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«This PDF is available from The National Academies Press at The Growth of Incarceration in the United ...»

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This form of stereotyping, known as “colorism,” places darker-skinned American blacks at a comparative disadvantage in most spheres of life (Hochschild and Weaver, 2007).21 Dark skin evokes fears of criminality (Dasgupta et al., 1999) and is an easily remembered characteristic of a purportedly criminal face (Dixon and Maddox, 2005). For example, an analysis of more than 67,000 male felons incarcerated in Georgia showed that controlling for type of offense, socioeconomic characteristics, and demographic factors, dark-skinned blacks received longer sentences than light-skinned blacks: light-skinned black defendants received sentences indistinguishable from those of whites, while longer sentences were received by medium-skinned (a year longer on average) and dark-skinned (a year and a half longer on average) black defendants (Hochschild and Weaver, 2007, p. 649).

Studies of Afrocentric feature bias take the analysis one step further (Blair et al., 2004). The evidence confirms the hypothesis that stereotypically African American facial features (e.g., dark skin, wide nose, full lips) influence decision makers’ judgments (Blair et al., 2002, 2005; Eberhardt et al., 2004). Pizzi and colleagues (2005, p. 351) measured facial features of

black and white defendants and concluded that practitioners treated differently not only black but also white defendants with such features:

Racial stereotyping in sentencing decisions still persists. But it is not a function of the racial category of the individual; instead, there seems to be an equally pernicious and less controllable process at work. Racial stereotyping in sentencing still occurs based on the facial appearance of the offender. Be they white or African American, those offenders who possess stronger Afrocentric features receive harsher sentences for the same crimes.

Even death penalty decisions are influenced by facial features. Looking at cases in Philadelphia in which death had been a possible sentence, Eberhardt and colleagues (2006, p. 383) “examined the extent to which perceived stereotypicality of black defendants influenced jurors’ deathsentencing decisions in cases with both white and black victims.” With stereotypicality as the only independent variable, 24.4 percent of black defendants rated below the median in having stereotypical black features 21 Colorismis defined as the “tendency to perceive or behave toward members of a racial category based on the lightness or darkness of their skin tone” (Maddox and Gray, 2002, p. 250).

Empirical research on the subject is comparatively new, but the phenomenon is old. Seventy years ago, Myrdal (1944, p. 697) observed in An American Dilemma: The Negro Problem and Modern Democracy, “Without a doubt a Negro with light skin and other European features has in the North an advantage with white people.” Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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were sentenced to death, compared with 57.5 percent of those rated above the median.

The Implicit Association Test (IAT),22 which has been taken by millions of people, was developed by psychologists to assess people’s attitudes toward members of different groups. The IAT results have consistently shown that implicit bias against blacks is “extremely widespread” (Jolls and Sunstein, 2006, p. 971) and demonstrate the existence of unconscious bias by whites against blacks (Rachlinski et al., 2009).23 It would be remarkable if criminal justice practitioners were not affected by this bias.24

CONCLUSION

A number of lessons emerge from this look back at the past four decades of changes in sentencing policy. Successive waves of change swept the nation, some affecting all or most states. During the 1970s, experiments with voluntary sentencing guidelines were undertaken in many states, and all but one state enacted mandatory minimum sentence laws typically requiring minimum 1- or 2-year sentences or increases of 1 or 2 years in the sentences that would otherwise have been imposed. During the 1980s, the federal government and nearly every state enacted mandatory minimum sentence laws for drug and violent crimes, typically requiring minimum sentences of 5, 10, and 20 years or longer. During the 1990s, the federal government and more than half the states enacted truth-in-sentencing and three strikes laws. Almost all of the states now have life without possibility of parole laws. Voluntary guidelines and statutory determinate sentencing laws proved ineffective at achieving their aims of increasing consistency and diminishing racial and other unwarranted sentencing disparities. There is 22 The IAT asks individuals to categorize a series of words or pictures into groups. Two of the groups—“black” and “white”—are racial, and two are characterizations of words as “good” or “pleasant” (e.g., joy, laugh, happy) or “bad” or “unpleasant” (e.g., terrible, agony, nasty). To test for implicit bias, one version of the IAT asks respondents to press one key on the computer for either “black” or “unpleasant” words or pictures and a different key for “white” or “pleasant” words or pictures. In another version, respondents are asked to press one key for “black” or “pleasant” and another key for “white” or “unpleasant.” Implicit bias is defined as faster responses when “black” and “unpleasant” are paired relative to “black” and “pleasant.” 23 People taking the IAT at the Project Implicit website are regularly warned that they may find the results of their own test disturbing: “Warning: This test has been taken more than one million times, and the results usually reveal some degree of bias” (http://www.understandingprejudice.org/iat/ [February 28, 2014]).





24 Almost all demographic groups show a significant implicit preference for whites over blacks. The major exception is blacks: equal proportions show implicit preferences for blacks and for whites, but unlike whites they do not show a preference for their own group. The consensus view of the existence of implicit racial bias is based on the results of millions of tests of every imaginable group in the population.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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little convincing evidence that mandatory minimum sentencing, truth-insentencing, or life without possibility of parole laws had significant crime reduction effects. But there is substantial evidence that they shifted sentencing power from judges to prosecutors; provoked widespread circumvention;

exacerbated racial disparities in imprisonment; and made sentences much longer, prison populations much larger, and incarceration rates much higher.

The policy initiatives that swept the nation were by and large ineffective at creating just, consistent, and transparent sentencing systems. The more targeted approaches—parole and presumptive sentencing guidelines, especially when incorporating prison capacity constraints—were effective.

Both parole and presumptive sentencing guidelines, when well designed and implemented, can demonstrably improve consistency, reduce disparity, and make these critical decisions more transparent. Presumptive sentencing guidelines incorporating prison capacity constraints offer a proven method for setting sentencing priorities, minimizing disparities, controlling prison population growth, and managing correctional budgets.

The evidence discussed in this chapter points to four main findings.

First, law reform initiatives aimed at achieving greater fairness, consistency, and transparency in sentencing have achieved their goals more successfully than initiatives aimed at achieving greater severity, certainty, and crime prevention.

Second, social science evidence on the effectiveness of sanctions and the operation of the justice system informed the development of parole and sentencing guidelines but had little influence on the development of initiatives aimed at achieving greater severity, certainty, and crime prevention. The evidence base on sentencing is broader and deeper now than in the 1980s and 1990s, but the primary findings have not changed significantly since they were disseminated in a series of National Research Council reports between 1978 and 1986.

Third, initiatives aimed at achieving greater severity, certainty, and crime prevention were largely incompatible with fundamental and widely shared ideas about just punishment that have characterized the United States and other Western countries since the Enlightenment. Many of the punishments imposed under the new laws have violated the principle of proportionality—that punishment should be proportionate to the individual’s culpability and the gravity of the offense. Many also have violated the principle of parsimony—that punishments should be no more severe than is required to achieve their legitimate purposes.

Fourth, racial and ethnic disparities in imprisonment reached extreme and unprecedented levels in the 1980s and 1990s and have since remained at deeply troubling levels. They are partly caused and significantly exacerbated by recent sentencing laws aimed at achieving greater severity, certainty, and crime prevention and by law enforcement strategies associated Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

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with the war on drugs. They also result partly from small but systematic racial differences in case processing, from arrest through parole release, that have a substantial cumulative effect. And they are influenced by conscious and unconscious bias and stereotyping that remain pervasive in America despite the near disappearance of widespread beliefs about racial superiority and inferiority.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences T he growth of the penal system and high rates of incarceration did not

occur by accident. As discussed in Chapter 3, they resulted from a

series of policy decisions that were intended to increase the severity of sanctions. Less well understood are the underlying causes of this turn toward tougher sanctions.

This chapter examines the social, political, economic, and institutional forces that help explain why politicians, policy makers, and other public figures responded to changes in U.S. society in the decades after World War II by pursuing harsher practices, policies, and laws—and why they succeeded.

Running through those explanations is a uniquely American combination of crime, race, and politics that shaped the adoption of more punitive criminal justice policies. The salient forces include social and political unrest following World War II, especially in the 1960s; a major electoral realignment as the Democratic Party divided over civil rights and other issues and as the Republican Party became competitive in the south for the first time since Reconstruction; a decades-long escalation in national crime rates beginning in 1961; and major transformations in urban economies that included the disappearance of many well-paid jobs for low-skilled workers. They also include distinctive features of American political institutions, including the election and partisan political appointment of judges and prosecutors, a winner-take-all two-party electoral system, and the use of ballot initiatives and referenda in some states to develop criminal justice policy. These conditions made the United States more vulnerable than other developed democracies to the politicization of criminal justice in a punitive direction.

Copyright © National Academy of Sciences. All rights reserved.

The Growth of Incarceration in the United States: Exploring Causes and Consequences

–  –  –

The shift in criminal justice practices, policies, and laws in the postwar era that resulted in high incarceration rates was distinctive. It was a departure in some important ways from the historical experience of the United States prior to World War II. It was also distinct from the experience of many other Western countries during the latter part of the twentieth century.

Before World War II, the making, implementation, and enforcement of criminal justice policy in the United States were almost exclusively within the purview of the states or local authorities, not the federal government.

From the 1940s onward, public officials and policy makers at all levels of government—from federal to state to local—increasingly sought changes in judicial, policing, and prosecutorial behavior and in criminal justice policy and legislation. These changes ultimately resulted in major increases in the government’s capacity to pursue and punish lawbreakers and, beginning in the 1970s, in an escalation of sanctions for a wide range of crimes. Furthermore, criminal justice became a persistent rather than an intermittent issue in U.S. politics. To a degree unparalleled in U.S. history, politicians and public officials beginning in the 1960s regularly deployed criminal justice legislation and policies for expressive political purposes as they made “street crime”—both real and imagined—a major national, state, and local issue.



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