Revisiting the Normal Crime and Liberation Hypotheses

• Author: Miriam A. DeLone,Jawjeong Wu
• DOI: 10.1177/0734016811436336
• Published date: 01 June 2012
• Date: 01 June 2012
• Subject Matter: Articles

Revisiting the Normal Crime

and Liberation Hypotheses:

Citizenship Status and

Unwarranted Disparity

Jawjeong Wu

1

and Miriam A. DeLone

2

Abstract

The established sentencing scholarship focusing on race/ethnicity and sentencing disparity indicates

that the effect of race/ethnicity on sentencing severity varies across offense types. However, it is not

clear whether this argument holds true when race/ethnicity is replaced with offender citizenship

status as the primary variable of interest. In light of the research gap, this study extends beyond the

existing literature exclusively on race/ethnicity by investigating the nexus between citizenship status,

offense types, and sentencing outcomes through the normal crime hypothesis and the liberation

hypothesis. Using the Monitoring of Federal Criminal Sentences data that include information on all

offenders sentenced in 17 federal district courts for fiscal years 2006–2008, the present study

assesses the independent and interactive effects of citizenship status and offense types on the judicial

sentence length decision. Findings reveal that although models fail to support the normal crime

hypothesis, there is robust support for the liberation hypothesis.

Keywords

citizenship, unwarranted disparity, federal sentencing, liberation, normal crime

It has been more than four decades since the normal crime and liberation hypotheses drew the atten-

tion of scholars in criminal courts and sentencing. According to the normal crime hypothesis, the

regular characteristics of offenses and offenders lead courtroom actors to develop norms of process-

ing a case effectively; as a result, cases may be handled differently, depending on whether a partic-

ular offense is considered typical of the specific group to which the offender belongs (see Hawkins,

1987; Sudnow, 1965). The liberation hypothesis suggests that courtroom decision makers are liber-

ated from legal restrictions and have greater discretion in deciding a case when there is a high degree

of ambiguity about a case or when the seriousness of an offense is low (see Kalven & Zeisel, 1966;

1

Buffalo State College, Buffalo, NY, USA

2

Fayetteville State University, Fayetteville, NC, USA

Corresponding Author:

Jawjeong Wu, Buffalo State College, 1300 Elmwood Avenue, CLAS C114, Buffalo, NY 14222, USA

Email: wuj@buffalostate.edu

Criminal Justice Review

37(2) 214-238

ª2012 Georgia State University

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DOI: 10.1177/0734016811436336

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Spohn & Cederblom, 1991). The two hypotheses have been used to examine unwarranted disparity

in recent sentencing scholarship.

Early researchers applied the two hypotheses to decision making by public defenders (e.g.,

Sudnow, 1965) and juries (e.g., Barnett, 1985; Kalven & Zeisel, 1966; Reskin & Visher, 1986;

Sorensen & Marquart, 1990-1991; but see Devine, Buddenbaum, Houp, Studebaker, & Stolle,

2009), as well as presentencing decisionmaking (Swigert & Farrell, 1977). Researchers have extended

their interest to decision making by judges (e.g., Auerhahn, 2007; Hawkins, 1987; Smith & Dam-

phousse, 1998; Spohn & Cederblom, 1991; Steen, Engen, & Gainey, 2005), prosecutors (e.g., Ball,

2006; Chen, 2008; Sorensen & Wallace, 1995; Tellis & Spohn, 2008), and police (Tellis & Spohn,

2008) over the last 20 years. The extensive literature on the normal crime and liberation hypotheses

has been limited to the extent to which an offender’srace/ethnicity affects court dispositions. In other

words, these studies primarily investigate the interactions between race/ethnicity and offense types.

Researchers, however, have not turned their focus beyond the boundaries of the race/ethnicity

effect. To bridgethe research gap, this study seeksto examine whether and how citizenship status and

offense types interact to affect criminalsentencing outcomes through the testfor the normal crime and

liberation hypotheses.

1

Researchers exploring the relationship between race/ethnicity and sentencing

disparity argue that the effect of race/ethnicity on sentencing severity varies across offense types

(Hawkins, 1987;Johnson & Betsinger, 2009; Spohn & Cederblom, 1991). We extend thisproposition

to argue thatthere is variation across offensetypes in other offender characteristics,such as citizenship

status. We believe that it is theoretically and empirically importantto advance our understandingof the

relationship between citizenship status, offense types, and sentencing outcomes.

Theoretical Framework and Prior Research

Focal Concerns Perspective

Over the past decade, sentencing researchers have used the focal concerns perspective extensively to

explain warranted and unwarranted disparities in criminal courts. This perspective suggests that

judicial decision making is built primarily on three focal concerns—blameworthiness, offender dan-

gerousness, and practical considerations (Steffensmeier, Ulmer, & Kramer, 1998). Approximately

88%of noncitizen federal offenders are convicted of either immigration or drug offenses annually

(e.g., U.S. Sentencing Commission [USSC], 2008). Based on these federal statistics and the tradi-

tional sentiment of violent street crime, there is no convincing evidence that noncitizen offenders

are more culpable, violence-prone, likely to recidivate, and dangerous to the community than citizen

offenders. Therefore, it is not clear whether blameworthiness and offender dangerousness can well

explain unwarranted disparity as a result of citizenship status. Judicial sentencing decisions, how-

ever, may rely on practical consequences. For example, removal proceedings, being designed

uniquely for noncitizens and often following criminal sentencing outcomes shortly, may result in

judges’ unwillingness to sentence noncitizen offenders to probation with a much lower level of

supervision than incarceration. By contrast, judges may believe that due to the existence of removal

proceedings, it is unnecessary for noncitizen offenders to receive a lengthy prison term.

Very few studies have focused exclusively on citizenship status and used the focal concerns per-

spective to explain its effect on sentencing outcomes (but see Hartley & Armendariz, 2011). Most

studies simply treated citizenship status as a control variable. Findings of these studies are inconclu-

sive, due largely to variations in methodology (e.g., national data vs. regional data) and research pur-

poses (e.g., a specific type of offense vs. all offenses). Sentencing researchers found no significant

effect of citizenship status on the likelihood of incarceration (Spohn, 2005) and sentence length

(Demuth, 2002; Everett & Wojtkiewicz, 2002; Kautt & Spohn, 2002; Pasko, 2002). For findings

with significant citizenship effects, evidence reveals that, compared to citizens, noncitizens faced

Wu and DeLone 215