Cumulative Racial and Ethnic Inequalities in Potentially Capital Cases

• DOI: 10.1177/0734016817721291
• Published date: 01 June 2020
• Author: Nick Petersen
• Date: 01 June 2020
• Subject Matter: Articles

Article

Cumulative Racial and Ethnic

Inequalities in Potentially

Capital Cases: A Multistage

Analysis of Pretrial Disparities

Nick Petersen

1

Abstract

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.

Keywords

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

1

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.

Email: npetersen@miami.edu

Criminal Justice Review

2020, Vol. 45(2) 225-249

ª2017 Georgia State University

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DOI: 10.1177/0734016817721291

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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 ...to 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)