Effect of scaling back punishment on racial and ethnic disparities in criminal case outcomes

• Published date: 01 November 2020
• Date: 01 November 2020
• Author: Steven Raphael,John MacDonald
• DOI: http://doi.org/10.1111/1745-9133.12495

DOI: 10.1111/1745-9133.12495

SPECIAL ISSUE ARTICLE

TACKLING DISPARITY IN THE CRIMINAL JUSTICE SYSTEM

Effect of scaling back punishment on racial

and ethnic disparities in criminal case outcomes

John MacDonald1Steven Raphael2

1University of Pennsylvania

2University of California—Berkeley

Correspondence

JohnMacDonald, Depar tment of Criminology,

Universityof Pennsylvania, 3718 Locust Walk,

Philadelphia,PA 19104-6286.

Email:johnmm@sas.upenn.edu

Fundinginformation

Frankand Denise Quattrone Foundation

Theaut hors are grateful to YotamShem Tov for

hisexcellent research assistance on this project,

andto Alissa Skog for helping think through the

structure of the administrativedata sets. They

areespecially grateful to Mar ia McKeeand

TaraRegan Anderson for the many insights they

providedover the course of this project, as well

asto t he District Attorney of San Francisco,

GeorgeGascon, for asking for this study to be

conducted.This research was supported by a

grant fromt he Frank and Denise Quattrone

Foundation.Any opinions and conclusions

expressedherein are those of the authors only.

Research Summary: In late 2014, California voterspassed

Proposition 47 that redefined a set of less serious felony

drug and property offenses as misdemeanors. We examine

how racial and ethnic disparities in criminal court dispo-

sitions in San Francisco change in the years before (2010–

2014) and after (2015–2016) the passage of Proposition 47.

We decompose disparities in court dispositions into com-

ponents resulting from racial/ethnic differences in offense

characteristics, involvement in the criminal justice system

at the time of arrest, pretrial detention, criminal history,

and the residual unexplained component. Before and after

Proposition 47, case characteristics explain nearly all of the

observable disparities in court dispositions between racial

and ethnic groups. After the passage of Proposition 47,

however, there is a narrowing of disparities in convictions

and incarceration sentences that is driven by lesser weight

placed on criminal history, active criminal justice status,

and pretrial detention in effecting court dispositions

Policy Implications: The findings from this study suggest

that policy reforms that scale back the severity of punish-

ment for criminal history and active criminal justice status

for less serious felonyoffenses may help narrow inter-racial

and inter-ethnic inequalities in criminal court dispositions.

Efforts to reduce racial and ethnic inequalities in mass

incarceration in other states should consider reforms that

reduce the weight that criminal history, pretrial detention,

and active probation status has on criminal defendants’

eligibility for prison for less serious drug and property

offenses.

Criminology & Public Policy. 2020;19:1139–1164. wileyonlinelibrary.com/journal/capp © 2020 American Society of Criminology 1139

1140 MACDONALD AND RAPHAEL

Racial and ethnic disparities in the criminal justice system are often framed in terms of a discrimina-

tion/criminal behavior dichotomy. On the one hand is the argument that Blacks and other racial and eth-

nic minorities are treated differentially by law enforcement, prosecutors, and the courts. To the extent

that this is the case, differential treatment in the criminal justice system will generate worse outcomes

for members of minority groups. On the other hand, average differences may exist in the propensity

to commit criminal offenses by race and ethnicity. Group differences in baseline offending rates may

derive from social inequalities in poverty rates, educational attainment, family structure, and other fac-

tors that impact the propensity to engage in crime (Sampson, 2019). Such disparities in offending rates

would also contribute to racial and ethnic disproportionality in criminal justice outcomes.

This discrimination/behavior dichotomization obscures the role of criminal justice policies in gen-

erating inter-group disparities. Criminal justice sanctions in large part reflect how a given society’s

formal institutions respond to criminal offenses. Moreover, society’s policies for responding to crime

may be mediated by the socioeconomic characteristics of the defendant and the victim. For exam-

ple, some offenses will be punished more harshly than others based on the severity of sentences

prescribed in criminal codes enacted by legislatures. These policy prescriptions often embody the

discretionary decision-making of state legislatures (Bushway & Forst, 2013) and may be based in

part on class or race differences in the rates at which underlying sanctioned behaviors occur in the

population.

As a further example, factors such as criminal history, pretrial detention, and access to quality legal

representation influence criminal justice outcomes in part as a result of policy preferences and imple-

mentation choices. The average race and ethnic differences in criminal history, pretrial detention, and

legal representation raises an important question about racial equity in the de facto weight placed on

these case characteristics. Given that many race and ethnic disparities studies of criminal justice out-

comes find that case characteristics “explain” observed differences, understanding the relative impor-

tance of these factors is central to understanding racial and ethnic disproportionality in the U.S. criminal

justice system.

The punitive shift in sentencing policy in the United States during the latter quarter of the twentieth

century disparately impacted racial groups with high levels of criminal justice involvement (National

Research Council, 2014; Tonry,1995). Although t his mayin part reflect differential treatment, shifts in

policy likely increased the effectiveweight placed on specific case characteristics that differ on average

by the race and ethnicity of the defendant. This implies that the turn toward tougher sentencing policy,

even if implemented in a neutral manner, disparately impacted economically disadvantaged minority

communities with higher rates of criminal justice involvement at the start of this period.

This argument raises the corollary proposition concerning what happens when severity of sentencing

is scaled back. Specifically,does sentencing reform intended to reduce punitiveness disparately impact

racial and ethnic minorities? Moreover, are there particular mechanisms that mediate the differential

racial and ethnic effect of reductions in the severity of punishment?

This article analyzes the effect of a sentencing reform intended to reduce the severity of punishment

for a series of lower levelfelony offenses on racial and ethnic disparities in criminal court dispositions.

We study court dispositions for criminal cases processed by the office of the San Francisco District

Attorney during the period 2010 through 2016. In late 2014, approximately two thirds through our

observation period, California voters passed Proposition 47 (Prop 47) that redefined a set of drug

and property felony offenses as misdemeanors. We analyze racial and disparities in court dispositions

before and after the passage of the proposition with the aim of assessing (a) whether case outcome

disparities narrowed with the change in policy and (b) whether the weighting of case characteristics

changes with the passage of Prop 47 in a manner that disparately benefits racial and ethnic minority

defendants.