Conditional Race Disparities in Criminal Sentencing: A Test of the Liberation Hypothesis from a Non-Guidelines State

Abstract

Scholars continue to highlight the need for studies that examine not just whether race matters in criminal sentencing, but also how and when race factors into judicial decision-making. To this end, we provide a test of the "liberation hypothesis," in which judges are thought to be constrained when the case facts are unambiguous and the evidence clearly favors one side. Thus, for the most serious crimes and seasoned repeat criminal offenders, judges will feel little choice but to impose severe punishment regardless of extralegal factors like race. Yet, in more ambiguous contexts, judges are "liberated" from the constraints of extreme severity and criminality; in these instances the door opens for extralegal characteristics such as race to influence the sentencing decision. We test this theory empirically using criminal sentencing data from more than 17,000 criminal offenders in a non-guidelines state (South Carolina). Ultimately, we find patterns consistent with the liberation hypothesis, but which differed across the two outcomes of interest. For the incarceration decision, the "black penalty" varied significantly depending upon the offender’s criminal history. At the lower levels of criminal history blacks were more likely than whites to be incarcerated, and the average difference in the likelihood of incarceration varied by 5 to 7 percentage points. For the sentence length decision, we report a statistically significant interaction between the severity of the offense and race with interesting implications for the liberation hypothesis. Black and white offenders were generally sentenced to similar prison terms at the highest severity levels. For the lower severity levels, however, the difference between whites and blacks was significant but small; the black disadvantage grew monotonically across severity levels up until the sharp decline for the most serious felonies.

Keywords: Sentencing, Racial Disparities, Liberation Hypothesis