentencing outcomes (H5). In particular, higher fines in Dakota County and in- creased odds of receiving a fine and/or some other disposition in Madison County may be an indication of differences in incarceration and rehabili- tation resources between the two counties. In terms of sentencing conse- quences, there is evidence of heightened political organization and resistance to injustice in Scottsbluff County by both Latinos (Valdes, 1990) and Native Americans (Matthiessen, 1983). Alternatively, the high degree of racial/ethnic change in Dakota and Madison counties fueled primarily by Latino immigrant labor (Stull, Broadway, & Griffith, 1995) may have exacerbated historically bad relations between Whites and Na- tive Americans in the selected regions (Wishart, 1994).
Future research with more comprehensive data can better untangle the impact of extralegal and legal variables on sentencing outcomes. Such analyses might reveal young, racial/ethnic minority males and fe- males receive harsher sentencing for less serious misdemeanor crimes (i.e., drug/alcohol), and that adult. White males receive harsher sentenc- ing for more serious misdemeanors (i.e., assault). In any case, it is clear that criminal justice is fraught with racially/ethnically biased discretion in all aspects of dec is ion-making, including misdemeanor criminal justice decisions. Hence, future sentencing research needs to weigh better the implications ofracial/ethnic bias in misdemeanor sentencing, particularly when previous misdemeanor decisions are taken into account in criminal sentencing decisions through seemingly legal variables such as prior record (HoUeran & Spohn, 2004; Johnson, 2003; Lubitz & Ross, 2001; Spohn, 2000; Ulmer & Johnson, 2004; Zatz, 2000). As it appears now, the uncritical use of misdemeanor sentencing decisions as part of the criteria used in evaluating prior criminal histories is but yet another manifestation of the cumulative disadvantage in the administration of justice faced by socially, economically, and politically underprivileged populations (Zatz, 1987).
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Submitted: August 2006 Revised: March 2007 Accepted: April 2007
doi: 10.1300/J222v05n04_02
