Expanding Our Understanding of Focal Concerns: Alternative Sentences, Race, and “Salvageability”

Abstract

Research on when alternatives to incarceration are available – and for whom – is underdeveloped. In this study we introduce the concept of “salvageability” as a fourth focal concern guiding the decisions of court actors. In assessing salvageability, actors must consider the casual reasons behind offenders’ criminal involvement and the extent to which those causes can be ameliorated through rehabilitative programming. This process of causal attribution likely exacerbates racial disparity in sentences. We test whether offender race, gender, and prior histories of substance use affect assessments of salvageability as indicated by prosecutor decisions to pre-screen offenders for admittance into an intensive rehabilitation alternative sentence in Pennsylvania using linked data from the Pennsylvania Commission on Sentencing and the Pennsylvania Department of Corrections. Results suggest that black offenders are substantially less likely to be referred for the rehabilitative program even if that referral would be an upward departure from a guidelines-conforming sentence.

Keywords:

• Alternative sentences
• disparity
• drug treatment
• sentencing
• focal concerns

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 See 204 Pa. Code §303.12.

2 204 Pa. Code §303.12(a)(4).

3 18 Pa. Code §§ 2502, 2503, 2506, 2901(a), 3301(a)(1)(i), 3502, 3701(a)(1)(i), 3701(a)(1)(ii), 3701(a)(1)(iii), 3702, 7508(a)(1)(iii), 7508(a)(2)(iii), 7508(a)(3)(iii), or 7508(a)(4)(iii).

4 Judges have the ability to reject this waiver, though in practice they are almost always accepted.

5 Based on recent legislation, the SIP program is now managed by the Pennsylvania Department of Corrections.

6 This intention is further intimated by changes to sentencing options beginning on January 1, 2020: RIP sentencing options are now as “probation with restrictive conditions.”

7 Authors’ analysis of Pennsylvania Commission on Sentencing Annual Files.

8 State Motivational Bootcamp programming also includes access to rehabilitative services, though previous studies have failed to find that participants are successful at avoiding rearrest long term (Kempinen & Tinik, 2011). In contrast, SIP participants have been consistently shown to recidivate at lower rates than matched controls (Milzcik et al., 2020).

9 This differs substantially from the way in which juvenile court decisions have been framed; the explicit focus on rehabilitation and assessments of suitability of programming are inherent to the goals of the juvenile system (Slobogin, 1999).

10 Wheeler et al. (1988), however, found most assessments of community protection to be more in line with incapacitation concerns.

11 A related concern is the defendant’s willingness to participate; racial minorities have expressed a lower preference for non-incarcerative sentences relative to whites, in part because of the indeterminate nature of such sentences (Wood and May, 2003).

12 While individual actors in the system may espouse different beliefs, the criminal justice system largely assumes that drug use is the consequence of choice, in that substance use is subject to rational decision-making and the principles of deterrence apply.

13 There are such few cases that receive downward departures to SIP that we limit our departure models to departures upward.

14 These data were provided by PADOC to PCS as part of the biannual evaluation of SIP.

15 Hispanics and individuals of other race are excluded from the multivariate models due to concerns of statistical power.

16 Preliminary models included each PRS category separately and suggested that there may be threshold effects. Additional analysis found the results to be robust to cut point selection.

17 Other dispositions were rare and were excluded.

18 Given the rarity of SIP referral, it is worthwhile to consider a penalized likelihood model suggested by Firth (1993) . Results are substantively similar to those presented here (see Online Appendix Table A3).

19 This was tested according to Paternoster et al. (1998). This test assumes the covariance of these marginal effects is 0. Mize et al. (2019) suggest this may be appropriate when using mutually exclusive samples, as in this case.

20 Supplemental analysis revealed that more than half of those violent offenses were misdemeanors or Felony 3 offenses.

21 For individuals in Models 3 and 4 (who make up the bulk of our total sample), SIP would be an upward departure. It is possible that our results reflect a reluctance to impose serious incarcerative sentences for this group. Online Appendix Figure 1 shows the frequency of outcomes for those who were not sentenced to SIP in the below-range sample – nearly one-third of this group is sentenced to a term of incarceration. To more fully consider whether our findings may be the result of a disinclination to incarcerate low-level minority offenders, we ran a fixed effects regression predicting the likelihood of receiving any incarceration, using the same controls as in Models 1 and 3. Results (see Online Appendix A4) suggested that black offenders in levels 1–3 were more likely to receive incarceration sentences relative to whites. This suggests that our results from Models 1 to 4 are not the result of a decreased preference for incarceration for these groups but a disinclination toward referring these individuals to treatment programs.

Additional information

Notes on contributors

Miranda A. Galvin

Miranda A. Galvin is a Postdoctoral Scholar in Sentencing at the Criminal Justice Research Center at Pennsylvania State University where she works with the Pennsylvania Commission on Sentencing. Her research broadly considers issues related to criminal prosecution and sentencing, white-collar crime, and issues related to substance use treatment for justice-involved populations. She received the American Society of Criminology’s Division of White-Collar and Corporate Crime’s Early Career Scholar Award in 2019. She completed her Ph.D. in Criminology and Criminal Justice from the University of Maryland, College Park, where she received the Charles A. Caramello Award for Distinguished Dissertation in Social Sciences.

Jeffery T. Ulmer

Jeffery T. Ulmer is Professor of Sociology and Criminology at Penn State University. His work spans topics such as courts and sentencing, criminological theory and symbolic interactionism, religion and crime, and race, disadvantage, and violence rates. He has received funding for his research from the National Science Foundation, National Institute of Justice, the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness, and others. He received the 2001 Distinguished New Scholar Award and the 2012 Distinguished Scholar Award from the American Society of Criminology’s Division on Corrections and Sentencing. He and his coauthors won the American Society of Criminology’s 2012 Outstanding Article Award. He and Darrell Steffensmeier were also awarded the ASC’s 2006 Hindelang Award for Confessions of a Dying Thief: Understanding Criminal Careers and Illegal Enterprise (2005, Transaction).