Race, Ethnicity, and Trial Avoidance: A Multilevel Analysis
| Author | Rebecca L. Richardson,Jacqueline G. Lee |
| Date | 01 April 2020 |
| Published date | 01 April 2020 |
| DOI | 10.1177/0887403418812998 |
| Subject Matter | Articles |
research-article2018
Article
Criminal Justice Policy Review
2020, Vol. 31(3) 422 –451
Race, Ethnicity, and Trial
© The Author(s) 2018
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Avoidance: A Multilevel
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Analysis
Jacqueline G. Lee1 and Rebecca L. Richardson2
Abstract
Minority criminal defendants are more likely than White defendants to exercise their
right to trial, which is concerning given that research also consistently finds trial
sentences to be harsher than those obtained via pleas. However, guilty pleas are not
the only disposition available for avoiding a trial; pretrial diversions and case dismissals
also serve as mechanisms for trial avoidance. Using hierarchical linear modeling, we
find that Black criminal defendants are more likely than Whites to go to trial rather
than receive other case disposition. Relationships for Hispanic defendants are less
consistent. Fewer county-level effects emerge than expected, providing little to no
support for racial threat theory. Results suggest that Black defendants are less often
able or willing to avoid a trial, a finding which highlights and perhaps helps to explain
racial disparities in final sentencing outcomes.
Keywords
criminal trial, racial threat, ethnicity, criminal court, sentencing disparity
Introduction
More than 20 million cases are filed in criminal courts in the United States each year
(Administrative Office of the U.S. Courts, 2016; LaFountain, Schauffler, Strickland,
& Holt, 2012). For the defendants in these cases, presentence outcomes such as plea
deals, pretrial diversions, and case dismissals are important both because of
1Boise State University, ID, USA
2Florida International University, Miami, FL, USA
Corresponding Author:
Jacqueline G. Lee, Department of Criminal Justice, Boise State University, 1910 University Dr., Mailstop
1955, Boise, ID 83725, USA.
Email: jacquelinelee@boisestate.edu
Lee and Richardson
423
their independent impacts on justice and because of their strong effects on subsequent
punishment (Free, 2002; Johnson, 2003; Schlesinger, 2013). These outcomes, which
all represent alternatives to risky and laborious trials, are a defining part of every
criminal defendant’s experience. Trials can result in longer sentences for defendants
(see LaFree, 1985; Nardulli, Eisenstein, & Flemming, 1988; Ulmer & Bradley, 2006)
and also consume significant resources from both the prosecution and defense
(Bernstein, Kick, Leung, & Schulz, 1977; Johnson, King, & Spohn, 2016). Thus,
ensuring equal treatment throughout the guilty plea, diversion, and dismissal decision-
making processes is essential for maintaining fairness in the criminal justice system.
However, these processes are subject to considerably less oversight and regulation
than punishment decisions. Prosecutors in particular retain immense power to make
decisions regarding charges, plea offers, and diversionary programming, and unlike
judicial decision-making, this discretion is subject to little scrutiny. With few formal
review procedures in place, pretrial outcomes are largely insulated from both public
inspection and legal challenges (Frederick & Stemen, 2012; Free, 2002; Johnson et al.,
2016). Moreover, empirical work on the criminal courtroom focuses heavily on the
determinants and effects of criminal punishment, leaving the role of earlier case pro-
cesses in achieving justice largely unexplained. We have seen limited progress in this
area of research. Much of what is known about equality in pretrial processing, for
instance, is derived from scholarship focused on sentencing decisions, and our under-
standing of the plea process is still “remarkably anemic,” as Johnson and colleagues
(2016, p. 3) characterize it. Ultimately, though, a thorough understanding of courtroom
justice will only be possible with better insight into pre-sentence decision-making.
While scores of studies have evaluated racial and ethnic disparities in sentencing,
reaching a general consensus that unwarranted disparities persist in spite of various
policy reforms designed to more closely regulate sentencing and reduce judicial dis-
cretion (see Baumer, 2013; Spohn, 2000; Zatz, 2000 for reviews), disparities in earlier
case dispositions are often overlooked. Disadvantages for certain groups of offenders
during the guilty plea process, pretrial diversion, and case dismissal processes may
either exacerbate or obscure disparities at sentencing, so closer examination into these
interconnected dispositions is warranted (Free, 2002). This study assists in that
endeavor. Using data from the State Court Processing Statistics, it examines both
racial and ethnic disparities in courtroom dispositions in 40 large urban counties
between 2000 and 2009.
With this study, we contribute to the body of case disposition research in two dis-
tinct ways. First, we conceptualize guilty pleas, dismissals, and diversions as interde-
pendent decision nodes that serve as mechanisms for trial avoidance in the pretrial
process. The decision to dismiss a case after initial filing, the decision to offer or
accept a plea deal, and the decision to agree to pretrial diversion are not made indepen-
dently. Rather, they are a collection of trial alternatives that prosecutors, other court
actors, and defendants jointly mull over during the pretrial process. Disposing of cases
therefore involves a complex interplay between court actor and defendant decision-
making. By incorporating case dismissals and pretrial diversion into our assessment of
racial disparities and pleading guilty, we escape the tendency to treat guilty pleas as
424
Criminal Justice Policy Review 31(3)
the only alternative to trials and provide a more nuanced picture of pretrial decision-
making. Second, this study situates race/ethnicity and guilty pleas within a larger
social context. Much like Franklin’s (2010) evaluation of county-level variation in the
effects of race on case dismissal, in this study, we acknowledge the importance of
community characteristics in shaping the norms and operating procedures of various
courtrooms. We use a multilevel modeling procedure to consider static county-level
racial and ethnic demographics, as well as changes in racial and ethnic demographic
makeup over time.
Prior Empirical Research
Contemporary discourse about prosecutorial discretion and early case processing in
the criminal justice system acknowledges the importance of studying pretrial out-
comes, including plea bargains/offers, dismissals, diversions, and their extralegal
determinants such as race (Johnson et al., 2016; Kutateladze, Andiloro, & Johnson,
2016; Redlich, Bibas, Edkins, & Madon, 2017). Legal factors such as offense severity
and criminal history as well as process factors like evidentiary strength are irrefutably
the most important determinants of pretrial outcomes (Edkins, 2011; Holmes,
Daudistel, & Farrell, 1987; LaFree, 1980b; Rosett & Cressey, 1976; Spohn & Spears,
1996), but broad discretionary power for prosecutors coupled with limited oversight
opens the door for unobserved social inequality in earlier case processing that may
also have substantial effects on subsequent treatment (Hagan, 1974; Kutateladze,
Andiloro, Johnson, & Spohn, 2014; Piehl & Bushway, 2007; Shermer & Johnson,
2010; Wooldredge & Thistlethwaite, 2004). However, due to a lack of quality data and
a slew of policy reforms that centered attention on judicial discretion in sentencing,
empirical research on race and pretrial outcomes lags behind (Forst, 2002; Johnson
et al., 2016).
Guilty Pleas
The ubiquity of guilty pleas in the criminal justice system makes guilty pleas a particu-
larly critical area for empirical scrutiny. The limited research in this area provides
some evidence that minority defendants are less likely to plead guilty than their White
counterparts, though a few studies find no racial or ethnic differences in guilty pleas
(e.g., Kingsnorth, Lopez, Wentworth, & Cummings, 1998; Miethe, 1987; Wooldredge
& Griffin, 2005). In one of the early investigations focused on social disparities in
guilty pleas, Miethe and Moore (1986) argued that research on racial disparities in the
criminal justice process typically ignores the potential for conditional race effects. In
support of this argument, they identified both main and interactive effects of race on
negotiated plea deals in a sample of Minnesota felony defendants, with separate fac-
tors generating disparities for Black and White offenders. Albonetti (1990) built on
this and found that after controlling for various types of evidence, Black male defen-
dants were still slightly less likely than White males to plead guilty in Norfolk,
Virginia. Moreover, the effects of both legal and extralegal factors differentially
Lee and Richardson
425
impacted Black and White offenders in her study. Metcalfe and Chiricos (2018) con-
ducted a similar assessment in Florida, likewise concluding that Black defendants
plead guilty less often and receive sentences that are determined by different factors
than Whites. Their analysis, however, was unable to differentiate between Hispanic
and non-Hispanic White defendants.
Frenzel and Ball’s (2007) evaluation of pleas among both felony and misdemeanor
defendants in Pennsylvania differentiated between...
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