Observing Gender and Race Discourses in Probation Review Hearings

• DOI: 10.1177/1557085120940383
• Published date: 01 October 2020
• Author: Danielle M. Romain Dagenhardt
• Date: 01 October 2020
• Subject Matter: Articles

https://doi.org/10.1177/1557085120940383

Feminist Criminology

2020, Vol. 15(4) 492 –515

© The Author(s) 2020

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/1557085120940383

journals.sagepub.com/home/fcx

Article

Observing Gender and Race

Discourses in Probation

Review Hearings

Danielle M. Romain Dagenhardt1

Abstract

Much of the prior court literature has demonstrated gender and racial disparity exist

across various decision-points. Less understood are the processes that produce this

disparity, particularly in problem-solving courts. This article utilizes 100 observations

of probation review hearings in three domestic violence courts to examine how

judges, probation agents, attorneys, and probationers construct a probationer’s

non-compliance. Using a critical discourse analysis approach, the author examined

how probationers and their actions are constructed based upon gender and racial

discourses. Gender differences in parenting responsibilities, mental health, and

domestic violence discourses emerged, with racial differences in responsibility and

mental health discourses.

Keywords

race, gender, court processing, discourse, symbolic interactionism

Although there has been substantial quantitative research into racial and gender dis-

parities across court processing (e.g., Feldmeyer & Ulmer, 2011; Holleran & Spohn,

2004; Spohn, 2000; Steffensmeier & Demuth, 2001; Ulmer et al., 2016), fewer quali-

tative studies exist. Most common approaches in the quantitative literature for examin-

ing disparities include testing the effects of defendant race, gender, and other

background factors (e.g., age, family status) net of legally-relevant factors. In general,

these studies find that racial and gender disparities exist and may compound across

processing points (e.g., Hauser & Peck, 2017; Spohn et al., 2014; Steffensmeier &

Demuth, 2001). Contextual factors indicative of racial and ethnic threat also are

1University of Wisconsin—Milwaukee, USA

Corresponding Author:

Danielle M. Romain Dagenhardt, Department of Criminal Justice & Criminology, University of

Wisconsin—Milwaukee, P.O. Box 786, 1139 Enderis Hall, Milwaukee, WI 53201, USA.

Email: dmromain@uwm.edu

940383FCXXXX10.1177/1557085120940383Feminist CriminologyRomain Dagenhardt

research-article2020

Romain Dagenhardt 493

commonly found to influence sentencing decisions, albeit in complex ways (e.g.,

Feldmeyer et al., 2015; Wang & Mears, 2015).

Qualitative studies can shed light into the processes of disparate treatment and

underlying power dynamics that quantitative analysis alone cannot (Baumer, 2013;

Ulmer, 2012). Indeed, Ulmer (2012) noted that common approaches to theoretical

tests often fail to include direct measures of the mechanisms that are said to produce

disparity. Much of the seminal literature examined the processes of courts as distinct

communities with unique power-relations, shared norms, and patterned outcomes and

is dated (e.g., Nardulli et al., 1988; Ulmer, 1997). Many of these earlier studies exam-

ined the construction of case facts, circumstances surrounding the case, and defen-

dants and victims by relying on symbolic interactionism (Feeley, 1979; Worrall, 1990)

or discourse analysis (Frohmann, 1998; Merry, 1990). More recent work builds on

these seminal studies to uncover the everyday practices within lower courts that reify

social inequalities (Van Cleve, 2016) and discourses used to construct defendants in

judicial decision-making (Gathings & Parrotta, 2013; Travers, 2007). Examining the

everyday practices of court actors and defendants in hearings allows for a greater

understanding of what factors are viewed as important indicators of culpability,

accountability, and potential for rehabilitation, how judges process this information,

and why judges arrive at their decisions.

Few studies have qualitatively examined problem-solving courts (e.g., Ray &

Dollar, 2013; Travers, 2007), yet the continued growth of non-traditional forms of case

processing warrants investigating whether the power-relations, discourses, and shared

norms found in traditional courts may extend to these courts. Further, domestic vio-

lence courts often have minimal guidelines for sanctioning defendants for non-compli-

ance (Labriola et al., 2010b). With increased discretion, judges in these courts may

rely on cultural scripts that reify gender and racial inequalities when making decisions

on whether to admonish or sanction. The purpose of this article is to examine the inter-

actions of court actors and defendants during probation review hearings in domestic

violence courts to uncover discursive practices that may reproduce gender and racial

inequalities through reliance on racial and gender discourses of domestic violence,

mental health, and responsibility. If gendered and raced discourses exist in these

courts, it would suggest that similar findings in juvenile courts and mental health

courts are not specific to traditional courts and may be common across various types

of specialty courts (Ray & Dollar, 2013; Travers, 2007).

Case Processing as Symbolic Interaction With Discursive

Processes

Prior literature on court processing often examines the reproduction of racial and gen-

der disparity through social worlds frameworks in which law is enacted, negotiated,

and interpreted through patterned social interactions of court actors (e.g., Nardulli et

al., 1988; Ulmer, 1997). Other disciplines approach the study of court processing

through a Foucauldian discourse framework, examining the process through which