Is the Process the Only Punishment?: Racial–Ethnic Disparities in Lower‐Level Courts

• Author: Marisa Omori,Nick Petersen
• DOI: http://doi.org/10.1111/lapo.12140
• Published date: 01 January 2020
• Date: 01 January 2020

Is the Process the Only Punishment?: Racial–Ethnic

Disparities in Lower-Level Courts

NICK PETERSEN and MARISA OMORI

Although misdemeanors make up the bulk of criminal cases in the United States, the majority

of research on court decision-making examines felony sentencing. In contrast to felony courts,

lower-level courts are characterized by higher case volumes and increased reliance on informal

sanctions, which may contribute to greater racial–ethnic disparities. To assess this possibility,

we examine pretrial detention and case processing outcomes for misdemeanants in Miami-Dade

County, Florida. Utilizing temporal (detention time) and monetary (bond amount) measures of

pretrial detention, we assess whether and to what extent there are racial–ethnic disparities in for-

mal and informal sanctions facing misdemeanants. Results indicate that black defendants, espe-

cially black Latinx defendants, face greater informal sanctions (longer detention and higher

bond amounts), are more likely to be convicted, and experience more severe formal sanctions

than do white non-Latinx defendants. These findings complicate Feeley’s (1979) argument

about lower-level cases, revealing that black defendants are punished by both the court process

and formal sanctions. In this way, “the process is the punishment” for lower-level white and

nonwhite defendants, while the punishment is also the punishment for black defendants.

Racial and ethnic inequalities in US incarceration rates have dramatically risen over the

past several decades, and as a result, black men are six times more likely to be incarcerated

than white men (Sentencing Project 2017). Although much attention has been devoted to

the causes and consequences of racialized mass incarceration in the US, relatively less

attentionhasbeengiventothelarger,andperhaps less visible, forms of criminal justice

social control in lower-level courts (Murakawa and Beckett 2010; Kohler-Hausmann

2018).Duetotheexpansionofbrokenwindowspolicing and other lower-level law enforce-

ment strategies, the misdemeanor arrest rate has increased threefold in recent decades

(Murakawa and Beckett 2010; Lum and Vovak 2018).

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While a large proportion of mis-

demeanants are people of color (Kohler-Hausmann 2018), and racial–ethnic di sparities in

lower-level proactive policing strategies have been well documented (Fagan et al. 2016),

few studies have examined racial–ethnic inequalities in lower-level court processing.

This gap in the literature has important implications for our understandings of racial–

ethnic disparities in case processing more broadly. Misdemeanors and other lower-level

cases differ from felonies in several ways, being characterized by higher caseloads,

We would like to thank the American Civil Liberties Union of Florida and its Greater Miami Chapter. We

would also like to thank our research assistants on the project: Ahzin Bahraini, Rob Cancio, Laura Iesue,

Oshea Johnson, Rachel Lautenschlager, Brandon Martinez, Randon Taylor, Julian Carter, Shanice Hyler, and

Michael Leyva. This project was supported by University of Miami’s College of Arts and Sciences.

Address correspondence to: Nick Petersen, University of Miami, Sociology, 5202 University Drive Merrick

Building, Room 122G, Coral Gables, FL 33124, USA. Email: npetersen@miami.edu.

LAW & POLICY, Vol. 42, No. 1, January 2020

©2019 The Authors

Law & Policy ©2019 University of Denver and Wiley Periodicals, Inc.

doi: 10.1111/lapo.12140

ISSN 0265-8240

greater discretion, weaker pros ecutorial s creening , and increa sed relian ce on informa l

(preconviction) sanctions,

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which might lead to greater racial–ethnic disparities

(Natapoff 2011; Kohler-Hausmann 2013). Thus, prior research on felony sentencing

may not only limit our ability to apply existing theories and findings to lower-level

cases (Feeley 1979; King 2013) but could also underestimate the amount of racial–

ethnic inequality within the criminal justice system by exclusively focusing on formal

(postconviction) punishments while ignoring the role of informal sanctions. In the age

of broken windows policing, lower-level courts have increasingly relied on managerial

strategies of social control as they contend with “mass misdemeanors” (Kohler-

Hausmann 2014, 2018). As such, lower-level defendants may face both punitive sanc-

tions (e.g., conviction and incarceration), surveillance conditions (e.g., probation,

diversion, alternative court programs), and informal sanctions (e.g., pretrial deten-

tion) during the court process.

In his seminal work The Process Is the Punishment, Feeley (1979) notes that the tem-

poral and monetary time costs of the pretrial process can be substantial, and often more

punitive than the formal sanction itself. In the era of growing misdemeanors since the

late 1970s, these pretrial costs may be even more acute, especially in the case of pretrial

detention, which has seen dramatic increases in its usage over time (Open Society Foun-

dations 2011a, 2011b; Myers 2017). Given the uncertainty of how long defendants stay

in pretrial detention (Rabinowitz 2010; Pelvin 2017), and given the fact that many mis-

demeanor cases involve defendants who cannot afford bail (Feeley 1979; Kohler-

Hausmann 2018), the stratifying effects of pretrial detention on social well-being and

case outcomes may be even greater for misdemeanants (Feeley 1979; Heaton, Mayson,

and Stevenson 2017). Despite this possibility, quantitative studies tend to focus on the

effects of binary pretrial detention decisions (whether or not someone was detained

pretrial) in felony cases, with little attention being devoted to the temporal and mone-

tary costs of pretrial detention, particularly in misdemeanor cases.

The current study attempts to fill this gap by examining pretrial detention and

punishment outcomes for misdemeanants from Miami-Dade County, Florida,

between 2012 and 2015. We analyze the temporal (detention time) and monetary

(bond amount) pretrial detention costs facing misdemeanants, linking them to subse-

quent racial–ethnic disparities in formal sanctions (rates of conviction and jail incar-

ceration). Given high misdemeanor dismissal rates and the importance of convictions

for determining whether and how misdemeanants are surveilled (Feeley 1979;

Natapoff 2011; Kohler-Hausmann 2013, 2018), we examine conviction patterns

across racial–ethnic groups. Finally, our analysis of sentencing outcomes sheds light

on racial–ethnic disparities in jail incarceration. We find that black misdemeanants

are punished by both informal and formal sanctions, suggesting that while the “pro-

cess is the punishment” for white defendants, the (formal) punishment is also the

punishment for black defendants.

I. LITERATURE REVIEW

A. MANAGERIAL JUSTICE: SOCIAL CONTROL AND MASS MISDEMEANOR CASE

PROCESSING

Although misdemeanors comprise 80 percent of criminal cases (LaFountain et al. 2010),

research on court decision-making typically focuses on felonies (King 2013). Studies by

Feeley (1979), Kohler-Hausmann (2018), and Natapoff (2011, 2015a, 2015b) represent

©2019 The Authors

Law & Policy ©2019 University of Denver and Wiley Periodicals, Inc.

Petersen and Omori IS THE PROCESS THE ONLY PUNISHMENT? 57