Iesha Javed

Disparity in sentencing is itself a major ethical issue with regards to disparity faced by Hispanics and the evident out group bias existent against them. That the US judicial system has allowed for such bias to be systematized is surprising, given its claims to be ethically fair and just for all. The injustice and bias faced by Hispanics during trials and later during incarceration undermines the claims of US criminal justice system. Finally, in 2008 after decades of research papers that have been identifying the need to study sentencing disparity with regards to offender’s socio-economic status (SES) and social class, Esqueda, Espinoza, and Culhane in a study on what affects judges’ decision making considered ethnicity, SES and crime status as important factors. This study is one of the few that specifically tackles the issue of the majority white and minority Hispanic population as two competing entities in criminal justice systems in US. The study found that when white Europeans passed sentences on Hispanic offenders in a mock session, they tended to pronounce harsher punishments irrespective of crime status with greater bias being evident towards Hispanic offenders from a lower SES. However, the Hispanic mock jurors displayed no significant bias towards White offenders (181). Such findings lead one to question whether at all the large number of incarcerated Hispanic offenders actually were worthy of such punishments and whether racial bias has led to such unethical criminalization and stereotyping of a racial minority. It has been said that federal sentencing guidelines are more to blame for the plight of Hispanic offenders as opposed to state sentencing guidelines. The reason that federal sentencing guidelines are problematic (Frase 46) is because their accuracy and ethical standpoint itself is questionable. This is because such guidelines tend to be based on generalizations and assumptions about offenders that disregard their SES, racial background and other factors, while in reality there is great variation of how racial minorities fare across American states (Esqueda et al. 182). Thus, a system of sentencing guidelines that fails to consider realities and challenges of Hispanics as a racial minority and underrepresented group are in themselves unfair and unethical. On the other hand, states know local demographics better and a state-specific sentencing manual can consider all state wise trends of racial groups, their economic status, level of education etc. The need for state-specific sentencing guidelines (Frase 46,50) and their ethical basis is rooted in the notion of utilitarianism in the sense of looking at every racial group as a unique entity with specific histories, current challenges, needs and privileges, and then ensuring that the benefits of justice always reach as many of the competing individuals and groups as possible. Thus, a case for a more ethical system of criminal justice would require policies that reflect their historical problems, current issues and future aspirations of all competing entities. This ethical perspective would help create a more just form of criminal justice. Another aspect of a typical court’s sentencing process that involves much ethical debate is prosecutorial discretion (Rhodes 2015, Frase 1993). When considering the ethical undertones of the discretionary power of judges two conflicting ethical paradigms arise. On one hand, judicial discretion can be argued to create room for bias, in group favoritism and out group bias particularly against Hispanics when the judge is a white European. On other hand, it is necessary to give situation specific and state specific sentences in line with the plight of marginalized groups who have historically been ill-treated and this seems possible only through a good measure of judicial discretion. Thus, judicial discretion though bent towards creating bias against minority racial groups is still necessary to ensure ethically sound sentencing and perhaps a balance between the two aspects can be achieved by limiting the discretion to aspects of reducing sentences and making concessions for the offender and not vice versa. In fact, the social acceptance of the notion of imprisonment calls for some serious ethical enquiry as it reflects a growing punitiveness among the public which will serve only to blind justice and create unethical bias against offenders (Enns 858). It can be argued on ethical grounds that the notion of confining a human being in prison more so a person of a minority religious group exposes them to more harm than good. Also, incarceration and recidivism can be seen as a failure of the system rather than that of individuals. Further the trend of maintaining a steady prison labor while keeping incarceration rates high is itself a condemnable trend. Further the ethical dilemma of greater number of blacks and Latinos languishing in prisons, although they are minorities, is itself subject to criticism. Further, other alternative crime control and correction practices are also ethically contentious. The unethical practice of reform programs accepting only low risk inmates for correction is for instance a major issue (Lowenkamp and Latessa 284). Whether it is right for authorities to allow correctional programs to pick and choose which offenders they can accommodate is itself debatable. Such practices enable such facilities to accommodate their favorite candidates among the white majority while leaving Hispanic and black offenders often with no other option but incarceration or a ghettoization within prisons and behavioral correction facilities. Also, another ethical problem with imprisonment lies in the fact that prison time may actually defeat the very purpose of such punishments. The practice of placing an offender among criminals further reduces changes of correction and improvement. Related concerns include the failure of authorities to prevent violence against offenders in prison facilities in addition to instances of racial bullying and sexual assault. Given the lack of data, the ill treatment of minorities in US prisons such as disparity in facilities, food and other basic rights as well as their exposure to sexual abuse etc. needs to be thorough studies particularly for offenders from low SES Hispanic backgrounds. Such a study would reveal whether the disparity faced by SES Hispanics extends well beyond the courts into the prison system which is another important agency of the incarcerationist and punitive model of criminal justice, that fails to do any justice at all. Further, there is a need to collect data and examine statistics regarding income generated from prison facilities from forced labor and to measure as to which extent the US criminal justice system might actually be keeping crime alive to keep the system running, finding easy targets in the form of offenders from Latinos and blacks in the process. Also, the psychological and socio-economic impact of incarceration on Hispanic offenders and their families need to be studies particularly when they come from lower SES backgrounds. More importantly, the impact of unjust sentencing on the psyche of the offender and his/her future chances of recidivism need to be studied. This aspect includes carrying out empirical studies of the Hispanic offenders’ level of trust on the criminal justice system with state-wise cases of unethical practices against offenders during sentencing trials and in prison being recorded. Unfortunately, all this discrimination and injustice trickles down to enforce a psyche among Hispanic populations whereby they no longer trust the criminal justice system and in fact view its agencies like the police and courts with great suspicion. This furthers the agenda of criminal gangs that operate from within ghettos as the local population no longer feels the need to inform the police or cooperate in any of the state’s crime control activities. It also needs to be understood that this is not a new trend and that such mistrust in the police has been brewing from decades among minorities. The study carried out by Carter in 1985 studied the perception of the Hispanic population towards police in Texas found that inefficiency in police performance and victimization of the minority resulted in negative perceptions of all law enforcement entities in the state. Further, while cultural conflict and ineffective communication did play a role in this negative perception, it was mostly the failure of the police to meet public expectations that was a key issue (487). Thus, the consequences of such practices and policies is that Hispanics as a minority group with little power in the US criminal justice system are routinely victimization and stereotyped by a crime control industry that finds incarceration to be a part of a spiraling culture of behavioral control (Pratt 290-291). Not only are practices of discrimination during trials and sentencing against Hispanics unethical, the wide discretion that judges have in passing harsher sentences (Steffensmeier and Demuth, 2000) is unethical as it further discriminates against them and so is the very idea of steadily imprisoning offenders to maintain steady prison labor. Also, that Hispanic offenders find it harder to get into an alternative behavioral correction or rehabilitation program is also a serious concern that needs to be addressed. Works Cited Carter, David L. "Hispanic perception of police performance: An empirical assessment." Journal of Criminal Justice 13.6 (1985): 487-500. Web. Accessed 04/04/2017. Esqueda, Cynthia Willis, Russ KE Espinoza, and Scott E. Culhane. "The Effects of Ethnicity, SES, and Crime Status on Juror Decision Making A Cross-Cultural Examination of Euopean American and Mexican American Mock Jurors." Hispanic Journal of Behavioral Sciences 30.2 (2008): 181-199. Web. Accessed 03/04/2017 Enns, Peter K. "The public's increasing punitiveness and its influence on mass incarceration in the United States." American Journal of Political Science 58.4 (2014): 857-872. Web. Accessed 23/03/2017. Frase, Richard S. "Guest Editor's Observations: Sentencing Guidelines in the States: Lessons for State and Federal Reformers." Federal Sentencing Reporter 6.3 (1993): 123-128. Web. Accessed 24/03/2017 Lowenkamp, Christopher T., and Edward J. Latessa. "Increasing the effectiveness of correctional programming through the risk principle: Identifying offenders for residential placement." Criminology & Public Policy 4.2 (2005): 263-290. Web. Accessed 24/03/2017 Rhodes, William, et al. "Federal Sentencing Disparity:-."Bureau of Justice Statistics Working Paper Series: Washington, DC”, 2015. Web. Accessed 24/03/2017. Shermer, Lauren O’Neill, and Brian D. Johnson. "Criminal prosecutions: Examining prosecutorial discretion and charge reductions in US federal district courts." Justice Quarterly 27.3 (2010): 394-430. Web. Accessed 23/03/2017. Steffensmeier, Darrell, and Stephen Demuth. "Ethnicity and sentencing outcomes in US federal courts: Who is punished more harshly?." American sociological review (2000): 705-729. Web. Accessed 23/03/2017.