MEASURING AND EXPLAINING DISPARITIESIN FELONYSENTENCES: Courtroom Work Group Factors and Race, Sex, and Socioeconomic Influences

on Sentence Severity
James L Croyle

The author develops a sealing technique for felony sentence severity that includes probation and estimates of expected actual incarceration time in a single metric scale. The author uses the severity measure and nonreactive ease data in a set of statistical analyseswith which he attempts to test recent theoretical developmentsin the trial court literature that posit individual actor effects related to extralegal variables in sentencingdecisionsand the importance of interaction among work group members in those decisions. The findings indicate that differential effectsexist acrossjudges, prosecutors, and defenseattorneys in a court and offer support for the influence of the courtroom work group.

T h e substantive focus of this paper is sentencing behavior in a felony criminal trial court. A major methodological innovation is a sentence severity scaling technique that is economical, reasonable, and applicable in most jurisdictions. T h e major substantive questions are related to the effects of extralegal factors, especially race, on the largely discretionary sentencing decisions. T h e research design is related to Gibson's study of the Fulton C o u n t y Court where he argued that individual judge analyses were necessary to assess racial bias in a court (Gibson, 1978). The design of this study is such that individual attorney and work group analyses are included as well. T h e theoretical f r a m e w o r k of the paper is related to Eisenstein and Jacob's argument that informal work group norms affect criminal court outcomes and that the strength of this effect is a function of work James L, Croyle, Department of Political Science. Washington Universi~. Present address: Bank of New England, Boston, MA.
Political Behavior

Agathon Press, Inc.

Vol. 5, No. 1, 1983

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CROYLE

group stability (Eisenstein and Jacob, 1978). The corollary used here is that the extralegal preferences (e.g., racial biases) of individuals are exacerbated or ameliorated by work group interaction. Critics of criminal justice systems often argue that judges allow extralegal factors--race, among others--to influence their sentencing decisions. In contrast, numerous researchers investigating the question of racial bias in sentencing decisions conclude that when one compares offenses of similar severity and/or controls for a defendant's prior record the race of the defendant becomes inconsequential (Hagan, 1974). 1 Thus, in the absence of an observable bias in court outcomes, they decide that any racism in the criminal justice system must occur prior to the sentencing process. For reasons developed below, such a conclusion is unjustified and may be incorrect. Conceptual and methodological problems abound in the sentencing literature. The measurement of sentence and offense severity is one, an issue addressed in detail below. Level of analysis is another common problem. Sentencing studies often ignore variations in individual judge behavior by analyzing aggregate court level data, If work in judicial behavior has demonstrated anything, it is that differential behavior patterns among judges in a court are to be expected and will be related in some way to "extralegal" attitudes. Specific to sentencing behavior, one judge may hold and exhibit a racial bias, for example, which might be described as antiblaek, while a second judge is problack, and a third judge is neutral. Depending, of course, on the distribution of the cases and the magnitude of the biases of the first two judges, a statistical analysis of the combined cases of these three judges would support the hypothesis that race is not a factor in sententing decisions, while, in fact, for two of the three judges, race is important. Gibson was the first to address this problem systematically, and his study of sentencing in Fulton County, Georgia, demonstrated the point (Gibson, 1978). He found significant pro- and antiblaek behaviors among the individual judges that canceled out in the aggregate court level data analysis. A third, related problem is that scholars doing empirical sentencing studies have focused, nearly exclusively, on the behavior of judges. The work of Eisenstein and Jacob clearly suggests that this limited focus is unwarranted. Eisenstein and Jacob demonstrate that intercity variation in felony case dispositions exists that can be explained by differences in organizational structures and procodures affecting courtroom work group patterns (Eisenstein and Jacob, 1978). The output of criminal courtrooms is not simply a function of judicial behavior but is the product of a courtroom work group, which includes prosecuting and defense attorneys. ~ For purposes of this study, these actors are as likely as judges to have extralegal

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biases that may affect their behavior. Therefore, behavioral differences among these work group members ahould be part of any differential sentencing analysis. Gibson recognizes that other actors are involved in the case disposition process but dismisses them as unimportant participants in the sentencing decision. It is possible that the attitudes of the other actors in the criminal justice system--the prosecutor and the defense attorney--may also exert discriminatory influence because of the prevalence of plea bargaining. These data can be aggregated by prosecutor to generate a discrimination index for each prosecutor. When the index is regressed on the eight prosecutor attitudinal and baekground variables an R2 of .59 results (adjusted R~=.17), a figure considerably below that for the judges. This means that knowing the judges' characteristics allows greater predictability than knowing the prosecutors' characteristics, which confirms the expectation that judges dominate sentencing. (1978) This is an inappropriate assessment of the impact of the other actors. In the first place, the relative domination of judges in the sentencing decision may vary from one criminal justice system to another. More important, particular combinations of behavioral or attitudinal types may have an ameliorating or exacerbating effect on extralegal biases. That is, a judgeonly analysis has its own level of analysis problem. Judge A may behave differently with Prosecutor X in the courtroom than with Prosecutor Y there. By using standard regression techniques on a sample of felony case dispositions for individual criminal justice system actors, we can establish behavioral measures, from appropriate coefficients, which describe differences in magnitude and direction of bias among prosecuting and defense attorneys as well as judges. 3 (The technique will be described more fully below.) Such measures will allow us to analyze the differential sentencing consequences of combining various behavior types in the courtroom work group. The hypotheses to be tested by the data analysis are these: (1) extralegal influences vary in magnitude and direction among all courtroom actors--judges, prosecutors, and defense attorneys; and (2)significant courtroom work group interactive effects are present in sentencing decisions.
VARIABLE MEASUREMENT: SEVERITYSCALES

For purposes of multivariate analyses of microdata sets with small Ns, scales for sentence severity and charge severity are necessary.4 Essentially the challenge is to create a metric scale that will describe the difference in sentence severity between, for example, 1 and 2 years of probation relative

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to the difference in severity between 4 and 5 years in prison; and in charge severity among, for example, legislative limits of 0--5, 2-5, and 0-10 years. Most recent attempts to construct sentence severity scales have relied on subjective techniques. Some researchers have used rough estimates of an individual criminal justice system actor (Lehtinen and Smith, 1974) or a limited number of system observers (Administrative Office of U.S. Courts, 1968; Tiffany et al., 1975), while, more recently, psychometric techniques have been employed (Buchner, 1979). Stipak and MeDavid have criticized subjective approaches to scale construction on a number of dimensions and offer a canonical correlation technique for ascertaining both sentence and offense severity scales from a set of case disposition data (Stipak and McDavid, 1981). To the extent that the subjective scales are offered as descriptions of system behavior their criticism is valid. However, the important consideration is always what purpose the scale is to serve. Stipak and McDavid's scales describe court behavior but have two major flaws. First, the offense and severity scales are functions of each other and, thus, as independent variable measures, have limited value outside the correlation analysis within which they were constructed. Second, and more important, they treat probation as a dummy variable, i.e., 1-year probation is equal to 4 years of probation and always as less severe than incarceration. Criminal defendants, however, sometimes prefer short incarceration to long probation sentences (Lipson and Peterson, 1980). Presumably, the expected deprivation of 6 months in prison is less than that for 5 years on probation (see also Administrative Office of U.S. Courts, 1968). The scales must reflect this fact and certainly must be able to distinguish 1 and 5 years probation.
SENTENCESEVERITY

The sentence severity scale is based on expected incarceration time for a given sentence. For incarceration sentences the scale value will be a function of the average percentage of time actually served by those incarcerated for particular classes of crimes and the number of years assigned to the individual defendant. For probation sentences the scale value will be a function of the probability of probation revocation and the expected incarceration consequences of that revocation. Essentially this gives us a measure of the trade-off point between the pain suffered meeting the probation requirements and the pain of incarceration. The average percentage of time served and probability of probation revocation figures are taken from Missouri Department of Probation and Parole data. s For incarceration sentences, we have the simple equation:

SENTENCE DISPARITIES

t39

s s s v = 4,s

(1)

where SSSV is the Sentence Severity Scale Value (also referred to as Expected Incarceration Time), ~ is the average % of sentence time served by parolees who served time for crime i (i = rape, robbery, etc.), and S is the assigned incarceration time. In Missouri there are two types of probation sentences. Type I follows the stay of an incarceration sentence; Type II is part of a suspended imposition of incarceration sentence. Each must be scaled differently. If Type I probation is revoked then the original incarceration sentence is carried out. If Type II probation is revoked then there is a sentencing hearing and a sentence is imposed. The new sentence may be a Type I probation sentence or an incarceration one.
Type I Probation

The following decision tree helps make intuitive sense of the subsequent equation.

p Probation~=:-_~ (l-p) ~

.------"Probation Revocation---~ ~S No Probation Revocation - -

where p is the probability of probation revocation, S is the assigned incarceration time, and ~ is the average % of sentence time served by parolees serving time for crime i. SSSV = ((I-p)*0) + (p,'~S) = p,~/~S (2)

It is possible that p, the probability of probation revocation, is a function of both the number of years of probation assigned and the probation time remaining. The measurement equation then becomes:
k n

sssv

r~

p.,~.~,s

(3)

n=l

m=l

where p,m is the probability of probation revocation in year n when m years of probation have been assigned, and k is the maximum years of probation assigned in a jurisdiction.

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For purposes of this study, however, data from the Missouri Department of Probation and Parole indicate that p,= is approximately the same for all values of n and m. Furthermore, it is fair to assume that P,m is approximately the same for all probationers regardless of crime committed. Thus the equation simplifies to:
SSSV = t,p~,~+S

(4)

where pt is the probability of probation revocation in a single year, and t is the number of years of probation assigned. Further, with shock time, which is given in some probation sentences, the equation is:
SSSV = (t,p,,~+S) + Y

where Y is the shock time given.

Type II Probation

The scale value of a suspended imposition/probation sentence will be a function of the probability of revocation and the expected severity of the sentence imposed subsequent to revocation. That is, since no incarceration time has been specified, ~+S is unknown. The expected severity of the sentence imposed subsequent to revocation is designated X,. The subscript i indicates that X will in part be a function of crime or offense severity among other things. Thus the equation for Type II probation is
SSSV = (t*pl*X+) + Y

(6)

The value of X+ can be estimated from a subset of the data. X~ will be defined as the average sentence severity scale value observed (SSSV) for crime i excluding all suspended imposition sentences. The sentence received after probation has been revoked when there was originally a suspended imposition of sentence will specify an incarceration time that may or may not be stayed. That is, the felon may receive probation again but not another suspended imposition. The assumption in the technique is that these individuals will be treated approximately the same as defendants who were not given suspended impositions the first time around, including receiving probation at the same rate. The average suspended imposition probation sentence will have a lower scale value than the average probation sentence where an incarceration sentence has been imposed but stayed. While we might expect p~ to be different for Type I and II probation sentences, the Missouri data on revo-

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141

TABLE 1. Sentence Severity Scale Values for Selected Nominal Sentences for Burglary 2"d Scale Value .065 .156 .295 .325 .575 .590 .958 1.770 2.950 5.900 Nominal Sentence Suspended imposition, 1-year probation 2 years stayed, 2 years probation 6 months incarceration Suspended imposition, 5 years probation 3 years stayed, 5 years probation 1-year incarceration 5 years stayed, 5 years probation 3 years incarceration 5 years incarceration 10 years incarceration

cation suggest otherwise. Thus, for the purposes of this paper the following equations will establish the sentence severity scale position for each case:
sssv = ~,s

SSSV = ( t , p ~ , ~ S ) -t- Y
S S S V = (t,pl,X~) q- Y

if incarceration is the sentence if Type I probation is the sentence if Type II probation is the sentence (measured in years)

(7) (8) (9)

Table 1 presents some of the characteristics of the Sentenee Severity Scale. Table 1 illustrates that long probation sentences may be higher on the scale than some incarceration sentences. The scale distinguishes types of probation in a reasonable manner. And the scale distinguishes on the basis of amount of probation time.
CHARGE SEVERITY

The sentence severity scale I outlined above defines system characteristics. Individual perceptions may or may not accurately or even roughly reflect those characteristics. This comports with the thrust of the treatment of sentence severity in the literature. It is generally agreed that we need a measure of what actually happens to convicted felons. The literature treats charge severity somewhat differently. The seriousness of a particular crime is in large part a subjective matter. Many analysts avoid the resulting problems by limiting empirical studies to one area of crime, e.g., armed robber),. The nature of this inquiry prohibits that approach. To keep costs within bounds and still satisfy the requirements of multivariate analyses, cases involving different crimes appear in the data

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TABLE 2. Mean Sentence Severity Scale Values for Selected Offense Severity Scale Values Measured in Years
SSSV OSSV N

.087 .621 .995 1.444 3.620 8.620

.5 2.5 6.0 17.5 20.0 30.0

31 49 129 17 37 9

set and, therefore, a control variable for the nature of the offense is necessary in the regression equation. For this study the offense severity scale will simply be a function of legislative sentencing mandates. Missouri statutes for the period from which we selected data mandated minimums and maximums for each oflense. Thus the seale position for an offense will be the midpoint between the minimum and maximum years specified. The midpoint is chosen rather than some other linear transformation for ease of regression coefficient interpretation. This offense severity scale permits observation of the extent to which the legislative definition of crime severity is correlated with the sentencing outcomes; and, with individual actor level data, the extent to which that correlation varies across individual actors. Table 2 presents the mean sentence severity scale value for each of six offense severity scale values that have a large enough number of cases for means to be trustworthy.
THE DATA

The data consist of a sample of cases drawn from all felony cases disposed of by the St. Louis County Circuit Court between January 1, 1973 and June 30, 1977. All appellate misdemeanors, violations of city ordinances, DWI, and limited driving privilege cases were deleted. A 10% random sample was then generated, yielding 587 felony cases, 506 of which contain sufficient data and thus make up the data set. e The data for each felony case include age, sex, race, and address of the defendant, names of judge, defense and prosecuting attorneys, original charge(s), sentence charge(s), disposition method, dates, prior convictions, and sentence. Data were not collected beyond 1977 because of the complicating factor of criminal code revision in Missouri. St. Louis County is composed of all suburbs surrounding St. Louis City. In 1975 the population of St. Louis County was 960,451, 4.8% of which was black.

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143

White defendants comprise 60 % and blacks 40 % of the sample, while 91% are male and 9% female. The median age of all defendants is 20 years, while the mean age is 22.27 years. Drug-related crime defendants (16.7 % of the sample) are disproportionately white in St. Louis County. Only 13 % of these defendants in our sample were black. On the other hand, blaeks comprised 42.44 % of the nondrug erime sample. Sex crime defendants were white in 90 % of the cases. When we eliminate the drug and sex crimes from the sample, no discernible difference exists between the types of crime charged to black and white defendants. The means and standard errors on the offense severity scale are the same for both groups.
DATA ANALYSIS

There were 21 judges, 28 assistant prosecutors, and 177 defense attorneys in the sample. All the judges were white males. One hundred of the defense attorneys were involved in only one case and an additional 58 were involved in fewer than 5 eases. Somewhat less than 6 % of case dispositions in the sample were disposed of by trial. Of those case dispositions, 1.8 % were bench trials, while 4.2 % were jury trials. As expected, the mean severity of charge was higher for eases going to trial. Seventy percent of the defendants opting for trial were white and older. Only 2 persons were found not guilty. The incidence of dismissal is quite low in the sample. Only 18 cases were dismissed. Thus, the conviction rate in St. Louis County was a high 96 %. The regression model used to analyze the data specifies variables describing defendant characteristics, SES, offense, prior record, and method of disposition in a linear additive equation with sentence severity as the dependent variable. Additionally, the literature suggests that drug and sex crimes may be treated differently from other crimes, so categorical variables were ineluded for those eases. Age, sex (female= 1), and race (black= 1) are self-explanatory, and the scales used to measure offense and sentence severity were discussed above. For scaling purposes, I have used the most serious offense when multiple charges exist and I have simply included a categorical variable for multiple offenses in the model. Similarly, I treat concurrent sentences as single sentenees and add consecutive sentences together for the purpose of scaling sentence severity. For prior conviction the model contains two categorieal variables: one-prior and multi-priors. The third category, no-priors, I leave out of the equation for obvious reasons. Following the lead of Clarke and Koch (1976), I use 1970 census tract median income data as the measure of defendant socioeconomic status. Table 3 presents the regression coefficients for the court level analysis of the data set. There are no surprises in the results. Indeed, the results speak

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CROYLE

TABLE 3. Regression Coefficients--Court Level Analysis Coefficient

OSSV

Standard Error .005 .175 .238 .118 .329 .222 .152 .008 .019 .183 .392

p>t .0001 .0006 .0001 .1773 .0001 .1328 .5114 .0081 .5073 .0001 .0409

One-prior Multi-priors Multieharge Jury Female defendant Black defendant Age

SES

Drug case Sex crime Mean SSSV= .884 R~ = .465 N = 407

.075 .609 1.431 .159 1.799 -.335 .099 .023 -.013 -1.104 -.805

well for the scales. They are consistent with well-established theoretical propositions. Furthermore, the data were analyzed using the scale developed by the Office of U.S. Courts and the fit was not nearly as good: R~ dropped to .38. An R ~ of .465 is modest but reasonable in light of the fact that the model does not include the important variables related to strength of case or evidence, a more precise delineation of the nature of the offense, the attitudes of individual actors regarding seriousness of offense, or effects on victims in each case. The crucial assumption, of course, is that these excluded variables are not correlated with any of the included independent variables. I think that a reasonable assumption. The coefficients reported in Table 3 and all subsequent tables should be interpreted as the increase in expected incarceration time, measured in years, for a unit increase in the independent variable. The unit for Offense Severity is 1 year, as it is for age. SES is census tract median income measured in one thousand dollar units. And the other variables are simply categorical. The coefficient on Offense Severity means that for each 1-year increase in the mean of the statutorily mandated sentence range the defendant can expect, ceteris paribus, an increase in expected incarceration time of slightly less than 1 month. The coefficients on the drug and sex crime variables indicate that those cases are treated significantly differently from other cases. I think it reasonable to conclude that the St. Louis County court actors look upon drug and sex crimes as less serious, relative to other crimes, than did the legislature or whoever drafted and got enacted the relevant statutes. This is not surprising in the drug offense area and, in the

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145

sex crime area, probably not surprising to feminists. Prior convictions are significant in the sentencing decision, but multiple charges seem to have little effect. The jury coefficient is consistent with the literature. Defendants opting for trial receive much harsher sentences, ceteris paribus, than those who do not. As expected, cases going to jury trial have a disproportionately high number of defendants with prior convictions, and seriousn e s s of offense is usually greater (see Mather, 1979). The coefficients of most interest to us are those for variables representing some defendant characteristics that ought not to influence the sentencing outcome. "Ought not" means not sanctioned by the criminal code. Indeed, in some instances differential treatment is speeifieally forbidden by some bodies of law. Age has a small positive coefficient that is statistically significant. (Interestingly, the simple correlation between age and prior convictions is weak.) One way of using the eoeffieient is to note that a 40-year-old will have 5.5 months more expected incarceration time, eeteris paribus, than a 20-year-old. Female defendants appear to be treated more leniently than their male counterparts. While the -.335 eoeffieient is not statistically significant, the standard error is only .222. I'm willing to accept that this means the "real" parameter is a negative one, even though its precise magnitude is unknown. SES and race appear to have no effect on sentencing decisions. A different picture emerges, however, when we run the drug and sex cases as separate data sets. Table 4 presents the relevant results. For the drug cases only, SES appears to be an important factor. The higher income drug offender is treated more leniently. The difference in expected incarceration time between a defendant living in a census tract with a median income of $10,000 and one living in a $20,000 median income tract, ceteris paribus, is 3.5 months. The mean expected incarceration time for all drug eases is slightly less than 5 months. The .02 coefficient on Offense Severity might be interpreted to mean that the difference between sale and possession, while treated as great in the statutes, is not treated as great by the court actors. The coefficient for one prior conviction was not significant. in the sex crime eases, only race seems of consequence among our variables. It should be noted that there are only 15 sex crime eases, 3 with black defendants.
INDIVIDUAL ACTORS

A major thesis of this paper, of course, is that the statistical description of the data presented above, while perhaps useful to summarize court outcomes for some purposes, may hide much of the behavior within the court

146 TABLE 4. Drug Crime and Sex Crime Case Regression Coefficients Drug Crime Case Regression Coefficients Female defendant Black defendant Age SES One-prior Multi-pn'ors Offense severity Mean SSSV-- .40 Coefficient -.230 .025 .019 -.029 .070 .758 .022 Standard Error .170 .205 .014 .013 .175 .222 .006

CROYLE

p>t .1808 .9027 .014 .0355 .6905 .0011 .0016

Sex Crime Case Regression Coefficients Black defendant Age SES One-prior Multi-priors Offense severity Mean S S S V - - .92 Coefficient -2.56 .01 .19 -2.72 -.86 .03 Standard Error 1.44 .08 .30 2.72 2.10 .09 p>t .1365 .8869 .5536 .3636 .6978 .7204

that is of interest to us. It is necessary to supplement these statistics with results from individual actor analyses. Assignment of cases to the various divisions of the circuit court was made on a random basis. Furthermore, the appearance of prosecutors and defense attorneys in specific courtrooms was random. This randomness permits the use of statistical techniques for creating behavioral measures for individual judges, prosecutors, and defense attorneys using a relatively small data s e t / B y utilizing the same model used in the court level analysis, one can analyze a regression equation for each judge, prosecutor, and defense attorney having a sufficient number of cases to satisfy the requirements of the technique, s The coefficients on race, sex, and SES, if statistically significant, will be treated as a measure of the magnitude of the association between these variables and the relevant individual, and the sign will indicate the direction, e.g., problaek or antiblaek. If a coefficient is not statistically significant but the coefficient is larger than its standard error, we cannot be certain that it represents the magnitude of the association, but we can be more certain that the sign is trustworthy. If the standard error of a coefficient is equal to or larger than the coefficient, that result will be inter-

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TABLE 5. Extralegal variable coefficients for Individual Judges

Coefficient/Standard Error Judge 1 2
3

Sex -. 17/.35 --.62/.40

Race .24/.26 -. 16/21 -.65/.23 .27/1.95

.65/2.42

SES -.01/.03 -.08/.06 -.07/.03 -. 36/. 24 -. 13/.28 -.03/. 10 .08/.11 -. 12/.04 -.08/.18 -.03/.03 -.04/.07 -.004/.08 .10/.08 -.3/.5 -.01/.02 -.02/.06 .06L10 -.04/. 10 -.09/. 17

4
5

-2.10/1.87
--

6 7 8 9 10 11 12 13 14 15 16 17 18 19

.31/1.24 --.41/.43 -1.33/1.61 -.23/.66 -.54/.93 -.04/.77 1.29/.57 -.53/.44 -.53/.27 -.62/1.42 -1.07/1.9 --

.24/.86 1.23/.51 -.08/.28 .901.81 -.20/.41 .77/.58 .62/.49 -.23/.33 -1.17/1081 -.31/.25 -. 16/.32 1.54/.85 -1.23/1.06 .68/.56

preted to mean that the individual is neutral with respect to the relevant defendant characteristics. Tables 5, 6, and 7 present regression coefficients and standard errors on the extralegal variables obtained from regression analyses for individual judges, prosecutors, and defense attorneys. Table 5 confirms the thesis that the behaviors of individual judges vary rather substantially.9 The test for establishing a statistical association is whether the standard error has a lower absolute value than the relevant coeffieient. The direction of the imputed bias is determined by the sign [(+) on blaek defendant means antiblack, (+) on female defendant means antifemale, and (-) on SES means anti-lower-socioeconomic class], while the magnitude of the imputed bias is reflected in the absolute value of the coefficient. Table 5 shows that on all three extralegal dimensions variations in behavior exist. On each variable some judges are neutral, while others exhibit "pro" or "anti" behavior. These findings are consistent with what Gibson found in Atlanta with respect to race. The individual attorneys analyses are limited to those who were involved in a sufficient number of cases to allow the use of regression techniques.x0 There were 28 different prosecuting attorneys during the time of

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TABLE 6. Extralegal Variable Coeffieients for Individual Assistant Prosecutors Coefficient/Standard Error Prosecuting Attorney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Sex -1.86/3.32 -.16/.26 -. 16/.25 --2.18/5.97 -. 37/. 74 -1.08/.63 -1.9611.33 .03/. 14 -. 32/. 53
.17/.74

Race .6/2.01 -.09/.16 .35/. 20 -. 12/.30 7.13/3.91 .25/. 62 1.931.68 -.54/.65 .17/. 11 .37/.37 -.03/.42 .87/.37 -1.17/1.40 -3.02/1.90

SES .10/.23 -.03/.03 .0031.03 -.02/.04 .43/. 74 -. 04/. 08 .09/.09 .15/.15 .005t.02 -. 02/.02 -.01/.05 .0008/.069 -.12/.14 -.03/.44

-.60/.47 .88/1.04 --

our sample, 14 of whom had a sufficient number of cases. Of the 177 defense attorneys in our sample, only 13 (11 of whom were public defenders) had a sufficient number of cases. Table 6 presents the results of the regression analysis for prosecutors, and Table 7 presents the results for defense attorneys. Again, we find variations among these actors, some exhibiting neutrality, others statistical associations of varying magnitude and direction on each of the extralegal variables. Relatively few actors, 6 judges, 3 prosecutors, and 3 defense attorneys, have coefficients and standard errors on the sex variable that meet the criterion. Four of the judges and all 6 of the attorneys appear to be more lenient toward female offenders. However, the small number of eases with female defendants is a major problem for testing hypotheses about interactive effects among courtroom work group actors with respect to sex. In order to analyze adequately the effect of sex in felony case dispositions using these techniques, a stratified sample will have to be drawn. The striking aspect of the results of the individual analyses regarding SES is that the association is most prevalent among defense attorneys. Only 3 of the 11 public defenders can be considered neutral. The magnitudes of the coefficients are greater and for the most part more trustworthy than what we see for the judges. Furthermore, SES seemed to be much more important for defense attorneys than any other extralegal defendant characteristic. No prosecutor met the criterion on this dimension. One explanation for the SES finding is that defense attorneys are in the best position to have relevant iuformafion about defendants. Of all the

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TABLE 7. Extralegal Variable Coefficients for Individual Defense Attorneys Coefficient/Standard Error Defending Attorney 1 2 3 4 5 6 7 8 9 10 11
12

Sex -.05/3.95 -.23/.35 .07/4.08 -.26/1.71 ---.49/.63 -1.71/. 51 -1.48/.45 --2.56/.41

--

Race -2.17/2.36 .42/.26 1.42/2.51 .13/1.04 .03/.86 .60/.66 .04/.28 3.56/1.10 -. 19/.20 .26/.68 -.31/.31
2.64/1.42

SES -.42/.41 .03/.05 .07/.37 -. 19/. 16 .08/. 19 .12/.08 -.04/.04 .23/. 14 -.23/.08 .01/.09 -.15/.06 .46/.32 -.02/.04

13

-.58/.65

.79/.42

actors, defense attorneys are the most intimately interactive with defendants. Judges learn some things of relevance to SES from pre-sentence investigation reports, but these reports are not likely to contain the extensive information available to the defense attorney. In short, defense attorneys have the knowledge necessary to implement whatever SES biases they might have. As with race, the court level analysis hid some very interesting behavior related to how higher and lower SES defendants are treated in the court. The data indicate fairly clearly that for some criminal justice system actors defendant SES is very important.
THE WORK GROUP

A second major thesis of this paper is that the sentencing decision is a product of the court room work group. Tables 6 and 7 contain some prima facie evidence that prosecutors and defense attorneys do indeed affect sentencing decisions. The thesis is tested more systematically by analyzing sentencing outcomes when judges, prosecutors, and defense attorneys with identifiable imputed biases are found in the courtroom work group in various combinations. The analysis is limited to race effects because of data limitations. Regression analyses were run for six different combinations of actors. The first three established baseline figures and were done for work groups where all the attorneys were neutral with respect to racial bias and the judges were identified first as antiblack, second as neutral, and third as

t50 TABLE 8. Racial Bias Effects of Work Group Interactions

CROYLE

Work Group Structure Judge antiblack/attorneys neutral Judge antiblack/attorneys antiblaek Judge neutral/attorneys neutral Judge neutral/attorneys antiblaek Judge problaek/attorneys neutral Judge problack/attorneys antiblaek

Black Defendant Coefficient/ Standard Error +.75/.22 +.87/.26 +.171.24 +.67/.31 -.46/.26 +.55/.30

problaek. The coefficient of interest is the one for defendant race. One would expect a positive coefficient on black defendant for the work groups in which we find an antiblaek judge and neutral attorneys, and a small coefficient on black defendant with a larger standard error for work groups in which the judge as well as the attorneys are neutral with respect to black defendants. Ideally, one would compare these baseline results with the results of analyses when the attorney biases were both supportive of and counter to those of the judge and each other. Unfortunately the data are insufficient for such a complete analysis. Data, however, are sufficient to compare each of the three baseline results with results from analyses when the attorneys are not neutral but exhibit antiblaek associations. The null hypothesis would be supported if no change occurred in the defendant race coefficients. That is, the null hypothesis states that the bias of the judge will override the biases of the other actors. Table 8 presents the results of these additional analyses. The results are striking and indicate that the null hypothesis is not supported. The findings are consistent with the thesis that the attorneys are not only important in the sentencing decision, their biases may override those of the judges. Judicial decisions regarding sentencing felons is a function not only of the judge's own imputed racial biases but also of those of the other actors with whom the judge is working. These results are consistent with the most promising theory developments in the criminal justice system literature. Additional empirical work of this type should prove rewarding.
CONCLUSIONS

The major methodological contributions of this paper are the sentence severity scale and the analytical framework that permits inclusion of the imputed extralegal biases of individual work group actors in an analysis of the effects of extralegal factors in felony sentencing decisions. The scale

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permits the inclusion of incarceration and probation sentences in one data set. li The analytical framework moderates, even if it doesn't completely resolve, significant ecological correlation or model specification problems. The results of the data analyses were consistent with recent empirical findings in other sentencing studies that focused on judicial sentencing behavior. Individual actors, including prosecutors and defense attorneys, were found to exhibit differential behavioral characteristics, associated with extralegal variables that were not observable at the aggregate level. The data also indicate that the work group might be important in the sentencing decisions. This finding is consistent with recent developments in organization theory applications to the criminal trial court. At the very least we can conclude that prosecutors and defense attorneys have a significant impact on the sentencing decision. With a modest inferential leap, the results seem to show that individual work group actor racial biases, or lack thereof, have significant consequences for black defendants. When racist actors are combined in the courtroom, racism is exacerbated. When racist attorneys are combined with neutral or problaek judges, the judicial racial neutrality or problack judicial tendencies are often overridden. The limitations of this particular data set prevent exploration of the work group interaction phenomenon more extensively. Indeed, a mathematical measure of the interactive effect has not been developed. But the results obtained are interesting and suggest that additional expenditures of time and money are justified. Additional technical work needs to be done to resolve model specification problems, but I think the techniques employed here are a step in the right direction toward more effective use of nonreactive case file data.
NOTES
1. Hagan reported one major exception. Researchers have found a significant relationship between race and capital punishment. 2. There is no attempt here to distinguish plea-bargained from other eases. Indeed, I think what follows from the Eisenstein and Jacob and Lynn Mather studies is that all criminal court decisions (excluding jury trials, perhaps) are a result of work group interaction that includes negotiations, compromises, and cooperation. The formal structure of the interaction will perhaps make some difference. Whether the bargaining is explicit or implicit may make some difference. Whether the system utilizes charge reductions extensively may make a difference. But these variables are likely to be of more importance in comparative research. 3~ Some readers might objcet to b/as as a label for the statistical associations found in the data. Statistical association is dearly not a direct measure of attitude. Independent, direct measures of attitudes would be preferable. However, Danelski has documented the problems associated with establishing trustworthy, independent attitudinal measures in judicial behavior research, and to date, these problems remain unresolved. The reasonableness of the attitude inferences made from the coefficients is primarily a function of the reasonableness of the specification of the regression equations.

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4. A separate analysis of each individual offense is usually unjustified on theoretical grounds and would obviously increase data coUection costs by increasing sample sizes. And separate analyses of incarceration and probation eases would significantly increase the data coUeotion costs with no appreciable return on the investment. 5. Uniform Parole Reports insure that comparable data are available in any jurisdiction for the construction of the scales that follow. 6. The data set could have been a sample drawn from 1 year or even the entire universe of eases from a 4- or 5-month period without altering the number of data points. A sample from 5 contiguous years more effectively randomly distributes potential, temporally present errors in the data without, at the same time, significantly increasing the number of judges, prosecutors, and public defenders in the data set. 7. There will of course be some overlap, which means we do not have a true statistical model. But that overlap is minimal and the more onerous self-selection factor is absent. Simple correlation coefficients between the ease and defendant characteristics and system actors as well as the correlation coefficients among these judges, prosecutors, and defense attorneys were insignificant. 8. An alternative to subgroup analyses would be to include dummies for each judge, prosecutor, and defense attorney, along with interactive terms for each of these actors, and race, sex, and SES in a single court level equation. It's dear that the inclusion of these actors and the interactive terms, even if limited to the 56 actors who appear in a significant number of cases, creates serious problems with degrees of freedom. Since an analysis of the means of the independent variables in the subgroup analyses shows that there is no significant variation across these subsets of the data, subgroup analysis seems a reasonable solution to the degrees of freedom problem. A more serious problem presents itself because of the theoretical assertion that there are courtroom interactive effects. Since appropriate measures for these effects have not been included in the subgroup analyses, the coefficients may be biased. The saving grace is an assumption of random distribution for the interactive effects across specific actors. One suggested alternative solution to the degrees of freedom problem is a three-step sequential approach beginning with the court level analysis reported in Table 3. Subsequent steps would entail regressing residuals from that analysis on dummies for actors and interactive terms for these actors and race, sex, and SES, and regressing the resultant residuals on dummies for courtroom work groups. Unfortunately, this does not solve the degrees of freedom problem. Step two has a large number of independent variables. More important, constrained data would exist throughout, and misspecified starting points would result in potentially biased residuals. The theory precludes an assumption of randomly distributed individual actor effects with respect to defendant characteristic variables so that the residuals from step one would surely be biased. What follows is a "grin and bear it" analysis with reliance on the assumption of random distribution of work group effects with respect to individual actors. The purpose of this extensive note is to acknowledge the assumptions and indicate that this is probably one of the most pressing technical problems that court scholars face in doing nonreactive data research and analysis. 9. The regression equation was changed somewhat from the equation used for court level analysis. Priors were included as one variable, and multiple charges was dropped as was defendant age. 10. The minimum number of cases was arbitrarily set at 15; the mean was 25. 11. The only theoretical argument for analyzing probation/incarceration decisions separately is the one that probation/incarceration decisions are different from length of sentence decisions (Kress et al., 1976). To the extent that that is true (and I am not convinced), it is a decision model specification problem, not a severity scale problem, and should be handled with appropriate independent variables.

SENTENCEDISPARITIES REFERENCES

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Administrative Office of U.S. Courts (1968). Federal O~enders in the U.S. District Courts 1967. Washington: Administrative Office of U.S. Courts. Buchner, D. (1979). "Scale of Sentence Severi~." Journal of Criminal Law and Criminology 70:182-187. Clarke, S. H., and G. G. Koch (1976), "The Influence of Income and Other Factors on Whether Criminal Defendants go to Prison." Law and Society Review 11:57-92. Eisenstein, J., and H. Jacob (1978). Felony 1ustice: An Organization Analysis of Criminal Courts. Boston: Little, Brown. Gibson, J. (1978). "Race as a Determinant of Criminal Sentences: A Methodological Critique and Case Study." Law and Society Review 12:455-478. Hagan, J. (1974). "Extra-legal Attitudes and Criminal Sentencing: An Assessment of a Sociological Viewpoint." Law and Society Review 8:357-383. Kress, J. M., L. T. Wilkins, and D. M. Gotffredson (1976). "Is the End of Judicial Sentencing in Sight?" Judicature 60:216-222. Lehtinen, M., and Smith, G. (1974). "The Relative Effectiveness of Pubtie Defenders and Private Attorneys." National Legal Aid and Defenders" Association BrieJcase 32:13. Lipson, A. J., and M. A. Peterson (1980). California lustice Under Determinate Sentencing: A Review and Agenda for Research. Santa Monica: The Rand Corporation. Mather, L. M. (1979). Plea Bargaining or Trial: The Process oJ Criminal Case Disposition. Lexington, Mass.: Lexington Books. Stipak, B., and J. C. MeDavid (1981). "Factors Affecting the Severity of Judicial Sentences: A New Research Approach." Mimeo, Institute of Public Administration, Pennsylvania State University. Tiffany, L., Avichai, "i:, and Peters, G. (1975). "A Statistical Analysis of Sentencing in Federal Courts: Defendants Convicted After Trial, 1967-1968." Journal oJ Legal Studies 4:369-390.