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This research paper examines the relationship between race and probation and parole decisions and the issue of racial disparity in granting probation and parole. Previous research suggests that race is an important variable at every level of processing where criminal justice authorities have the power to make discretionary decisions. This research paper focuses on two levels of discretionary decision-making in the criminal justice process and how race affects decisions made at those levels. Probation is an alternative to incarceration that allows the individual to remain in the community maintaining family and community ties, and employment while avoiding the stigma of prison. Parole is granted to an individual who has served a portion of the sentence and is released back into the community to serve the remainder of the sentence under supervision. Statistics consistently show that African-American and Hispanic defendants are less likely to be granted probation and parole and more likely to be sent to prison and stay longer than Whites. While discussing the statistics, this research paper covers possible reasons for this sentencing disparity. Is the disparity based on race or legal variables such as seriousness of the offense and criminal history? Finally, the paper will conclude with suggestions for future research.
Probation And Parole As Corrections Programs
Fundamentals Of Probation
There has been a proliferation of programs designed to be correctional rehabilitation programs. Despite the attacks on rehabilitation and the shift away from the rehabilitative ideal in the 1970s, community-based corrections have continued to proliferate in the United States correctional system. Probation and parole are two of those programs. Many of those in correctional programs in the community are on probation and parole, causing probation and parole populations continue to increase annually. In 2008, approximately 5.1 million offenders were supervised in community corrections programs. Of that number, probationers accounted for 84 % or 4.2 million and parolees accounted for over 800,000 or 16 %. By the end of 2009, the numbers of adults supervised under probation and parole continued to increase, making it clear that probation and parole are important programs in the criminal justice system (Glaze and Bonczar 2010). Statistics for adjudicated juveniles reveal a similar pattern. Probation remains the most common disposition for juveniles who have been adjudicated as delinquent as indicated by 2007 data, showing that 56 % of these delinquent juveniles received probation.
Although probation and parole are used synonymously and viewed as the same, they are very different programs. Probation is an alternative to incarceration where the sentencing judge decides to suspend the imposition of the sentence and place the defendant on probation. The judge and the probationer sign a probation order which constitutes a contractual agreement between the court and the probationer. The probationer must obey all probation conditions to remain in the community under conditional release. The probationer is supervised under the jurisdiction of the court; therefore, all requests for amending the probation order must be approved by the court from which the case originated. If violations occur, the case may be referred back to this same court for revocation proceedings.
While parole also represents conditional release, it is only granted after an offender has served at least one-third of the sentence in prison. After serving the required period of time, the Parole Board may consider the inmate for parole release. If the Parole Board believes that the inmate is ready to return to society, he or she is released to parole supervision with rules and regulations known as conditions of parole. Unlike probation, parole is an administrative matter where the Board of Pardons and Parole has jurisdiction over the inmate. Changes to parole conditions and violations of those conditions are handled by the Parole Board.
Probation is granted by the presiding judge after a review of the presentence investigation report and a consideration of other factors including the severity of the offense; the seriousness of the prior criminal history, sentencing guidelines, the defendant’s age, rehabilitation potential and attitude, and the relationship with his or her family. There has also been controversy regarding the impact of race/ethnicity, gender, and social class on the judge’s sentencing decision. Research findings have been inconclusive about the extent to which these variables influence judges’ decision to grant probation or incarcerate. Some studies have concluded that the strongest predictors of sentencing are severity of the offense and criminal history (Kleck 1981; Spohn and Welch 1987). Other sentencing experts have argued that these variables do affect judges’ decisions in deciding to grant probation or incarcerate. Petersilia and Turner (1998) state that with the exception of drug cases, the type of attorney influences probation granting decisions. Those with a private versus public attorney are more likely to get probation instead of prison. Spohn and Welch (1987) found that in borderline cases where defendants may be sentenced to probation or incarcerated, White defendants will usually be granted probation and Black defendants will be incarcerated.
Fundamentals Of Parole
Approximately 15 % of those going to prison serve their entire sentence. Over 75 % of all inmates are released through either discretionary or mandatory release. Mandatory Release which grew out of the determinate sentencing approach, occurs when the inmate has served the entire sentence minus the good time. When the inmate is sentenced to prison, a “mandatory release date” which includes good time and other credits is calculated during the classification period. When the mandatory release date arrives, the inmate must be released and cannot be held longer than the actual sentence. Mandatory release is presently used by the federal government and those states operating under a determinate sentencing structure. Recent statistics indicate that mandatory releases have surpassed discretionary release by a parole board. In early 2000, forty-one percent (41 %) of the inmates released were granted a mandatory release. Discretionary Release occurs when an inmate is released as a result of decisions made by parole boards or commissions. Until the mid-1970s, all states and the federal government had systems of discretionary release where the parole board determined how much the time the person spent in prison and the time of return to the community. Discretionary release is associated with the indeterminate sentencing structure where the judge sets a minimum and maximum term of incarceration and the parole board determines the release time within these limits. Discretionary parole grew out of the rehabilitation model, releasing a person at a time when he or she would benefit most from being released. Determinate sentencing abolished parole in about 20 states and the federal government.
Race Issues In Probation And Parole
One of the most important controversies in criminal justice and criminology today focuses on whether or not there is disparate treatment of racial and ethnic minorities in the criminal justice system. Blacks and Hispanics are disproportionally represented at every phase of the Criminal Justice System. One area where the disproportionality has been most acute has been in incarceration rates. According to 2009 incarceration data, over 1.6 million prisoners were incarcerated in state and federal prisons, and Black and Hispanic males had highest incarceration rates. Blacks represented almost one million of that total prison population. Black males, who comprised over 40 % of the prison population, were incarcerated at a rate of 4,749 per 100,000, six times the incarceration rate for White males. Hispanic males were incarcerated at a rate of 1,822 per 100,000 Hispanic men. White males were incarcerated at a rate of 708 per 100,000 White men. Do these numbers reflect the existence of racial bias by criminal justice authorities charged with making discretionary decisions? Several criminologists have suggested that there is racial disparity at every level of processing where criminal justice authorities have the power to make discretionary decisions. Police are more likely to arrest, verbally and physically abuse, harass, and profile racial and ethnic minorities. Criminal courts have been accused of promoting not only a racial bias but an economic bias that results in racial and ethnic minorities being denied or unable to afford bail, using court-appointed attorneys, and ultimately receiving more severe sentences. Some criminologists conclude that racial bias by decision-makers does not result in more severe sentencing outcomes for racial and ethnic minorities. Black and Hispanic defendants commit more serious offenses and have more severe criminal histories. Others suggest that even when racial disparities exist, they are not the result of systematic racial bias but the unintended consequences of well-intended crime control policies designed to reduce crime and protect society such as the War on crime and drugs. These “get tough” policies resulted in the unintended consequences of higher arrests, prosecutions, and incarcerations of Blacks who were disproportionately affected (Kleck 1981; Wilbanks 1987; Tonry 1994).
Race And Probation
At the end of 2009, there were over four million adults under probation supervision in the United States. Whites comprised 55% of the probation population while 30 % of the population was Black defendants and 13 % were Hispanic. In some states such as Texas and Oklahoma, the percentage of Whites on probation increases to as high as 69 % and the percentage of Blacks on probation falls to 20 %. It is commonly believed that probation and presentence reports may favor White over minority defendants, causing judges to award probation to Whites more than minorities. Additionally, Whites are more likely to receive probation in jurisdictions where Blacks and Whites receive prison sentences of similar duration. Petersilia (1985) found that in California, 71 % of the Whites convicted of a felony are placed on probation compared to 67 % of Blacks and 65 % of the Hispanics convicted of a felony. In their study of sentencing in Michigan Courts, Spohn and Welch (1987) found that in “borderline” cases, in which judges could impose long probation sentences or short prison terms, Whites were more likely to get probation and African-Americans were more likely to get prison.
Drug policies associated with the “War on Drugs” dramatically increased the number of incarcerated Blacks and Hispanics. Longer sentences for drug users, mandatory sentences for possession of crack cocaine, and reclassifying misdemeanor drug possession of crack cocaine to felony possession resulted in more Blacks being arrested, prosecuted, convicted, and incarcerated for drug offenses. Approximately two-thirds of the drug users are Whites, but Blacks comprise 62 % of those incarcerated for drug offenses. Whites make up only 36 % of those in prison for drug charges (Walker et al. 2004). Blacks are often sent to prison for drug offense and serve as much time in prison for a drug offense as Whites serve for a violent offense. Clear and Dammer (2000) suggest that there is a bias that operates in the selection process for discretionary community programs such as probation that results in Blacks excluded. Black offenders are likely to be young, poor, uneducated, unskilled, and have a more serious criminal history than their White counterparts. Therefore, they are viewed as less suitable for these programs.
Wilbanks (1987) suggests that offense severity and severe criminal histories cause Black defendants to have higher high incarceration rates and lower probation sentencing rates. Black defendants, according to Wilbanks, commit more severe crimes and have more severe criminal histories.
The pattern persists with juvenile defendants; White juveniles may be granted probation while Black juveniles are sentenced more severely. A study of juvenile probation presentence reports reveals that the delinquency of Black juveniles is viewed as the result of negative attitudes and personality disorders, and the behavior of White juveniles is explained as the product of the school and family problems. As a result, White delinquents are sentenced to probation because their behavior problems can be addressed through community treatment and intervention programs. Since personality disorders are less responsive to such interventions, Black juveniles are incarcerated in order to protect the community (Mauer 2006).
The fact that fewer Blacks and Hispanics are sentenced to probation is not only a race issue, but a class issue. More Blacks and Hispanics remain in jail pending trial because they cannot afford monetary bail. Many of these same defendants use court-appointed attorneys and are tried by juries of Whites because Blacks from lower class neighborhoods are less likely to report for jury duty.
Race And Parole
At the end of 2009, there were 800,000 adults under parole supervision in the United States. Forty-one percent of the parole population was White. Blacks comprised 39 % of the parole population, and 18 % of those on parole were Hispanics. Although Black inmates make up approximately 62 % of the prison population, only 39 % of those released on parole are Black.
Findings of previous research reveal that race has an impact on parole release decisions. In a study of racial discrimination in three states, Petersilia (1985) found that Black and Hispanic defendants not only received more severe sentences than White defendants who had similar criminal records and were convicted of similar crimes but consistently served longer sentences than Whites sentenced to prison. Black inmates serve longer sentences, are less likely to receive parole, and often have additional criteria to satisfy. Carroll and Mondrick (1976) discovered racial inequities in parole decisions by comparing those decisions for Black and White inmates. They found that Black inmates not only served longer sentences before being paroled but had to show proof of participation in and completion of some institutional treatment program. This criterion was not required for White inmates being considered for parole. Results of another study found that when first time offenders are being considered for discretionary release, Black first time inmates usually serve 4 months longer than Whites (62 months vs. 58 months) (Hughes et al. 2001).
Some studies suggest that race does not significantly impact parole release decisions. Instead, legal, social, and institutional variables are the most significant predictors of parole release decisions. In a study of 958 youthful offenders, Elion and Megargee (1978) found no differences in the actual amount of time served, but a significantly higher percentage of Whites than Blacks were granted parole. Blacks who were granted parole served a smaller portion of their sentences than did Whites who were granted parole. Blacks who were denied parole served a greater portion of their sentences that Whites who were denied parole. They suggest that these differences are attributed to social, legal, and institutional variables and not race. Scott (1974) initially concluded that Black inmates serve more time and are less likely to be paroled than White inmates. However, when he controlled for the seriousness of the offense, his findings showed that Whites were less likely to be paroled than Blacks, causing him to ultimately infer that parole boards make no distinction between races when considering criteria for parole. Black and White inmates are paroled at about the same rate. In a study of the parole release process in Alabama, Morgan and Smith (2008) found that while race was not a significant predictor of parole release decisions, Black inmates served more time before being considered for parole release. While there were twice as many Black inmates as White inmates eligible for parole release and selected for a parole release hearing, fewer Black inmates were actually chosen for parole release by the parole board.
Conclusions And Future Research
Probation is a correctional alternative that allows convicted defendants to remain in the community under supervision; it is a privilege granted to defendants. Parole is granted to convicted defendants who have been sentenced to prison and served at least one-third of the original sentence. Both practices are designed to promote rehabilitation. When looking at the racial compositions for offenders supervised in these two programs, there is some concern for racial bias by judges and parole board members who are responsible for decision-making at these two levels. While Blacks make up only 13 % of the US population, Black inmates accounted for almost one million of inmates incarcerated in the nation’s prisons. At the same time, they make up 30 % and 39 % of the probation and parole populations. While the question of racial bias is real, other explanations have been offered to explain this racial disparity. Some have argued that incarceration numbers are high because Blacks commit more crimes than Whites. The trend is that the Black arrest rate is disproportionate to the 13 % that they represent in the population. Recent review of arrest rates for index crime reveals that Blacks constituted 40 % of all arrests for violent crime and 30 % of the arrests for property crimes. With the exception of murder and robbery, the actual percentages of crimes committed are higher for Whites. It is also possible that police who use discretion in decisions about arrests could also exercise a racial bias. Other arguments focus on crime severity. According to these arguments, Black offenders commit more violent crimes that usually granted probation. Proponents of this argument point to the fact that UCR data indicate that Blacks comprise 40 % of all of the arrest for violent crimes and make up 50 % and 57 % of the arrest for murder and robbery. It has also been stated that Blacks have more severe criminal histories that make them poor risks for probation and more disciplinary infractions in prison that reduce the likelihood of being selected for probation and parole supervision The War on Drugs disproportionately affected Blacks by increasing incarceration rates for Blacks. In an effort to reduce drug supply, tougher sentencing policies were implemented. One such policy was a mandatory prison sentence for possession of crack cocaine, found most often in the Black community. Even though the numbers of Blacks using drugs fall far below that of Whites, Blacks are most often arrested, prosecuted, convicted, and incarcerated for nonviolent drug offenses.
The fact that Blacks and Hispanics are less likely to be granted probation and parole has implications for individuals, families, and communities. When defendants are granted probation, they remain in the community and are able to keep the jobs that they have or with the assistance of the supervising probation officer, they are able to secure employment to comply with probation conditions. When individuals are incarcerated, it takes them out of the labor force. Once released, they are viewed in a negative manner by employers; most employers are unwilling to hire ex-offenders. Failure to get and maintain suitable employment often results in individuals committing more crimes and being returned to prison. The economic impact affects not only the offender but also dependents. Incarceration affects family stability, the socialization of the children, and the psychological well-being of children. Children feel humiliation, guilt, and shame when a parent is incarcerated, often believing that they contributed to the parent’s incarceration. Children may be labeled and stigmatized. Some recommendations to address this disparity include reserving prison for serious or violent offenders, expanding the use of intermediate sanctions especially for nonviolent minority offenders. There should also be a racial impact statement of every change in justice policy. These statements would prospectively assess the implications the policy shift would have on minority involvement in the justice system so that the policy can be evaluated on the basis of its consequences. Finally, it is evident that more empirical investigation needs to focus on decisions made at crucial decision points in the criminal justice system.
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