Offender’s Personal Circumstances and Punishment: Toward a More Refined Model for the Explanation of Sentencing Disparities

Abstract

Prior research suggests that offender sex, age, and race are often influential determinants of sentencing outcomes. According to focal concerns theory, they affect sentencing because—due to limited time and information—judges rely on stereotypical behavioral expectations when assessing offender blameworthiness and dangerousness. As such, extralegal offender characteristics may serve as proxies for more specific risk indicators. Whether more complete information on additional risk factors helps account for the effects of extralegal characteristics, however, remains an untested assumption. Therefore, this study analyzes the Dutch data on standardized pre-sentencing reports to examine the influence of personal circumstances of the offender, such as employment, family, and drug use factors, on the likelihood and length of incarceration. The results suggest that personal circumstances exert inconsistent influence over sentencing outcomes and that they fail to significantly mitigate the direct effects of sex and age, but do mitigate the effects of national origin.

Keywords:

• sentencing
• disparity
• decision-making
• risk factors
• local life circumstances

Notes

¹ An alternative explanation is that different groups have similar risk-related circumstances, but that the judge values these risk factors differently for the distinct social groups. However, in a later section of this paper we demonstrate that this does not appear to be the case in our data.

² RISc is also used to gather information on the suitability of prison transfer to lower security levels. Data for this study do not include individuals whose RISc assessments were for prison transfers. Furthermore, 124 suspects were excluded from the data-set because they were younger than 18, and 3,805 suspects were excluded because they were not eligible for an imprisonment sentence. These are the suspects who were acquitted (n = 775) or excused from subsequent legal proceedings (n = 159), as well as offenders sentenced to placement in a youth facility (n = 91), a special penal institution for habitual offenders (ISD) (n = 588), a psychiatric hospital (n = 120), a TBS treatment (a mandatory treatment order for the mentally ill) (n = 44), and offenders whose verdict is unknown (n = 2,028). Another 1,097 offenders (5%) were excluded from the data-set because they lack information on their personal circumstances.

³ An unsuspended imprisonment sentence means that the offender certainly will spend time in prison, whereas a suspended imprisonment sentence only results in prison if the offender breaches the conditions of his release.

⁴ These 11,259 offenders are sentenced to a suspended imprisonment sentence only (n = 6,028), to a community service (n = 3,892), to a fine (n = 1,070), to offenders who were declared guilty while no punishment is imposed (n = 230), and to offenders who were sentenced to another type of punishment (n = 39).

⁵ Three life sentences were recoded to equal an imprisonment term of 30 years.

⁶ A small number of cases (5% of the total) were excluded because offenders lacked information for a majority of items (see Note 5). For the remaining cases included in the scales, only 1–3% had any missing scores on items of a scale, with the notable exception being for the drug misuse scale, which had missing items in 12% of cases. Most of these involved missing information for the item regarding the “motivation to kick the habit of drugs use,” so in these cases the remaining four items of the scale were used.

⁷ One item (having family members with a criminal record) was omitted because it was not highly related to the other items. Removing this item increased the scale reliability from .63 to .68.

⁸ Thrill seeker is a feature of the domain Relationships with friends, because RISc assumes that sensation seekers frequently change friends; they do not pursue long-lasting relationships.

⁹ The mean score for accommodation is reduced because cases with unknown accommodations were included as 0. However, when the mean is only calculated for the offenders whose scores on the accommodation scale are known, the mean score for accommodation is still the lowest of all scales (.29).

¹⁰ To investigate whether the regression coefficients differ significantly between male and female, Dutch and foreign, and young and old offenders, split models were analyzed and z-scores (based on Paternoster, Brame, Mazerolle, & Piquero’s (1998) equation) were calculated to assess whether the effects of the personal circumstances differ by gender, age, or origin (results available upon request by the authors). Our findings show that only very few regression coefficients of the risk-related personal circumstances significantly differ between groups, both with regard to the decision to incarcerate and the decision on the sentence length. This offers little evidence for the alternative explanation of sentencing disparity that suggests judges may differentially value or weigh the personal circumstances of offenders based on their individual demographic characteristics.

¹¹ Additional analyses with the mandatory treatment of the mentally ill (TBS) as the dependent variable show that problems with emotional well-being and with thinking and behavior indeed increase the likelihood of being sentenced to TBS, while drug misuse increases the likelihood of being placed in an institution for habitual offenders (ISD) (results are available from the authors).

Additional information

Notes on contributors

Sigrid van Wingerden

Sigrid van Wingerden is an assistant professor of criminology in the Department of Criminology at Leiden University, the Netherlands. Her research interests include sentencing research, and especially risk assessment and determination of the punishment.

Johan van Wilsem

Johan van Wilsem is an associate professor of criminology in the Department of Criminology at Leiden University, the Netherlands. His research interests include cybercrime victimization, cross-national crime analysis, and sentencing determinants.

Brian D. Johnson

Brian D. Johnson is an associate professor of criminology and criminal justice at the University of Maryland. His research interests involve various aspects of criminal punishment in society, including judicial decision-making.