Abstract
Criminal-justice researchers perennially have tried to determine whether defendants are convicted and punished as much for who they are as for what they have done. Motivating dozens of multivariate statistical analyses of sentencing decisions is a basic concern for justice and “equal treatment before the law” (Hagan, 1975b). The question is whether defendants are treated according to the legal seriousness of their offenses and without regard to age, race, socioeconomic status, sex, or other “extralegal” attributes. Largely, studies addressing this question in the last three decades examined the influence of various legal and extra-legal 1 factors on imposed sentences, rather than investigating the process by which various dispositional outcomes are produced.2
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There is some debate over whether the distinction between legal and extralegal factors is a proper one (cf. Bernstein, Kelly, and Doyle, 1977a: 750). In the discussion that follows, I will use “offense-related” and “offender-related” as terms to make the distinction, which does not necessarily skirt the issues raised by Bernstein et al. (1977a) and Farrell and Swigert (1978), but is a convenience that is grounded in the way in which such factors are utilized or treated by the legal practitioners in this study. See the discussion of “offense-related factors” below.
Mehan (1979) has made a similar critique of traditional studies of schooling that seek to relate “input” and “output” factors rather than to examine how various outcomes of the educational process are assembled as products of teachers’ and students’ organized interaction. With specific allowances made for such contingencies as the size and degree of threat posed by various groups and interests, this perspective has generally argued that the less powerful a group, the more likely will its behaviors be designated as crime and its members designated as criminals.
A related tradition derives from no explicit theoretical perspective other than a concern with “equality before the law” (see Hagan, 1975a: 536, fn. 4), a focus that fits with that of labeling and conflict theorists. Researchers following this tradition seem to speak primarily to policymakers and others interested in the extent to which the official ideal of equality is being implemented in the courts (e.g., Swigert and Farrell, 1977) rather than to social scientists per se.
The state of research on adult criminal courts is duplicated in the studies of juvenile courts (e.g., see the discussion and review in Horwitz and Wasserman, 1980) and in research on jury decision making (Bennett and Feldman, 1981: Chapter 8).
As Feeley (1979c: 187) has observed, the question for defendants, at least in misdemeanor criminal cases, “is not whether to go to trial, but whether to show up in court at all.” Knowing this, courtroom officials may regard a defendant’s appearing in court as one factor in his or her favor.as Sacks
Compare this to example (35) in Chapter 4 and example (6) in Chapter 6, which also compare defendants to hypothetical persons as a way of justifying a position.
Note that in both examples, the person doing argument was the public defender. This reflects an asymmetry in the negotiation process discussed by Feeley (1979c: 177) and Mather (1979: 70, 94). At least in misdemeanor plea bargainings, prosecutors are “relatively passive.” They seem to assume that standard penalties are appropriate for most cases and leave it to defense attorneys to convince them otherwise in particular instances or to make an argument that a given case is not an instance of a “normal crime” (Sudnow, 1965). Thus, it is the public defenders in this study who produce most of the person-descriptions. District attorneys, however, do the same sort of justifying work with person-descriptions when the occasion calls for it. See Chapter 6, example (6).
It could be argued, of course, that negotiators have other relevant variables “in their minds,” even if they do not discuss them, and that their actions are determined by these hidden variables, not what gets exhibited in talk. This argument leads to recommendations for research on negotiatiors’ backgrounds and attitudes, perhaps along the lines developed in studies of judicial decision making (Hogarth, 1971; Levin, 1972; Nagel, 1962a,ó; Smith and Blumberg, 1967 ). Two problems arise, however. One is that plea bargaining decisions are mutually determined, thus putting constraints on the degree to which a prosecutor’s or defense attorney’s private knowledge or beliefs can affect sentencing outcomes. Second, and more important, the use of subjective attitudes and beliefs is a very complex matter. At a minimum, it cannot be presupposed that the subjective processes by which defendant attributes are related to desired outcomes are any less complicated than the public (conversational) display of that relationship. To the contrary, it must be presumed that the subjective reality of such attributes is similar to their intersubjective reality in terms of the selectivity and contextualness of their use.
Feeley cites the example of a defendant with no prior record: While a prosecutor might respond with lenience in one case, in another he might decide to follow a harsher strategy, believing that a “firm hand” at an early point might be the most effective deterrent against future misconduct. (Feeley, 1979c: 163) This raises the possibility that “prior record,” in some instances, is used, like offenderrelated factors, in a selective and contextual way rather than, as argued earlier, a mere “starting point” for further negotiation.
Chiricos and Waldo (1975: 769), however, observe that “specifying the contingencies” surrounding the relationship of a given factor to sentencing may be a “relatively boundless task.” (Their specific concern is with socioeconomic status.)
This issue was also been confronted in an attempt to eliminate plea bargaining in El Paso, Texas (see Daudistel, 1980 ). There, criminal-justice personnel tried to set up a point system that would help them determine sentences by using certain objective criteria. The system did not work. Rather than following the point system literally, the felony court judges rated each case on its own merits. The judges recognized they had not specified all of the variables relevant to sentencing decisions. This is not a criticism of the point system. No matter
See the discussion of “prior record” in the section on “offense-related” factors.
For a similar recommendation regarding the study of mental health agencies and psychiatric decision making, see Peyrot (1982), who also emphasizes understanding the organizational context and frame of reference within which professionals operate.
See the discussion of examples (9) and (10) in Chapter 3.
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Maynard, D.W. (1984). Modeling Sentencing Decisions. In: Inside Plea Bargaining. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-0372-3_7
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