Social Solidarity and Sentencing Disparities Between Ethnic Groups: The Case of Hit‐and‐Run Traffic Offenses

• Published date: 01 March 2020
• DOI: http://doi.org/10.1111/jels.12245
• Date: 01 March 2020
• Author: Miriam Gur‐Arye,Roni Factor

Journal of Empirical Legal Studies

Volume 17, Issue 1, 164–185, March 2020

Social Solidarity and Sentencing Disparities

Between Ethnic Groups: The Case of

Hit-and-Run Traffic Offenses

Roni Factor*and Miriam Gur-Arye

Studies of sentencing disparities show that in sentencing for cross-race or cross-ethnic violent

offenses, minority defendants are likelyto be sentenced to harsher punishments when the victim

belongs to the majority group. Our study examines whether the same pattern of sentencing dis-

crepancies is to be found with regard to offenses of omission, the prohibition of which i mposes a

legal duty to come to the aid of a victim; offenses that are based on social solidarity. The dataset

includes all cases in which defendants were convicted of hit-and-run traffic off enses in Israel from

2001 to 2013. The surprising results show that hit-and-run drivers who belong to either the major-

ityorminorityethnicgrouparelikelytobesentencedt o more severe punishments when the vic-

tim belongs to the same ethnic groupthan when the victim belongs to a different ethnic group.

I. Introduction

The effect of race, ethnicity, and nationality on criminal sentencing has received consid-

erable attention. Studies indicate that minority groups in various societies tend to receive

harsher sentences than the majority group. For instance, in the United States, black

defendants often receive harsher sentences for similar offenses than do white defendants

(see, e.g., Ekstrand et al. 1990; King et al. 2010; MacDonald & Donnelly 2017; Petersilla

1983; Quereshi & King 1998; Spohn & DeLone 2000; Steffensmeier et al. 1998; Ulmer

et al. 2016; Wang & Mears 2015).

1

Studies in Israel show a similar discrepancy in the sen-

tencing of Jews, who make up Israel’s majority, and Israeli-Arabs, a minority group com-

prising about 21 percent of the population (Cohen et al. 1985; Hassin & Kremnitzer

1988; Rahav et al. 2016; Rattner & Fishman 1998).

The race or ethnicity of victims also appears to affect sentencing for violent

offenses.

2

In the United States, studies in death-penalty states have found that defendants

*Address correspondence to Roni Factor, Institute of Criminology, Faculty of Law, The Hebrew University of Jeru-

salem, Mount Scopus, Jerusalem 9190501, Israel. Email: rfactor@mail.huji.ac.il

1

For the view that such findings do not necessarily support the conclusion of a racial bias in the U.S. criminal jus-

tice system, see Tonry (1995).

2

A racial effect was found in murder and sexual assault cases but not in robbery and assault (Spohn & DeLone

2000). There is mixed evidence as to the effect of victim in noncapital cross-race offenses; see the review of the var-

ious studies by Ulmer (2012).

164

(white or black) convicted of murdering white victims are more likely to be sentenced to

death than those convicted of murdering black victims (Baldus et al. 1998; Ekstrand et al.

1990; O’Brien et al. 2016). Other studies in various U.S. jurisdictions have found the

effect of race on sentencing to be strongest in cross-race murder or rape offenses, with

black defendants in cases involving white victims most likely to receive the harshest possi-

ble sentence permissible for the crime (Baldus et al. 1983; Curry 2010; Hymes et al. 1993;

LaFree 1980, 1989; Paternoster & Brame 2008; Unah 2011). In Israel, Fishman et al.

(2006) examined how the ethnicity of defendants, victims, and judges affects sentencing

in cases of murder, rape, grievous bodily harm, and armed robbery. They found that the

ethnicity of the judge moderated the effect of the victim’s ethnicity on sentencing: while

Israeli-Arab defendants were more likely to receive prison sentences than Jewish defen-

dants regardless of the judge’s ethnicity, Israeli-Arab judges (but not Jewish judges) were

also more likely to incarcerate Israeli-Arab defendants when the victim was a Jew rather

than an Arab.

The effect of race, nationality, or ethnicity on sentencing for violent offenses sug-

gests that judges and juries might be influenced (at times inadvertently) by the common

perception that minority-group defendants are more dangerous than majority-group

defendants, and that minority-group victims are less worthy of protection by the criminal

justice system (Baldus et al. 1998:1724; Crenshaw 1989). One of the explanations for

these perceptions may stem from social identity theories,

3

according to which individuals

tend to evaluate members of their own group (in-group) positively and members of other

groups (out-groups) negatively. Such evaluations result in out-group distrust and in-

group solidarity (Putnam 2007; Tajfel & Turner 1979; Williams et al. 1999).

The concept of out-group distrust may indeed explain the common perception

that minority defendants pose a greater risk to members of the majority group, a percep-

tion that may influence juries and judges, leading to harsher sentences of minority-group

members in cases of cross-racial or cross-ethnic violent offenses. The findings of Fishman

et al. (2006) might even suggest that judges who belong to the minority group are aware

of the perception that minority defendants pose a greater risk to majority victims, and

determine their sentences in cases of cross-ethnic offenses accordingly. However, does

out-group distrust also affect sentencing for other types of offenses, and in particular, for

offenses of omission the prohibition of which imposes a duty to come to the aid of a

victim—offenses that are built on the notion of social solidarity? “Solidarity,” in the sense

of coming to the aid of other people, also plays a significant role in theories of group

identification, according to which solidarity is stronger among members of the same

group (the in-group) than toward people who belong to a different social group (the

out-group). In-group solidarity is both defined by and contributes to a sense of belong-

ing, psychological attachment to in-group members, coordination with other group mem-

bers, and the internalization of shared codes of behavior (Leach et al. 2008; Putnam

2007; Tajfel & Turner 1979; Williams et al. 1999). The theory of in-group-focused moral-

ity further suggests that members of a given social group feel morally obliged to come to

3

For an additional theoretical explanation, see Baldus et al. (1998:1722–25).

Social Solidarity and Sentencing Disparities Between Ethnic Groups 165