1. 15
Differential Treatment and Wrongful Convictions

2. Introduction
Officials in charge of dispensing justice can get carried away in efforts to punish criminals
This chapter discusses two main problems in the processing of criminal cases:
“Differential treatment”
“Rush to judgment”

3. Introduction
One case may be treated differently than the next for both legitimate and illegitimate reasons
Example of a legitimate reason is the desire to speed up the administration of justice
An illegitimate reason could be flagrant racial prejudice

4. Introduction Offense Seriousness Celebrated Cases
Differential treatment -- it takes longer to hold trials for serious offenses than it does for less serious cases
Celebrated Cases
High profile cases include mass murders and graphic killings.
Most face lengthy, highly-publicized trials
Celebrities, star athletes, and politicians receive plenty of press attention

5. Introduction Defendant Characteristics
Most well-known and unfortunate form of differential treatment is based on race or ethnicity
Discrimination is the unfair treatment of a person or group because of prejudice about race, sex, age, or other distinguishing characteristic
Disparity refers to a difference that does not necessarily involve discrimination

6. Introduction The Rush to Judgment
If an elected prosecutor wishes to stay in office, it is often necessary to take a tough stance toward crime
This can lead to the conviction of an innocent person in the rush to judgment
The rush to judgment is about striving to satisfy the demands of a public that wants its government to be tough on crime

7. Differential Treatment: The Wedding Cake
Criminal trials variations occur based on
Seriousness of the offense
The “status” of the defendant
The wedding cake model originally had three layers: celebrated cases, felonies and misdemeanors

8. Differential Treatment: The Wedding Cake
Figure 15-1 The Criminal Justice Wedding Cake

9. Differential Treatment: The Wedding Cake
Celebrated Cases
Cases involving celebrities or those which receive extensive media coverage
Defendants can benefit from a full-blown, drawn-out criminal trial that can take months
The publicity from celebrated cases can have a negative effect on public perceptions about criminal justice
Walker states policy should not be formed based on celebrated cases

10. Differential Treatment: The Wedding Cake
Misdemeanors
Metaphorical representation of the large number of misdemeanors relative to felonies
Cases are dispensed of quickly in brief trials
Arguably more representative of the true nature of criminal justice in America, but it is the layer most people never see

11. Differential Treatment: Racial and Ethnic Disparities
Researchers have examined racial and ethnic disparities at all stages of the criminal process
Race refers to distinct physical characteristics, e.g. the color of one’s skin
Ethnicity refers to a shared national, religious, linguistic or cultural heritage

12. Differential Treatment: Racial and Ethnic Disparities
Police-Citizen Encounters
Arrests and traffic stops are the gateway to the criminal process
Arrests mark the point where a person formally enters the criminal process
Many traffic stops lead to arrest
If there is evidence of disparity in either step, then the suspects in the criminal process do not represent the population at large

13. Differential Treatment: Racial and Ethnic Disparities
Arrests
Minorities are arrested more, as a percentage of their representation in the general population, than whites
Some studies have found that a suspect’s race is not predictive of his or her likelihood of arrest
Rather, evidence factors, crime seriousness and suspect cooperation were important

14. Differential Treatment: Racial and Ethnic Disparities
Another analysis found police were more likely to arrest when the victim was white and the suspect was black
Stops
Researchers attempt to determine if an individual’s race or ethnicity influences an officer’s decision to stop him or her
Results are mixed; rampant discrimination to none at all

15. Differential Treatment: Racial and Ethnic Disparities
Age and gender are also important factors
It does appear based on the research that race and ethnicity are important some of the time
The Lasting Impact of Terry v. Ohio (1968)

16. Differential Treatment: Racial and Ethnic Disparities
The Pretrial Period
There does not appear to be a clear relationship between race/ethnicity, case outcomes and either:
defense representation
bail decisions
plea bargaining
Racial/ethnic disparities do not seem to be a serious problem

17. Differential Treatment: Racial and Ethnic Disparities
Defense Representation
Minority offenders tend to be less financially secure than white offenders and may need appointed counsel
Bail
There may be racial/ethnic disparities in the bail context
It is not clear that race has a direct effect on either the decision to set bail or sentencing outcomes

18. Differential Treatment: Racial and Ethnic Disparities
Plea Bargaining
Does race affect plea agreements?
Research suggests plea agreements are mostly affected by:
Offense seriousness
The defendant’s prior record
The strength of the evidence
Research has found that white receive better plea agreement deals than minorities

19. Differential Treatment: Racial and Ethnic Disparities
Sentencing
Race/Ethnicity and Sentencing
Evidence suggests that black and Hispanic offenders are more likely to be sent to prison than whites – and for longer periods
Any discrimination that exists is contextual

20. Differential Treatment: Racial and Ethnic Disparities
Drug Sentencing
A number of researchers have found racial/ethnic disparities in sentencing outcomes for drug offenders

21. Differential Treatment: Racial and Ethnic Disparities
Imprisonment and Corrections
Prisons
Table 15-1 Race/Ethnicity Of Male Prisoners Sentenced To State And Federal Correctional Facilities

22. Differential Treatment: Racial and Ethnic Disparities
Jails
While minority representation in the jail population has declined, the over-representation of Black inmates is still troubling
Points to a possibility of racial/ethnic discrimination in bail-setting
Community Corrections
There is a clear discrepancy between the percentage of blacks and whites in the population of probationers and parolees

23. Differential Treatment: Racial and Ethnic Disparities
Figure 15-1
Racial/Ethnic Breakdown Of Probationers
Figure 15-2
Racial/Ethnic Breakdown Of Parolees

24. Differential Treatment: Racial and Ethnic Disparities
Capital Punishment
1972 Furman v. Georgia decided that the death penalty was unconstitutional
The Evidence Before Furman
Blacks, especially those who killed whites, were more likely than whites to be executed
Studies also revealed that the death penalty for rape was largely used for punishing blacks who had raped whites

25. Differential Treatment: Gender Discrimination
Is Gender Discrimination a Problem?
It appears that female defendants receive more lenient sentences than white males
Gender effects are most pronounced in the decision whether to imprison – as opposed to in conviction and sentence length decisions

26. Differential Treatment: Gender Discrimination
Researchers have also looked at interactive effects of race and sex
Steffensmeier conclusions

27. The Rush to Judgment: Wrongful Convictions
The Innocence Movement
In the 1980s DNA testing entered the mainstream
Innocence Project
The mission is to exonerate wrongfully convicted persons through DNA testing

28. The Rush to Judgment: Wrongful Convictions
Progressive Prosecutors
Some prosecutors have taken a strong position that wrongful convictions must be avoided at all costs

29. The Rush to Judgment: Wrongful Convictions
Exonerations
Occurs when a person is wrongfully convicted and later declared not guilty
Four means of exoneration
A governor issues a pardon
Charges are dismissed by the court
Acquittals at a retrial
Posthumous

30. The Rush to Judgment: Wrongful Convictions
Exoneration Trends
The number has increased in recent years
The three explanations for this trend are:
Growing availability of DNA testing
The “newsworthy” nature of exoneration cases
More resources have been devoted to the problem

31. The Rush to Judgment: Wrongful Convictions
Crimes for Which Exonerees Were Convicted
Vast majority are murder, rape or sexual assault