Abstract

Excerpted From: Peter S. Lehmann, The Trial Tax and the Intersection of Race/Ethnicity, Gender, and Age in Criminal Court Sentencing, 47 Law and Human Behavior 201 (February, 2023) (References) (Full Document)

One of the most consistently reported findings in the empirical literature on federal and state court processing and sentencing is that cases disposed of at trial receive harsher penalties than comparable guilty plea cases. Although the right to a jury trial is enshrined in the Sixth Amendment to the U.S. Constitution, trials have become increasingly rare, owing in large part to heightened caseload pressure, increased trial complexity, improvements in evidentiary quality, and a shift toward the election of state attorneys. Despite the many criticisms of plea bargaining, guilty pleas, rather than trials, seem to “have become the sine qua non of criminal case processing”. Indeed, estimates indicate that fewer than 3% of cases proceed to trial, and although acquittal is possible, defendants who have been convicted at trial commonly receive substantially harsher sentences than similar defendants who accepted plea deals.

Theoretical accounts of trial penalties emphasize an understanding of courts as social worlds comprised of local work groups that cooperate to interpret and adapt policies and guidelines . Court actors strive to maximize efficiency and minimize uncertainty in case processing, and defendants are encouraged to plead guilty to preserve the court's limited time and resources. Accordingly, the prospect of an especially severe sentence following an unsuccessful trial can be presented to defendants as an incentive to accept a plea offer, thereby helping to ensure high conviction rates, establish standardized “going rates” of punishment, and maintain relationships among courtroom work group members. Under this system, prosecutors largely determine sentencing outcomes, and “judges rarely use their limited powers to curb plea bargains, tending to ‘rubber-stamp’ rather than vigorously scrutinize them” . In contrast, trials shift much of the discretion over sentencing decisions from prosecutors to judges while also providing them with detailed “bad facts” about defendants that can be considered at sentencing, thus further enhancing trial penalties.

It is theoretically plausible that the increased discretionary power and available information afforded judges in trial cases may produce inequities in trial taxes. Indeed, mode of conviction may moderate the effects of other legal and extralegal defendant characteristics on sentencing outcomes, as trials might increase the likelihood that judges will rely on “causal attributions” or “perceptual shorthand” that disadvantage individuals belonging to certain racial/ethnic, gender, and age groups. In this vein, an abundance of prior research on criminal punishment across a wide range of court contexts and sentencing guidelines systems has revealed that young Black and Hispanic males receive disparately harsh penalties relative to other offenders. However, few studies have examined the extent to which these patterns are conditional on other case- or defendant-level characteristics, and it is yet unknown how the uniquely punitive sentencing outcomes experienced by young minority males might vary by mode of conviction.

Using data on felony cases processed in Florida circuit courts, the present study examined whether trial taxes moderate the joint effects of defendants' race/ethnicity, gender, and age on their likelihood of receiving prison sentences as well as the length of the associated incarceration term. In so doing, this research was intended to illuminate a largely neglected potential source of inequalities in punishment, thereby helping to identify an area in which reform efforts might be directed. Before the findings from the analyses are described, the proceeding discussion begins with a conceptual overview of trial--plea disparities in sentencing and a discussion of the theoretical frameworks through which this relationship has been understood. Then, the prior literature on the intersection of race/ethnicity, gender, and age in criminal punishment is reviewed, and the gap in this body of work to be addressed here is highlighted. Finally, possible theoretical linkages between mode of conviction and extralegal disparities in sentencing are considered, and the hypotheses that guided the present study are presented.

[. . .]

Despite the limitations outlined above, the findings from this study underscore the salience of trials as a potential locus of judicial discretion through which inequalities in punishment according to defendants' intersecting identities may emerge. More generally, however, these findings highlight the ways in which racial/ethnic disadvantages in the criminal justice system can be understood as the product of complex interactions among fieldwide policy structures, local praxis, and the perceptions and judgments of individual actors. Moving forward, there is much to be learned from empirical work that focuses on the consequences of these multifaceted processes at many stages of justice system contact and how such outcomes can accumulate in uniquely punitive ways for young Black and Hispanic male individuals. Such research efforts have the potential not only to uncover ways to reduce trial taxes and their racially disparate effects but also to contribute to broader systemic reforms designed to address unwarranted disparities across criminal justice decision points.

Lora Levett served as Action Editor.

Peter S. Lehmann (iD) https://orcid.org/0000-0002-5345-4343