Disparity and Disproportionality in the Criminal Justice ...

Lauren Knoth, Ph.D.

Sentencing Guidelines Commission

Sept. 11, 2020

Disparity and Disproportionality in the Criminal Justice System

WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY

WASHINGTON STATE INSTITUTE FOR PUBLIC POLICY

Non-partisan research at legislative/board direction

WSIPP Board of DirectorsSenator Andy Billig, Co-Chair

Representative Morgan Irwin, Co-Chair

Senator Marko Liias Representative Chris Gildon

Senator Mark Schoesler Representative Timm Ormsby

Senator Hans Zeiger Representative Larry Springer

Curt Gavigan, Senate Staff Dir. Jill Reinmuth, House Staff Dir.

David Schumacher, OFM Keith Phillips, Gov. Policy Dir.

Sarah Norris Hall, UW Steve DuPont, CWU

George Bridges, TESC Bidisha Mandal, WSUSeptember 14, 2020 www.wsipp.wa.gov Slide 2 of 28

PURPOSE

September 14, 2020 www.wsipp.wa.gov Slide 3 of 28

To better understand the research available on changes in disparity and disproportionality in the United States Criminal Justice System and in the

Washington State Criminal Justice System.

Three main questions:

1. What do we mean when we talk about disparity or disproportionality? Where are the “pressure points” in the system?

2. How have policies in the United States affected disparities and disproportionality in the criminal justice system?

3. What do we know about disparity and disproportionality in Washington State?

KEY TERMS

Discretion: freedom/leeway an individual or an organization has to make decisions

Disproportionality: when the proportion of a group within the control of the system is greater than the proportion of such groups in the general population. This is a state of being.

Disparity: when the ratio of one group experiencing an event is not equal to the ratio of another group who experienced the same event. This is about equality in treatment.


KEY TERMS

Disparity: when the ratio of one group experiencing an event is not equal to the ratio of another group who experienced the same event. This is about equality in treatment or outcomes.

Disparate treatment

Disparate impact

“Warranted” vs “Unwarranted” disparity


TYPES OF DISPARITY AND DISPROPORTIONALITY IN CJ

Racial/ethnic

Gender

Geography (urban/rural; inter-court)

Age

Socioeconomic status

Interactions of any of the above


UPSTREAM AND DOWNSTREAM


General population Social structures: Residential segregationEducationEmploymentEtc.

“Upstream Disparity and Disproportionality

UPSTREAM AND DOWNSTREAM


General populationArrest

Policing

Charging

Public vs. Private Defense

Pretrial release

Conviction:Plea bargaining

& trial

Sentencing

Release/

A SYSTEMS APPROACH


Source: Knoth et al., 2020

w.un.@d and

released

Compl.airit dismiissed

R@f@ned to

community program

Charg s filed

Charge,-s, dismissed

Formal diversion

Ill!"'!!!! _. ,!"!!!I 11!"'!!!1 -

I I

I

No guilt

Guilt

Def@n@d disposi ·on

[RCW 13 . . 0.127]

_..,

Locail sanctions

.llu~nile Rel-\abili tat ion

-----,

Dl;spositiorn a[te @

fCD DA; MHDA; SDA; SSODA)

[ROAi 13..40.0357)

US ARRESTS OVER TIME


U.S., A.nr,est Estin1 ates

Arrest Rat es of A ll Pe r so ns f or A ll Offenses

5,000

VI ~ 0 VI 4,000 !... oJJ

CL

0 0 0 o' 3,000 0 ,-I

!... oJJ

CL VI -VI 2,000 oJJ !... !...

~

1,000

0-+------~------~------~-----~------~-----~------~ 1 980 1 98 5 1 990 1 99 5 2000 200 5 20 1 0 20 15

US INCARCERATION OVER TIME


160,000.0

140,000.0

120 ,000.0

100,000.0

ao,omm

60,O0l:ilO

40,O0l:ilO

20,0000

0

U.S. State and !Federal Prison !Popu atio1n, 1925-201a

I ~ : i ,.... - - ,....

q, q,

201 8; 1 4-'14, 162

US CJ SUPERVISION OVER TIME


!Population Under Control of the lLS. Conecf ons System, 11980 and 2016

1980: 1,842.,100 individuals 2016: 6,613~500 individuals

Piris.on

2m16

740.:roo

82288 - Jail

220.43-8 -Parole Prnbatiion

US RACIAL DISPROPORTIONALITY IN INCARCERATION


Source: Pew/BJS

UNITED STATES TOUGH ON CRIME MOVEMENT


Decades of Change

1970s “War on Drugs”

• Nixon Passage of the Controlled Substances Act; Declaration of drug abuse as “public enemy number one.”

• Increased funding for drug-control agencies and law enforcement. Changes in policing, particularly for drug crimes.

• Passage of mandatory incarceration for some drug crimes.• Promotion of drug-free school zones.• Martinson publication – “nothing works” in rehabilitation.

1980s “Just Say No”

• Reagan expansion of War on Drugs.• 1984 Comprehensive Crime Control Act – abolished federal parole.• 1986 Anti-Drug Abuse Act – mandatory minimum prison sentences for

non-violent drug offenses. Included the 5-500 crack-cocaine laws. • 1987 passage of the US Federal Sentencing Guidelines.• Shift toward determinate sentencing.• Expansion of LWOP.

1990s Violent Crime Crackdowns

• Violent Crime Control and Law Enforcement Act of 1994.• Increased number of individuals sentenced to prison & avg prison time• Truth in Sentencing • Expansion of three-strikes laws.• Proliferation of state sentencing guidelines.

UNITED STATES TOUGH ON CRIME MOVEMENT


Decades of Change

2000s Focus on What Works

• Second Chance Act – expanded emphasis on job training and placement, housing assistance, and mentoring.

• Nationwide investments in evidence-based CJ programs• Supreme Court Decisions challenging mandatory sentencing

guidelines. Federal system (and many states) move to advisory guidelines.

• Use of risk assessments in policing, courts, and corrections

2010s Addressing Mass Incarceration

• Fair Sentencing Act – addressed disparity in drug sentencing (notably crack-cocaine)

• Federal consent decrees on police corruption• Task Force on 21st Century Policing• Changes in policing strategies, like stop and frisk in NYC• Presidential Commission on Mass Incarceration• First Step Act• Expansion of risk assessment instruments – integration of dynamic

assessments, use of assessments at sentencing

EXPLAINING DISPARITY


Potential causes

Differences in offending behaviors

• If the rate of offending is higher for one subgroup than another, then disparate impacts may be expected.

• Research has dispelled some of these theories using self-report offending data.

• Other research finds that, after accounting for differences in arrest (as a measure of offending), there is still unexplained disparity in final sentencing outcomes.

Implicit or Explicit Bias

• Stereotypes may consciously or subconsciously impact perceptions of “dangerousness” or “blameworthiness.”

• Stereotypes about populations can inform everything from policing strategies to sentencing decisions

Structural disadvantage• Disparate social conditions lead to higher crime rates in certain areas. • Residential segregation, concentrated disadvantage/poverty, unequal

access to quality education and employment, etc.

“Tough on Crime” legacy effects

• Criminal history persists, despite criminal justice reforms. • Longer criminal histories account for a significant portion of today’s

mass incarceration.

WASHINGTON STATE


0

1

2

3

4

5

6

1930 1940 1950 1960 1970 1980 1990 2000 2010 2020

Inca

rcer

atio

n R

ate*

The Adult Prison Incarceration Rate in Washington and the United States

United States Incarceration

Rate

Washington's Incarceration

Rate

*The incarceration rate is defined as the number of inmates in State or Federal prisons per 1,000 resident population in Washington or the United States.

Washington State Institute for Public Policy, August 2020 Source: WA Caseload Forecast Council and Bureau of Justice Statisti

WASHINGTON STATE


0

10

20

30

40

50

60

70

80

90

100

1980 1985 1990 1995 2000 2005 2010 2015

Crim

e Ra

te p

er 1

,000

Reported Property Crime RateWashington & the United States

United States

Washington State

Source: Uniform Crime ReportsWashington State Institute for Public Policy, Dec. 2018

WASHINGTON STATE


0

1

2

3

4

5

6

7

8

9

10

1980 1985 1990 1995 2000 2005 2010 2015

Crim

e Ra

te p

er 1

,000

Reported Violent Crime RateWashington & the United States

United States

Washington State

Washington State Institute for Public Policy, Dec. 2018 Source: Uniform Crime Reports

POLICY CHANGES IN WASHINGTON STATE


Changes Over Time

1981-1984

• Legislature enacts the Sentencing Reform Act, shifting to a determinate sentencing structure, abolishing parole

• State adopts Sentencing Guidelines Commission’s recommendations for a determinate sentencing grid. Moves toward truth-in-sentencing model.

1985• First change to sentence lengths in the grid. Washington Cattleman’s

Association – theft of livestock. • Established “theft of livestock” and increased presumptive ranges.

1992

• [Spring] First bill in the United States to establish a three strikes law put forth in the Legislature, but fails.

• [Fall] Three strikes ballot initiative passes with over 75% of the state vote

1994 • “Hard Time for Armed Crime” – firearm and deadly weapons enhancements

1995-1999 • Establishment and expansion of DOSA.



Source: WSIPP, 2003Source: Boerner & Lieb, 2001

6 --.----------,

5

4

For a xam pie , the ad1 c

was 2.3 par 1000 18- 0

an lncra as a of 137 "5 Cf

Q.

1L

! !000 +------.r.

: I 3

1 ,Jlllrve n1ile s In SI

o---------960 965

!Do.l'll!ialiahnffi': dalia f1m co.LIi~ IDci:o.hnerr .2CilQ2· oo.L.1111 ( dalia

e 3C!OO &Ji .5

. am

I ! I I I I I I Fl■c.al Var

Ach.llr · t111 tC;Q ll 1111.y JIL Is

es in Cou1nty Dot e 111tlc,n

21r o. re f o:r the 12 ln!D.nths e 1r.g

DISPARITY FOLLOWING SRA IN WA

• Engen, Gainey, Crutchfield, and Weis (2003) o Sample of adult felony sentences from July 1989 through June

1992o Examined discretionary departures and structured sentencing

alternatives (Alternative Sentence Conversion, FTOW, and SSOSA)

• Findings:

• 85% of sentences fell within presumptive range

• Legal, offense-related characteristics increased the use of upward departures, but less so for downward departures

• White defendants, females, older defendants, and those who plead guilty were substantially more l ikely to receive downward departures

• Hispanic defendants and those convicted in trials were more l ikely to receive upward departures




Changes Over Time

1999-2000• Offender Accountability Act” – increased discretion for correctional

officers.• Established a risk-based supervision model

2002

• Legislature adopts drug offense sentencing grid with intent of:• Decreasing time spent in confinement for drug offenses• Increasing the use of substance abuse treatment with funds

allocated to a criminal justice treatment account

2003 • Legislature increases earned early release time for non-violent property and drug offenders from 33% to 50%

2004 • Blakely v. Washington SCOTUS decision limits judicial discretion for aggravated sentences

2010 • Provisions expanding earned early release time sunset.

2014`• Justice Reinvestment Initiative

• Policy recommendations included policing, sentencing, and corrections reforms

WASHINGTON STATE - UPSTREAM


Source: WASPC/OFM

Arrests by race, per 1,000

White BlackAmerican

Indian Asian2000 44.48 170.22 109.53 18.532019 30.58 128.09 57.12 15.67

WASHINGTON STATE


0

1

2

3

4

5

1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010 2015 2020

Adult Incarceration Rates in Washington

Department of Corrections

County Jail

*The incarceration rate is defined as the number of inmates in State or Federal prisons per 1,000 resident population in Washington

Incarceration Rate*

WASHINGTON STATE


Rate of felony sentences per 1,000 in the population

FY 2019:Black: 17.02White: 5.90All other: 3.39

Source: Caseload Forecast Council

25

20

15

10

5 -0

1990

-Black

All Other I ~ -- ...... ~~-- --

\f lh t.e

2000 2003

WASHINGTON STATE - DOWNSTREAM


Source: BJS

Incarceration rates per 100,000 by race (2016)State White Black HispanicOklahoma 580 2625 530Idaho 458 2160 619Oregon 366 2061 395State Average 275 1408 378Washington 224 1272 272Hawaii 246 585 75

CONCLUSION


• Singular policy reforms in the criminal justice system have rarely had a significant impact on overall disparit ies or disproportionalities. Exceptions are those that target explicit , known causes of disparate treatment – e.g. , crack v. cocaine sentencing discrepancies.

• There is l imited information on disparity across the criminal justice system in Washington, but Washington does appear to have lower rates of disparity than other states.

• Additional, comprehensive research is needed to understand where disparit ies exist and how policies have impacted those differences over time.

THANK YOU

Questions?

September 14, 2020 http://www.wsipp.wa.gov Slide 29 of 28

Hydraulic Displacement of Discretion

Underlying premise: a certain amount of discretion exists in the sentencing process and is distributed between different court actors (e.g., prosecutors and judges)

When you decrease discretion in one area, you increase it in another area.

Key question to keep in mind: Where does discretion go when it is constrained in a given area?

Source: Miethe 1987; Walker 1993


HYDRAULIC DISPLACEMENT OF DISCRETION

Example NY Drug Laws:• 1973, NY legislature thought prosecutoria l discret ion was undermining

tough sentences on drug crimes. In response they restricted prosecutor ia l discret ion by passing a ban on pleas to lower charges for anyone charged with a Class A1 drug offense (mandatory sentence of 15-25 years to l i fe) . Charges for lesser felonies could not plea to Misdemeanor. Championed as one of toughest laws on drug crimes.

• Real effects:

• Drug arrests resulting in indictment dropped from 39% to 25% (prosecutors less l ikely to f i le in it ia l charges)

• Convictions fell from 86% to 80% ( judges and jur ies less l ikely to convict)

• Net result : overall percentage of drug arrests resulting in convictions fell from 33.5% to 20%. Cases that were previously plea bargained down were either dismissed or beaten through acquittal .


UNDERSTANDING DISPARITY AND DISPROPORTIONALITY

http://www.wsipp.wa.gov Slide 32 of 28

Race 1 Race 2Population

10% 90%

50%

Comparing sentencing outcomes to population percentages may indicate significant disproportionality at sentencing. But is it representative of disparity at sentencing?

Race 1 Race 2

50%

Sentencing

September 14, 2020




Race 1 Race 2Sentencing

10% 90%

50% 50%

Race 1 Race 2Burglaries

Race 1 Race 2Reported to Police

Race 1 Race 2Arrests

Race 1 Race 2Initial Charge -Burglary

25% 75%

Disproportionality or Disparity at Sentencing?

Race 1 Race 2Final charge -Burglary

September 14, 2020





10% 90%

50% 50%





25% 75%



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--II I





10% 90%

75% 25%





25% 75%



September 14, 2020

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