Cumulative Racial and Ethnic Inequalities in Potentially Capital Cases

Published date01 June 2020
Date01 June 2020
Subject MatterArticles
Cumulative Racial and Ethnic
Inequalities in Potentially
Capital Cases: A Multistage
Analysis of Pretrial Disparities
Nick Petersen
To understand how racial/ethnic disparities are formed and sustained within death penalty insti-
tutions, this study tracks homicide cases through multiple stages of Los Angeles County’s criminal
justice system. Drawing upon cumulative disadvantage research, this study focuses on the accu-
mulation of racial/ethnic biases across multiple decision-making points. Logistic regressions seek to
answer the following questions: (1) does victim/defendant race/ethnicity influence prosecutorial
decision-making? and (2) if so, do these racial/ethnic disparities accumulate across multiple stages of
the criminal justice system? Results indicate that cases with minority victims are less likely to involve
a death-eligible charge or death notice. Moreover, these racial/ethnic disparities increase as cases
advance through the courts, producing a Whiter pool of victims at later stages in the process.
Defendant race/ethnicity is not predictive of death penalty charging decisions but does moderate the
influence of victim race/ethnicity such that cases with minority defendants and White victims are
treated more punitively.
capital punishment, corrections, race and crime/justice, other, court, courts/law, quantitative
methods, violent behavior
While racial and ethnic disparities in death sentencing have been well established, less attention has
been devoted to the pretrial processes generating these patterns, especially the accumulation of
racial/ethnic disparities across stages of the court system (for a review, see Grosso, O’Brien, Taylor,
& Woodworth, 2014; Urbina, 2012). Despite the long-standing recognition that punishment out-
comes stem from multiple pretrial decisions (Blumstein, Cohen, Martin, & Tonry, 1983), most death
penalty research focuses on the decision to seek capital punishment and/or the imposition of a death
sentence (Kaplan, Ganschow, Angioli, & Tabin, 2009; Radelet & Pierce, 2009). In the death penalty
Department of Sociology, University of Miami, Coral Gables, FL, USA
Corresponding Author:
Nick Petersen, Department of Sociology, University of Miami, 5202 University Drive, Merrick Building, Room 122G, Coral
Gables, FL 33124, USA.
Criminal Justice Review
2020, Vol. 45(2) 225-249
ª2017 Georgia State University
Article reuse guidelines:
DOI: 10.1177/0734016817721291
context, prosecutors have considerable latitude when making charging decisions, thereby amplifying
the potential for racial/ethnic inequalities (Radelet & Pierce, 2009). Moreover, racial/ethnic dispa-
rities at the pretrial stage can artificially increase the proportion of death-eligible cases involving
White victims, thereby obscuring biases at later stages in the process by making dissimilar cases
appear more similar than they actually are (Radelet & Pierce, 2009).
In its 1990 report, the U.S. General Accountability Office (USGAO) criticized death penalty
research for neglecting to examine the decision chain leading to death sentences. The report
remarked that “discretion exercised early in the process may have the effect of concealing (masking)
race effects if analysis is limited only to the later stages” (p. 4). Others have extended the GAO’s
criticism to earlier stages in the death penalty process, arguing that a holistic account of death
penalty outcomes requires looking at the entire decision-making process, beginning with the initia-
tion of a criminal case (Kaplan et al., 2009; Pierce, Radelet, Posick, & Lyman, 2014; Radelet &
Pierce, 2009). And although sentencing scholars have long been aware of selection biases that can
arise from ignoring case progression dynamics, the issue has received surprisingly little attention in
the death penalty literature.
Outside of the death penalty context, sentencing scholars have become increasingly aware of the
need to examine multiple pretrial decision-making points (Kutateladze, Andiloro, Johnson, &
Spohn, 2014; Spohn, 2000; Stolzenberg, D’Alessio, & Eitle, 2013; Sutton, 2013). These studies
frequently rely upon the cumulative disadvantage framework, which argues that initial advantages in
group positionality increase over time, producing large disparities at the final stages. In other words,
the process of cumulative disadvantage is “capable of magnifying small differences over time and
makes it difficult for an individual or group that is behind at a point in time catch up” (DiPrete
& Eirich, 2006, p. 273). In the criminal justice context, cumulative disadvantage implies that racial/
ethnic disparities arise from the accumulation of biases across mul tiple decision-making points
(Kutateladze et al., 2014; Spohn, 2000; Stolzenberg et al., 2013; Sutton, 2013).
Literature Review
Modern Racism and Criminal Justice
While racism has historically been displayed through overt animus, modern racism is characterized
by the use of color-blind logics, wherein seemingly race/ethnicity-neutral principles are used to
explain various forms of racial/ethnic stratification (Haney-Lo´pez, 2010). These dynamics have
contributed to racial/ethnic inequalities within the justice system. Stereotypes linking Blackness
and criminality permeate contemporary discourses on crime, such that the two are often interrelated
in the collective conscience (Welch, 2007). Latinos, especially those of Mexican descent, have been
criminalized through different processes. In recent decades, the Latino threat narrative—an ideology
characterizing Latinos as “invaders” who are reproductively “out of control,” unwilling to assim-
ilate, and criminally inclined—has been use d to justify anti-immigration policies a nd practices
(Chavez, 2013). Yet despite lower crime rates in Latino immigrant neighborhoods (Sampson,
2008), these communities have been stereotyped as crime-prone in part due to exaggerated fears
of undocumented immigrants committing crimes (Chavez, 2013). This immigration–crime myth has
allowed officials to gain political points by igniting racial and ethnic moral panics without explicitly
using racist or ethnically biased language (Chavez, 2013).
In this context, the Latino threat narrative may influence decision-making processes in homicide
cases involving Latino victims and/or defendants. This may be especially true in contexts where
fears of Latino criminality intersect with histories of anti-immigrant sentiment and legacies of racial/
ethnic violence perpetrated against Latinos, such as the southwest. The dearth of research on
intersection of victim-defendant race/ethnicity in homicide cases is especially important for
226 Criminal Justice Review 45(2)

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