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Chapter 16
Prosecution and Punishment
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
Criminal Courts and the
Adversary System
• Sociologists long noted actual behavior of people
in organizations often differs from formal
procedures required by organizations
• Court adversarial system largely a myth
• How does system really work?
 Sociological jurisprudence
 Legal realism
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Normal Crimes and the Fate of Poor
Defendants
 Prosecutors and public defenders develop same
idea about what is a “normal” or typical crime
 More cooperation between prosecutors and
public defenders
 “Confidence game”
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Blumberg’s research concluded poor but
innocent defendants were being railroaded
 Downie was critical of rampant plea
bargaining
 Research in 1970s concluded race and class of
defendants do not generally affect chances of
conviction or sentences received
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Prosecutors, the Courtroom Workgroup,
and Plea Bargaining
 Heavy caseloads burden courtroom
workgroup (prosecutors, defense attorneys,
judges)
 Plea bargaining helps process huge caseloads
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Elements considered by prosecutors to
determine if case is strong
Seriousness of offense
Injured victim?
Strong evidence (i.e. eyewitnesses, physical
evidence)
Use of a weapon
Prior criminal record
“Stand-up” victim
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
Punishment, Social Structure,
and Inequality
• Introduction
 Durkheim thought punishment reinforced social
stability by clarifying norms
 Social structure of a society helps determine
type of punishment it adopts
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Two types of societies
Small folk
Collective conscience
Mechanical solidarity
Repressive law: harsh physical
punishment of offenders
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
Advanced, larger society
Social solidarity is organic; derives from
interdependence
Restitutive law: interest in restoring
relationships to previous state
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Economic Conditions and Punishment
 Research on Unemployment and Imprisonment
Evidence complex and inconsistent on whether
higher rates of imprisonment in areas with high
unemployment rates
Political factors and bureaucratic pressures affect
legal responses to social and economic changes
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Research on the Postbellum South
Inspired by Blalock’s (1967) power threat theory
Competition between whites and newly freed slaves
Imprisonment of young black males during this
period increased as Southern whites fear blacks
would gain political and economic power
Patterns of lynchings and imprisonment over
following decades support Blalock’s theory
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Social Class and Legal Outcomes
 Some research shows after offense seriousness,
prior record and other factors held constant,
poorest offenders do not fare worse than less
poor defendants
 Others argue too little income variation to allow
class differences in outcomes to emerge
 Factual guilt v. legal guilt
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Class disparity in legal outcomes of poor
accused of street crime v. wealthier accused of
white-collar crime
 Treat street crime more harshly because public
more concerned about it than white-collar
crime?
 The Community Context of Social Class
and Sentencing
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• The Impact of Race and Ethnicity
 Prosecutorial Decisions
Research evidence mixed on subject of
race/ethnicity affecting prosecutorial decisions to
dismiss or bring serious charges
Study in L.A. of 33,000 felony cases found
prosecutors more likely to dismiss against white
than African-American or Hispanic defendants
(Sphon, Gruhl, and Welch, 1987)
People accused of killing whites more likely to be
indicted for 1st degree murder than people accused
of killing blacks
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Conviction and Sentencing
African-Americans and Hispanics more likely to be
in prison than whites
Almost 1/3 of black males expected to go to prison
compared to 5.9% of whites
Consensus theory argues minorities more involved
in street crime most likely to lead to prison
Conflict theory argues attribute imprisonment rate to
systematic discrimination
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 A Brief History of Race and Sentencing Research
 Pre-1970s studies of race and sentencing focused on blackwhite differences in sentencing and found blacks received
harsher sentences
 1960s and early 1970s conclusion began to shift;
methodological deficiencies in earlier research
 Hagan article (1974) charged earlier research with ignoring
offense seriousness and prior record
 Others challenged the nondiscrimination in sentencing
conclusion made by Hagan and Kleck
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 The Race of the Victim
Studies of rape and capital offenses show sentencing
is more punitive when whites are victims than when
blacks are victims
Findings parallel in arrest decisions and
prosecutorial decisions
Blacks receive longer sentences when victims are
white
New research reveals victim-offender relationship
and victim behavior affected how they were treated
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 The Liberation Hypothesis and Less Serious
Crimes
Research finds racial discrimination in less serious
crime, but not in more serious because little room
for discretion in more serious cases
Liberation hypothesis – less serious cases
“liberate” judges to use their discretion
Spohn and Cederblom (1991) study of 4,655 felony
defendants in Detroit; found overt racial
discrimination
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• More recent evidence for the liberation hypothesis
comes from a study of convicted drug offenders in
Washington State (Seen, Engen and Gainey 2005)
• A similar study of New York City women,
conducted by Pauline K. Brennan (2006)
uncovered indirect racial and ethnic discrimination
in the imposition of jail sentences
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Latinos and Native Americans
 Research on Hispanics is inconsistent; some studies show
they’re treated harsher than whites
 Few studies exist on Native Americans
 Studies available on Native Americans suggest they are treated
more harshly in some stages of system compared to nonIndians
 Defendants whose primary language is not English experience
language and cultural difficulties
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 The Community Context of Racial/Ethnic
Discrimination
Structural and social context of sentencing bias
Bridges and Crutchfield (1988), “social
characteristics of states contribute significantly to
racial disparity in imprisonment”
Chiricos and Crawford (1995)
Racial discrimination may be present at one stage in
system, but not others
Not all studies find structural context makes a
difference
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 A Cautious Conclusion on Racial and Ethnic
Discrimination in Sentencing
Evidence for discrimination in juvenile system more
consistent than for adult system
Many scholars feel disproportionate involvement in
street crime accounts for number of minorities
incarcerated
Walker suggests discrimination against minorities is
not universal, but does exist in some cases
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 The Drug War Revisited
Disproportionate arrests for young black males
Higher penalties for crack cocaine than similar
amounts of power cocaine
Black incarceration rates rose
One-third of young black males under correctional
supervision (prison, jail, probation or parole)
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Gender and Sentencing
 91% of all prison and jail inmates in the United
States are male
 Men more likely to commit serious offenses
than women
 Girls treated more harshly than boys in juvenile
system for status offenses
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
The Impact of Punishment on
Crime
• Introduction
 Longer prison terms and mandatory minimums
for many crimes
 Enormous increase in prison population
 Probation/parole numbers have tripled
 U.S. still has high crime rate than most
industrial nations
 Deterrence/incapacitation arguments
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• The Evidence Against a Deterrent Effect
 Decreases in crime rates have not always accompanied
huge increases in incarceration
 At state level only weak and inconsistent relationship
between severity of punishment and crime rates
 Lack of evidence in studies to support argument
 Decreases in crime do not generally occur after harsher
penalties
 Increase in prisoners has forced early release of
convicted offenders already there
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• The Evidence Against an Incapacitation
Effect
 Assumes we don’t have enough people already
in prison and there’s room for more
 Assumes chronic offenders can be easily
identified
 Ignores fact any extra people put in prisons are
only a small % of all offenders
 Increase in incarceration last few decades may
make crime problem worse
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
The Death Penalty Debate
• Three Arguments
 Deserve to be executed
 Saves money
 Sends a message
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• The Cost of the Death Penalty
 Actually costs more than life in prison
• General Deterrence and the Death Penalty
 Most studies show no deterrence effect
 Brutalization effect: homicides actually
increase after executions
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• Arbitrariness and Racial Discrimination in
the Death Penalty’s Application
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


Problems in way death penalty is applied
Lack of standards in applying the penalty
Furman v. Georgia (1972)
Gregg v. Georgia (1976)
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
 Continuing Arbitrariness
Defendants accused of similar murders are treated
differently for no logical reasons
 Racial Discrimination
Lives of white victims more valuable than
minorities’?
Harsher treatment of blacks
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan
• The Quality of Legal Representation of
Capital Defendants
 Most criminal defendants are poor and receive
inadequate legal representation
 Similar problems for appeals process
• Wrongful Executions
 Since 1900, at least 350 defendant convicted of
potentially capital crimes even though innocent
©2009 Pearson Education, Inc.
Upper Saddle River, NJ 07458
Criminology, 4th edition
Steven E. Barkan