Journal of Criminal Justice 38 (2010) 185–192
Contents lists available at ScienceDirect
Journal of Criminal Justice
The intersection of defendants' race, gender, and age in prosecutorial
decision making
Travis W. Franklin ⁎
College of Criminal Justice, Sam Houston State University, P. O. Box 2296, Huntsville, TX 77341-2296, United States
a b s t r a c t
A growing body of research examined the ways in which various legal and extralegal factors influence
prosecutors' charging decisions. Though the results of these studies were mixed, some researchers reported
that extralegal factors had little or no effect on important decisions such as case rejection and dismissal. The
majority of this research, however, suffered from a considerable shortcoming—that is, most studies
considered the direct effects of measures such as age, race, and gender, but failed to consider the potential
interactions that might occur between these factors. Consequently, the present research employed a
nationally representative sample of felony drug defendants to address this issue by examining whether or
not age and gender condition the effect of race on prosecutors' decisions to dismiss criminal charges.
Implications of the findings are discussed in the context of theory, research, and policy.
© 2009 Elsevier Ltd. All rights reserved.
Introduction
A growing body of research has recognized the importance of
studying prosecutorial discretion (e.g., Albonetti, 1986, 1987; Barnes &
Kingsnorth, 1996; Baumer, Messner, & Felson, 2000; Beichner &
Spohn, 2005; Spohn, Beichner, & Davis-Frenzel, 2001; Spohn &
Holleran, 2001; Ulmer, Kurlychek, & Kramer, 2007). This is particularly
the case since prosecutors are afforded substantial decision making
power and possess the necessary authority to drastically shape the
experience of defendants processed through the criminal justice
system (Albonetti, 1986, 1987). It is prosecutors who decide whether
defendants will face formal charges, what those charges will be, the
total number of charges, and whether or not prosecution will be
discontinued. Moreover, convincing evidence suggests that prosecutors today wield more power than those in recent history; this change
emerged from the recent adoption of sentencing reforms and the
hydraulic displacement of discretion (see Eisenstein, Flemming, &
Nardulli, 1988; Engen & Steen, 2000; Miethe, 1987; Savelsberg, 1992;
Tonry, 1996). Engen and Steen (2000) have demonstrated that
limiting judicial discretion at the sentencing stage has simply shifted
it upstream to prosecutors. Working within the context of determinate
sentences, then, many prosecutors have the ability to fit the charge to
the desired sentence as prescribed by the relevant sentencing statutes.
Considering the importance of prosecutorial decision making,
researchers have tested the influence of a variety of factors on
prosecutors' charging decisions, including the decision to file criminal
⁎ Tel.: +1 936 294 4907; fax: +1 936 294 1653.
E-mail address: tfranklin@shsu.edu.
0047-2352/$ – see front matter © 2009 Elsevier Ltd. All rights reserved.
doi:10.1016/j.jcrimjus.2009.12.001
charges (e.g., Albonetti, 1987; Baumer et al., 2000; Beichner & Spohn,
2005; Spears & Spohn, 1997; Spohn et al., 2001; Spohn & Holleran,
2001) as well as the decision to dismiss criminal charges (e.g., Adams
& Cutshall, 1987; Albonetti, 1987; Barnes & Kingsnorth, 1996; Baumer
et al., 2000; Myers, 1982; Wooldredge & Thistlethwaite, 2004). This
research has been informative, yet much of the literature suffers from
a considerable shortcoming. As Free (2001) pointed out, many studies
assumed that the relationships between prosecutorial charging
decisions and various measures, including race, gender, and age,
were simply additive in nature, when in fact, they may have been
interactive. This shortcoming is particularly problematic since the
failure to consider such interactions may lead researchers to falsely
conclude that these extralegal factors are useless for understanding
how prosecutors reach important outcomes.
To address this important limitation, the current study used a large
sample of felony drug defendants processed by state courts to test for
potential interactions between race, gender, and age of the defendants
to more accurately determine if and how these factors influence
prosecutors' decisions to dismiss criminal charges. Researchers have
demonstrated the importance of examining how age and gender influence the effect of race on sentencing outcomes (e.g., Steffensmeier,
Ulmer, & Kramer, 1998), but little effort has been exerted to study
these effects on prosecutors' charging decisions. Thus, the current
analysis offered unique insight to an underdeveloped area of study.
Prior empirical research
The influence of race on the processing of criminal offenders has
been a topic of significant debate throughout the recent history of
criminal justice. Some scholars have argued that racial discrimination is
186
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
not an accurate characteristic of the criminal justice system (e.g.,
Wilbanks, 1987). Others have argued the opposite, suggesting that the
criminal justice system is entrenched in racial bias, preventing fair
treatment for minority offenders (e.g., Mann, 1993). For the few studies
that have attempted to address this issue, results appeared mixed. For
example, some researchers found that race does not influence the
decision to prosecute or dismiss a case (e.g., Albonetti, 1986, 1987;
Baumer et al., 2000; Bernstein, Kick, Leung, & Schulz, 1977; Ghali &
Chesney-Lind, 1986; Myers, 1982; Spears & Spohn, 1997; Welch, Gruhl,
& Spohn, 1984) while others found that race did, in fact, influence these
important decision points (e.g., Adams & Cutshall, 1987; Baumer et al.,
2000; Myers, 1982; Spohn, Gruhl, & Welch, 1987). Further complicating
the issue, some researchers had discovered unexpected race effects
where minority defendants were treated more leniently than similarlysituated White defendants (e.g., Barnes & Kingsnorth, 1996).
In a sample of shoplifters, Adams and Cutshall (1987) reported a
statistically significant relationship between defendants' race (White
versus Black) and the prosecutor's decision to dismiss the case. White
shoplifters were more likely to have their cases dismissed, even after
controlling for prior criminal history, the number of charges, the
severity of the offense, and other important case factors. Moreover,
the researchers found that in cases involving two or more witnesses to
the alleged crime, African American defendants were even less likely
than Whites to have their cases dismissed. Similarly, Myers' (1982)
analysis revealed that Blacks were less likely than Whites to have their
cases dismissed for misdemeanor charges, though this finding was not
replicated for felony charges.
Spohn et al. (1987) found race to be a significant factor in
prosecutors' decisions to file criminal charges. Hispanic and African
American male defendants were significantly less likely than White
male defendants to have their cases rejected during the initial
decision to prosecute. When analyzing the subsequent decision to
dismiss criminal charges, however, the researchers discovered that
race was not a significant factor. Baumer et al. (2000) also reported a
disadvantage for minority defendants, but unlike Spohn et al. (1987),
race was a significant predictor of the later decision to dismiss charges
but not in the initial decision to file charges.
Substantial evidence has challenged the idea that racial bias
influences prosecutorial charging decisions. Albonetti (1986) reported
that race did not influence the prosecutor's decision to dismiss charges,
net of relevant controls. In a later study, Albonetti (1987) also
discovered that race did not influence the earlier decision to file
criminal charges. Both of these studies reported that legal case factors
were the primary predictors of prosecutorial decision making. Welch
et al. (1984) reported that White and African American felony
defendants were equally as likely to have their cases dismissed.
Ghali and Chesney-Lind (1986) found similar results in a sample of
defendants charged with UCR Part I offenses, where race was not a
significant predictor of case dismissal.
Findings challenging the notion that race has influenced prosecutors'
charging decisions had also been discovered more recently in the
context of sexual assault (e.g., Beichner & Spohn, 2005; Spears & Spohn,
1997; Spohn & Holleran, 2001) and domestic violence (e.g., Worrall,
Ross, & McCord, 2006). In a case study of Detroit prosecutors, Spears and
Spohn (1997) found that defendant race did not influence the
prosecutors' decision to charge for sexual assault cases. Instead, victim
characteristics were the most important predictors of the initial
charging decision. Similar results were discovered by Spohn and
Holleran (2001) who analyzed approximately five hundred sexual
assault cases filed in Kansas City (Missouri) and Philadelphia. Defendant
race did not influence the decision to file charges for sexual assaults
involving strangers, acquaintances, or partners. Likewise, Beichner and
Spohn (2005) reported the absence of a race effect in the decision to file
criminal charges in a sample of sexual assault cases processed in Kansas
City (Missouri) and Miami. Finally, in the context of domestic violence,
Worrall et al. (2006) found that race (operationalized as White versus
other) did not affect the decision to file criminal charges, net of other
suspect, case, and victim characteristics.
A few studies of prosecutorial charging decisions even reported
findings favoring minority defendants over Whites. For example,
although Myers (1982) discovered a minority disadvantage in the
context of misdemeanor shoplifting cases, Whites were less likely
than Blacks to have their cases dismissed in felony shoplifting cases.
Barnes and Kingsnorth (1996) uncovered a similar finding in a study
of 1,379 felony drug defendants in California. Blacks were significantly
more likely to have their cases dismissed as compared to Whites
and Latinos. This apparent minority advantage was replicated by
Wooldredge and Thistlethwaite (2004) who reported that “the
significant race effects found here result in greater advantages for
African Americans relative to whites in decisions related to charging,
full prosecution and the length of incarceration” (p. 442). It should be
noted, however, that race effects favoring minorities may be the result
of biases in earlier decision points. Police who arrest with poor
evidence and overcharge minority suspects may cause prosecutors to
be more likely to reduce charges or even dismiss cases altogether (see
Barnes & Kingsnorth, 1996; Free, 2002).
In sum, the literature that examined the influence of race on
prosecutorial charging decisions produced mixed results. Some
studies reported that racial discrimination was likely, others
suggested that it did not occur. Still others suggested that racial bias
may actually benefit minorities. Unfortunately, much of the literature
ignored what has become commonplace for researchers studying
disparities in sentencing (see Steffensmeier et al., 1998); specifically,
the majority of the research on prosecutorial decision making had
failed to consider how race might interact with other extralegal
factors. To date, there was nearly an absence of research that
considers how age and/or gender might condition the effects of race
on prosecutorial charging decisions.
Focal concerns and criminal stereotypes
Originally introduced to explain judicial sentencing decisions, focal
concerns theory was first developed by Steffensmeier (1980), and later
elaborated upon by Steffensmeier and others (e.g., Steffensmeier &
Demuth, 2001; Steffensmeier et al., 1998; Ulmer, 1997). According to
this analytical framework, judicial sentencing decisions are shaped by
three key factors or focal concerns: (1) the blameworthiness of the
offender, (2) the protection of the community, and (3) the practical
constraints and consequences faced by courts and correctional facilities.
Judges presented with these rather pressing focal concerns rarely have
sufficient information to make a thoroughly informed or purely rational
decision. Instead, as Albonetti (1991, 1997) had persuasively argued,
judges are forced to make decisions on a bounded rationality basis
where complete information is nearly always unavailable. To deal with a
high volume of cases in light of the relative uncertainty concerning the
future behavior of offenders, judges develop a perceptual shorthand that
can quickly be applied to each case (Steffensmeier et al., 1998). Of
particular importance is the possibility that this perceptual shorthand is
not only based on legal case factors but may be tied to a variety of
stereotypes concerning the age, race, and sex of the offender.
Recent research has extended the focal concerns framework to
prosecutorial charging decisions (e.g., Beichner & Spohn, 2005; Spohn
et al., 2001; Ulmer et al., 2007). According to these scholars,
prosecutors also have particular focal concerns that guide their
decision making—namely, a concern for what Steffensmeier et al.
(1998) referred to as “practical constraints and consequences”
(p. 767). To understand the specific nature of these practical constraints and consequences, focal concerns theory can be applied in
concert with other insightful theoretical perspectives, ultimately
providing a more comprehensive explanation of key prosecutorial
decisions. For example, Ulmer et al. (2007) argued that themes of
organizational efficiency permeate the focal concerns of prosecutors,
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
where they must evaluate the consequences of their decisions within
the broader context of maintaining an efficient court environment
(Blumberg, 1967; Dixon, 1995; Engen & Steen, 2000; Hagan, 1989;
Packer, 1968; Ulmer & Johnson, 2004). In addition, Albonetti's (1986,
1987) uncertainty avoidance theory pointed to the importance of
uncertainty management for achieving success as a prosecutor. Since
prosecutorial achievement is largely centered on successful convictions, these actors engage in behaviors that attempt to maximize
certainty in reaching this outcome, even if doing so promotes reliance
on racial/ethnic stereotypes and the consideration of extralegal
factors (Albonetti & Hepburn, 1996). Thus, assuring certainty of
conviction is a focal concern that has a powerful ability to shape the
decision making processes undertaken by prosecutors.
This second focal concern—certainty of conviction—was particularly important for the current study since assessments of convictability may depend, in part, on commonly held stereotypes of the
typical criminal. As discussed by Britt (2000), criminal stereotypes
often target Blacks who are ascribed the status of the typical street
criminal, and this image is frequently reinforced through the broadcast media and dramatic portrayals. Equally important, Steffensmeier
et al. (1998) argued that criminal stereotypes do not target all Blacks
in the same way (see also Spohn & Holleran, 2000). Instead, these
stereotypes are applied most readily to young, Black males, implying
the need to consider how race, age, and gender interact with one
another to influence important decisions.
Individual prosecutors may not ascribe to the crime-prone and
dangerous stereotype of the young, Black male demographic, but as
Albonetti (1986, 1987) proposed, their assessments of convictability
rely heavily on predictions about what would happen if a case
progressed to trial. Consequently, prosecutors might consider the
possibility that a jury will be influenced by prevalent stereotypes of
the typical criminal. To the degree that this occurs, it is possible that
prosecutors will assess young, Black males as more convictable than
other similarly-situated defendants. Thus, when assessing certainty of
conviction, criminal stereotypes may be of some importance to
prosecutors even if they, themselves, are insulated from the effects of
stereotyping.
Methods
Data
To determine whether or not age and gender condition the effects
of race on prosecutorial charging decisions, the current analysis relied
on a sample of 4,349 felony drug defendants for which information
was provided by the 1998 State Court Processing Statistics (SCPS).1
The SCPS data collection program is conducted by the Bureau of Justice
Statistics and gathers relevant case processing information from
approximately forty of the nation's seventy-five most populous
counties (U.S. Department of Justice, 2000). Since the present study
was focused on the prosecutor's decision to either fully prosecute or
dismiss criminal charges, it is important to note that defendants whose
cases received a prosecutorial diversion, were transferred to juvenile
court, or were terminated due to the death of the defendant were
excluded from analysis (these cases represented just over 1 percent of
the sample). Additionally, information on key variables was missing in
5.1 percent of the sample, resulting in the deletion of 223 cases and a
final analytic sample of 4,126 felony defendants facing drug charges.
It should also be noted that while it was important to consider
these interactions for other crime types, the examination of drug
charges offered a significant advantage to the present analysis. As
compared to other crime types (e.g., violent, property, public order),
drug crimes are more likely to cut across the demographics of age,
race, and gender which were at the heart of the current study. In fact,
when examining the full sample of defendants in the SCPS data, drug
charges were the most prevalent charge for all defendants over the
187
age of thirty, and this same pattern of prevalence held true when
further breaking the sample down by age, race, and gender. In the end,
while the analytic sample was not necessarily generalizable to
defendants charged with other crime types, this strategy allowed
for a sufficient number of defendants in each of the age-race-gender
categories for a meaningful analysis.
Dependent measure
The primary purpose of the current study was to determine whether
and the degree to which gender and age condition the effect of race on
prosecutorial charging decisions. Typically, prosecutors decide whether
or not to reject a defendant's case during an initial screening of the case
files. After this point in the criminal justice process, prosecutors also
have the discretion to dismiss a defendant's case, effectively discontinuing criminal prosecution. Though both of these decision points are
important for understanding prosecutorial discretion, the current study
focused on the prosecutor's decision to discontinue a criminal case
through dismissal. Unfortunately, one limitation of the SCPS data was
the lack of information regarding the initial case rejection decision. Thus,
the dependent variable, case dismissal, was a dichotomous measure of
the prosecutor's decision to dismiss criminal charges and was coded 0
for fully prosecuted and 1 for dismissed.
Independent measures
To assess the primary research question, measures of gender, race,
and age were included in the analysis. Gender was operationalized as
a dichotomous variable, male, and was coded 0 for female and 1 for
male. Race was operationalized as a dichotomous measure, Black,
where White was coded 0 and Black was coded 1. A limitation of the
SCPS data was that the Hispanic measure did not adequately
differentiate between Black and White Hispanics. This was particularly problematic since it was not clear that criminal stereotypes
target Black and White Hispanics in a similar way. Consequently,
defendants identified as Hispanic were excluded from the analysis.
Additionally, Asian, Pacific Islander, and Native American defendants
constituted a sufficiently small proportion of the sample as to
preclude meaningful analysis and were also excluded from the study.
Much of the literature examining the influence of age on criminal
justice outcomes assumed a strictly linear relationship (e.g., Myers &
Talarico, 1987; Peterson & Hagan, 1984; Ulmer & Johnson, 2004),
though research conducted by Steffensmeier et al. (1998) had
demonstrated a nonlinear (i.e., inverted “U” shape) relationship
between age and sentencing. More specifically, these researchers
found that younger and older defendants were treated more leniently
than defendants in the twenty-one to twenty-nine age category. Thus,
in an analysis preliminary to the main study presented here, the
relationship between age and prosecutorial dismissal was examined.
Unlike Steffensmeier et al. (1998), the current study found that
defendants younger than twenty-one were not treated differently
than those who were twenty-one to twenty-nine years old. Since a
curvilinear relationship was not uncovered in this regard and to
ensure an adequate number of cases within each race/age/gender
subcategory of interest for the main analysis, age was operationalized
as a set of three dummy variables: eighteen to twenty-nine years old,
thirty to thirty-nine years old, and forty years or older (for ease of
discussion, the three age categories are also referred to as young,
middle-aged, and older offenders, respectively).
Existing research also demonstrated the importance of several
other defendant, case, and offense characteristics (e.g., prior record,
seriousness of the crime, pretrial detention, conditional release status,
number of charges) in predicting prosecutorial case dismissals
(Adams & Cutshall, 1987; Albonetti, 1986; Barnes & Kingsnorth,
1996; Baumer et al., 2000; Myers, 1982; Spohn et al., 1987). As a
result, several additional measures were included in the present study
188
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
for the purpose of isolating the unique effects of race, age, and gender
on the dismissal decision.
Prior record was a dichotomous measure (0= no, 1 = yes) indicating
whether or not the defendant had any prior felony convictions. Number
of charges captured the total number of felony charges faced by the
defendant and was operationalized as an ordinal variable ranging from
one to five or more charges. Trafficking charge was a dichotomous
measure (0 = no, 1 = yes) capturing whether the defendant was
arrested for a trafficking related charge (i.e., manufacture, sale, or
transfer of illegal drugs). Defendants in the current sample who were
not charged with a form of trafficking were arrested for less serious
possession charges.2 A substantial body of literature identified the
importance of pretrial detention on later stages of the criminal justice
process (e.g., Chiricos & Bales, 1991; Crew, 1991; Demuth, 2003; Spohn,
2000). Therefore, a measure of pretrial detention was included in the
current study and was operationalized as a dichotomous measure
(0 = no, 1 = yes) identifying whether or not the defendant was
detained. Charge is attempted was a dichotomous measure (0= no,
1 = yes) that identified whether or not the defendant faced charges for
an attempted as opposed to completed criminal act. Conditional release
was a dichotomous measure (0= no, 1 = yes) that captured whether or
not the defendant was on probation or parole at the time of arrest for the
current felony drug charge(s). Kingsnorth, MacIntosh, and Sutherland
(2002) pointed out the importance of considering this factor for the
study of prosecutorial discretion since prosecutors may dismiss criminal
charges in favor of pursuing a parole or probation violation hearing.
The final two measures included in the analysis indirectly captured
the strength of evidence present for each case. As argued by Baumer et
al. (2000), the expediency of arrest was a proxy measure for the
strength of evidence where defendants who were arrested on scene
the same day as the crime were more likely viewed as guilty by
prosecutors, judges, and juries. Moreover, time is a factor that often
works against building a strong case since evidence may degrade and
eyewitnesses may forget important details as time elapses. To address
this issue, arrested same day was included in the analysis as a
dichotomous variable (0 = no, 1 = yes) that identified whether or not
the defendant was arrested on the same day that the offense took
place. Initial screening was a case processing measure that captured
whether the defendant's case underwent an initial screening. During
this screening, prosecutors frequently dismiss cases where evidence is
clearly problematic for successful prosecution.
Though proxy measures for evidentiary strength were not
preferred, their use represented a step in the right direction
considering the relative lack of both direct or indirect measures of
evidence in many prior studies of prosecutorial charging decisions. In
fact, Free's (2002) review of the prosecutorial literature revealed that
out of the twenty-four studies examining prosecutorial reject/dismiss
decisions, only ten had direct measures of evidence. Of particular
importance to the current analysis, only two of these ten studies
reported race effects, indicating that when evidence was controlled,
minority disadvantages were rarely discovered. Consequently, the
present analysis might be viewed as a more liberal test of the notion
that racial stereotypes will affect prosecutorial decision making as
compared to studies with multiple direct measures of evidence. On
the other hand, the current study could also be viewed as a more
conservative test of the notion that racial stereotypes do not influence
the dismissal decision made by prosecutors. This consideration is
revisited later in the discussion.
Analytic strategy
Since the focus of this analysis was to examine if and how the
effects of race were conditioned by age and gender, the study
proceeded as follows. First a logistic regression model was estimated
to determine the direct effects of race, age, and gender for the purpose
of establishing a baseline of comparison for the remaining models
Table 1
Descriptive statistics
Variable (N = 4,126)
Percentage
Number of charges
Charge is attempted
Conditional release
Prior felony conviction
Arrested same day
Pretrial detention
Trafficking charge
Initial screening
Black
Male
Eighteen to twenty-nine years old
Thirty to thirty-nine years old
Forty years or older
Case dismissed
1.94 (Mean)
1.52
20.00
48.95
67.12
29.82
46.33
65.79
61.62
78.82
44.68
32.52
22.80
20.19
where interactions were considered. Next, a logistic regression model
was estimated to determine whether the effects of race were
conditioned by gender. This was accomplished by creating racegender categories (i.e., Black males, White males, Black females, White
females) and entering them into the model. A similar model was then
estimated to determine whether race was conditioned by age.
Accordingly, race-age categories (i.e., Black eighteen to twenty-nine,
White eighteen to twenty-nine, Black thirty to thirty-nine, White thirty
to thirty-nine, Black forty or older, White forty or older) were created
and included in the analysis. The final model considered whether race
was conditioned by both gender and age at the same time. Thus,
several race-gender-age categories were included in the final model.
Results
Table 1 presents the descriptive statistics for the measures
included in the analysis and indicates that a substantial proportion
of cases were dismissed by the prosecutor after criminal charges were
initially filed (20.19 percent). Additionally, a majority of the
defendants were Black (61.62 percent) and male (78.82 percent),
and almost half were between the ages of eighteen and twenty-nine
years old (44.68 percent). Moreover, nearly half the defendants had
been previously convicted of a felony (48.95 percent) and almost half
were facing felony drug charges involving some form of trafficking
(46.33 percent). Conversely, just over half the defendants were facing
less serious felony possession charges (53.67 percent).
Table 2 presents the findings for the first logistic regression model
where the direct effects of race, gender, and age were estimated, net of
Table 2
Direct effects of race, gender, and age on the dismissal decision
Variable
Coefficient
S.E.
Odds ratio
Number of charges
Charge is attempted
Conditional release
Prior felony conviction
Arrested same day
Pretrial detention
Trafficking charge
Initial screening
Black
Male
Eighteen to twenty-nine years old
Thirty to thirty-nine years old
Forty years or older
-.103
.472
-.378
.197
-.561
-.292
-.369
-.951
.052
.071
--.183
-.023
.040
.279
.115
.088
.085
.097
.086
.089
.087
.102
-.096
.104
.902⁎
1.603†
.685⁎
1.218⁎
.571⁎
.747⁎
.692⁎
.386⁎
1.053
1.073
-.833†
.977
Model X2 212.846⁎
Note: The eighteen to twenty-nine years old variable was excluded from the analysis as
the reference category for the age measures.
†
p b .10.
⁎ p b .05.
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
various controls. First, it was evident that both Blacks and males
appeared to be treated similarly to Whites and females, respectively;
neither of these two coefficients was statistically significant. An age
effect, on the other hand, appeared to present itself. Compared to
those defendants who were between the ages of eighteen and twentynine years old (reference category), those between the ages of thirty
and thirty-nine years old were slightly less likely to have their cases
dismissed by the prosecutor. Put another way, those who were
between the ages of thirty and thirty-nine years old were about
1.2 times more likely than the reference age group to have their cases
fully prosecuted. It should be noted, however, that this relationship
approached but did not reach the standard level of statistical
significance (p = .057).
Of the eight control variables included in the analysis, all but one
demonstrated statistically significant effects (charge is attempted was
significant at the p b .10 level). The two most powerful predictors in
the model were the initial screening and arrested same day measures,
both of which were proxy measures for evidentiary strength.
Defendants whose cases were initially screened by the prosecutors'
offices were significantly less likely to have their cases dismissed as
compared to those defendants whose cases were not initially
screened. In fact, prosecutors were about 2.58 times more likely to
dismiss these cases. Defendants who were arrested the same day that
they committed their offense were also significantly less likely to have
their cases dismissed as compared to those who were arrested at a
later time. Specifically, prosecutors were about 1.75 times more likely
to dismiss cases where the arrest occurred on a later day than the
offense occurred.
In addition, defendants who faced a larger number of charges,
engaged in drug trafficking, were on some form of conditional release,
and were detained prior to trial were all less likely to have their cases
dismissed as compared to their counterparts. Conversely, defendants
who were charged with an attempted offense and those with prior
felony convictions were more likely to have their cases dismissed than
defendants who completed their offense and had not been previously
convicted of a felony. It should be noted that the relationship between
the defendants' prior record and the dismissal decision was in the
opposite direction as originally expected. It could be, however, that
prosecutors treated drug offenders with prior felony convictions more
leniently than those without prior convictions as a result of tougher
laws applying to repeat felony offenders.
Table 3 presents the results of the second logistic regression model
which assessed whether or not the effect of race was conditioned by
Table 3
Race-gender effects on the dismissal decision
Variable
Coefficient
S.E.
Odds ratio
Number of charges
Charge is attempted
Conditional release
Prior felony conviction
Arrested same day
Pretrial detention
Trafficking charge
Initial screening
Eighteen to twenty-nine years old
Thirty to thirty-nine years old
Forty years or older
Black males
White males
Black females
White females
-.104
.479
-.381
.200
-.564
-.290
-.367
-.953
--.190
-.028
--.015
.005
-.171
.040
.279
.115
.088
.085
.097
.086
.089
-.096
.104
-.098
.138
.145
.901⁎
1.614†
.683⁎
1.222⁎
.569⁎
.749⁎
.693⁎
.386⁎
-.827⁎
.973
-.985
1.005
.843
Model X2 213.216⁎
Note: The eighteen to twenty-nine years old and Black male variables were excluded
from the analysis as the reference categories for the age and race/gender measures,
respectively.
†
p b .10.
⁎ p b .05.
189
gender. This model incorporated several race-gender categories as
dummy variables to determine whether or not race appeared to
influence the dismissal decision differently for males and females.
Compared to Black males (reference category), it appeared that White
males, Black females, and White females were each treated no
differently. These findings, then, indicated that the effect of race did
not appear to be conditioned by gender alone. Additionally, the direction
and magnitude of the control variables remained relatively unchanged
as compared to the previous model and the effect of age (thirty to thirtynine years old) reached the standard level of statistical significance
(p = .048).
Table 4 presents a model similar to Table 3, with the primary
difference being that the race-gender categories were replaced with
race-age categories to determine whether the effect of race differed
across age groups. Findings indicated that compared to Black
defendants between the ages of eighteen and twenty-nine years old,
most other race-age groups were treated no differently. The one
exception was with those defendants who were White and between
the ages of thirty and thirty-nine years old. These defendants were
significantly less likely to have their cases dismissed as compared to
their younger, Black counterparts. This finding was particularly
surprising since criminal stereotypes generally target young Blacks
much more frequently than middle-aged Whites.
The final model is presented in Table 5 and reported on the
conditioning effects of both gender and age simultaneously. This
model assessed the effects of a series of twelve race-gender-age
dummy variables with Black males between the ages of eighteen and
twenty-nine years old left out as the reference category. According to
the stereotype of the young, Black, male criminal, it was this racegender-age group that should be treated most harshly. The findings
from this model, however, did not support this contention. First, it
must be noted that compared to young, Black males, most other racegender-age groups were treated no differently. Once again this was
not the case for Whites between the ages of thirty and thirty-nine
years old; these defendants were significantly less likely to have their
cases dismissed. This effect was consistent across gender where White
females and White males between the ages of thirty and thirty-nine
years old were 1.56 and 1.72 times less likely to have their cases
dismissed, respectively. Thus, the race-age effect reported in the
previous model was not further conditioned by gender.
In the end, the results from the current analysis indicated that race
was, in fact, conditioned by age but not by gender. Whites between
thirty and thirty-nine years old, despite their gender, were treated
Table 4
Race-age effects on the dismissal decision
Variable
Coefficient
S.E.
Odds ratio
Number of charges
Charge is attempted
Conditional release
Prior felony conviction
Arrested same day
Pretrial detention
Trafficking charge
Initial screening
Male
Black eighteen to twenty-nine
White eighteen to twenty-nine
Black thirty to thirty-nine
White thirty to thirty-nine
Black forty or older
White forty or older
-.107
.498
-.378
.187
-.566
-.292
-.383
-.956
.085
-.093
.052
-.462
-.099
.160
.040
.280
.115
.088
.086
.097
.086
.089
.103
-.126
.120
.145
.134
.151
.899⁎
1.645†
.685⁎
1.206⁎
.568⁎
.747⁎
.682⁎
.384⁎
1.089
-1.097
1.054
.630⁎
.906
1.173
Model X2 227.040⁎
Note: The Black eighteen to twenty-nine variable was excluded from the analysis as the
reference category for the race-age measures.
†
p b .10.
⁎ p b .05.
190
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
Table 5
Race-gender-age effects on the dismissal decision
Variable
Coefficient
S.E.
Odds ratio
Number of charges
Charge is attempted
Conditional release
Prior felony conviction
Arrested same day
Pretrial detention
Trafficking charge
Initial screening
Black male eighteen to twenty-nine
White male eighteen to twenty-nine
Black female eighteen to twenty-nine
White female eighteen to twenty-nine
Black male thirty to thirty-nine
White male thirty to thirty-nine
Black female thirty to thirty-nine
White female thirty to thirty-nine
Black male forty or older
White male forty or older
Black female forty or older
White female forty or older
-.109
.491
-.381
.181
-.567
-.283
-.387
-.957
-.069
-.385
-.028
.026
-.547
-.055
-.444
-.232
.236
.209
-.315
.041
.281
.115
.088
.086
.098
.086
.089
-.139
.259
.216
.132
.168
.198
.228
.148
.166
.244
.301
.897⁎
1.633†
.683⁎
1.198⁎
.567⁎
.753⁎
.679⁎
.384⁎
-1.072
.680
.972
1.027
.579⁎
.946
.642⁎
.793
1.266
1.232
.730
Model X2 234.627⁎
Note: The Black male eighteen to twenty-nine variable was excluded from the analysis
as the reference category for the race-gender-age measures.
†
p b .10.
⁎ p b .05.
more leniently than young Blacks between the ages of eighteen and
twenty-nine years old. Even so, the effects of race appeared to be
somewhat limited as most race-gender-age categories were treated
no differently than one another. The relative equality of treatment
was highlighted by the fact that young, Black men were no less likely
to have their cases dismissed than older White women, who clearly
fall beyond the bounds of criminal stereotypes.
Discussion
Much of the prosecutorial literature had considered whether or not
extralegal factors such as race, gender, and age influence the processing
of criminal defendants. This literature, however, had not considered
how these factors might interact with one another. Therefore, in the
context of felony drug cases, the current study addressed this
shortcoming by examining whether or not the effect of race on the
prosecutor's decision to dismiss a case was conditioned by the
defendant's gender and age. Based on prevalent criminal stereotypes
and a focal concerns perspective of prosecutorial decision making, this
analysis tested the notion that prosecutors might view young, Black
males as more convictable than other race-gender-age categories,
leading to a lesser likelihood of case dismissal for these defendants. The
findings have several implications for theory, research, and policy.
First, the processing of criminal defendants facing felony drug
charges appeared to be accomplished with little in the way of disparate
or unfair treatment across race-gender-age categories. The most
prevalent criminal stereotypes target young, Black males, and researchers studying sentencing outcomes demonstrated that this race-genderage group tends to receive the most punitive sentences (see
Steffensmeier et al., 1998). In the context of prosecutorial dismissals,
however, this finding was not supported. Instead, the empirical
evidence from the present study indicated that young, Black males
were treated no more harshly than any of the race-gender-age
categories examined. Moreover, the most powerful predictors of case
dismissal entailed measures of evidentiary strength. Consequently, it
appeared that the image of the stereotypical street criminal did not have
any practical bearing on prosecutorial focal concerns—particularly
concerns surrounding the certainty of conviction.
It should be noted, however, that this finding was reported in the
context of an analysis that relied on indirect measures for evidentiary
strength. While the lack of such direct measures was certainly a
limitation to this study, their inclusion would unlikely change the
substantive findings reported here. As discussed earlier, a recent
review of the prosecutorial literature indicated that studies including
direct measures of evidence rarely found race to be an influential factor
in the prosecutor's decision to dismiss or reject cases (see Free, 2002).
In essence, it appeared that these measures washed out the effects of
race once controlled. Since the evidentiary measures in the present
study were indirect measures, it was argued that this analysis
represented a more liberal approach to discovering a minority
disadvantage. Even so, the results indicated that Black defendants
were not treated more severely (i.e., their cases are not more likely to
be prosecuted) than White defendants, despite considerations of
gender and age.
Second, though few differences emerged between defendants of
varying race-gender-age characteristics, one race-age category stood
out as receiving different treatment. White defendants between thirty
and thirty-nine years old were significantly less likely to have their
cases dismissed as compared to young, Black defendants. Such a
finding was in direct contradiction with previous studies that
reported racial disparities in favor of White defendants as compared
to minorities (e.g., Adams & Cutshall, 1987; Baumer et al., 2000).
Other studies, however, reported similar findings in the context of
felony drug cases. Barnes and Kingsnorth (1996) reported that Black
defendants were more likely to have their cases dismissed as
compared to White defendants. To explain this finding, the researchers suggested that Black defendants were likely arrested with poorer
quality evidence when compared with White defendants, forcing
prosecutors to dismiss their cases more frequently. This was certainly
a plausible explanation, though it did not fully explain the findings of
the current study where both younger (eighteen to twenty-nine years
old) and older (forty years and older) White defendants were treated
no differently than young Black defendants.
In a more recent analysis of federal drug offenders, Kautt and
Spohn (2002) also found similar findings in the context of sentencing.
Here the researchers examined the effects of mitigating and
aggravating factors on sentence length for Black versus White
offenders. They reported that “[r]ather than uncovering a host of
greater aggravating effects for black defendants, we instead found
several effects that were more beneficial to black defendants than to
white defendants” (p. 32). To help explain this unexpected finding,
the authors relied partly on a variation of conflict theory which argues
that minorities may actually be treated more leniently than Whites
as a result of the devaluation of minority communities. If such a
hypothesis holds true and the criminal justice system places a higher
value on White as opposed to minority communities, it may be that
they reserve their harshest punishment for middle-aged White
defendants who should arguably be the most productive/valuable
members of their communities. Unfortunately, the nature of the data
could not provide an exact answer as to why middle-aged Whites
received more punitive treatment in the current sample, and thus,
further research is needed.
Third, the current study demonstrated that race did appear to
matter, although in limited ways, when considering its interaction with
age. Given the fact that few previous studies of prosecutorial dismissals
considered race-age interactions, it was unclear whether or not those
reporting no race effects were accurate in their assumptions or simply
masking over differences that appeared across age groups. As a result,
researchers should be somewhat cautious when summarizing the
effects of previous studies since their findings rarely addressed the more
subtle ways that race might have, indeed, mattered.
Fourth, the conditioning effect of gender and age on race appeared
limited in the current study, but it was entirely possible that race
effects were further conditioned by other offender and case-related
T.W. Franklin / Journal of Criminal Justice 38 (2010) 185–192
factors. For example, Adams and Cutshall (1987) reported that
prosecutors treated Black defendants more harshly than White
defendants generally, but that the differential treatment was even
more pronounced when the number of witnesses was taken into
account. It was also possible that race might have interacted with
other case measures such as the number or type of charges a defendant is facing. For felony drug cases, this means that Black defendants
could be treated more harshly than White defendants for cases
involving multiple charges or even charges involving drug possession
versus drug sales. Consequently, future research should examine the
more subtle ways that race might interact with factors beyond gender
and age to influence prosecutorial decision making.
Fifth, the focus of the current study was on the processing of felony
drug cases as opposed to less serious misdemeanor cases. In the
context of sentencing decisions, researchers have pointed out that
judges tend to have more discretion in the sentencing of less serious
as opposed to more serious cases (see Spohn & Cederblom, 1991). Less
serious cases are disposed of more quickly and often involve more
informal processing as compared to more serious cases. This phenomenon has been referred to as the liberation hypothesis (Kalven &
Zeisel, 1966; Spohn & Cederblom, 1991). The liberation hypothesis
was also tested in the context of prosecutorial decision making and
researchers found support for its general argument. For example,
Paternoster (1984) reported that race influenced prosecutors'
decisions to request the death penalty in less serious homicide cases
as compared to more serious homicide cases. Considering these
findings, it was certainly possible that the race-gender-age effects
examined in the current analysis might operate differently in the
context of misdemeanor versus felony cases. Future research should
further address this issue.
Finally, the results presented here indicated that the prosecutorial
dismissal decision was largely race neutral, but once the conditioning
effects of gender and age were examined, disparate treatment did
emerge. The reported findings were not in the expected direction—
middle-aged White defendants were treated more punitively than
young Black defendants—but even so, this result is not without
implication. The primary reason that scholars study the effect of race
in the processing of criminal offenders is to ensure that the system
operates in a racially neutral manner. Since this was not entirely the
case in the present sample of drug offenders and because past
research also demonstrated that race has affected criminal justice
outcomes (for a review see Zatz, 2000), it is not unreasonable to
suggest that the prosecution of criminal defendants deserves more
oversight than it currently receives. In fact, prosecutors' offices should
routinely examine the outcomes of their decision making to help
ensure that undue racial disparity, or disparity coming from extralegal
sources such as race, gender, and age, does not exist or can at least be
corrected where it does exist.
Notes
1. Data more recent than 1998 have been made available through the SCPS program.
Unfortunately, the latest releases of the SCPS data provided less detailed information
regarding case and offender characteristics relevant to the current analysis. To provide a
more insightful analysis, the current study relied on the 1998 data set.
2. It should also be noted that the specific type of drug was not readily identified in
the data set and thus could not be included in the analysis.
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