The Architecture of Discretion: Implications of the Structure of Sanctions for Racial Disparities, Severity, and Net Widening
About four million people are serving a term of probation, parole, or post-release supervision in the United States. Due to the extensive use of incarceration as a punishment for conditions violations, these community supervision programs are a major factor contributing to mass incarceration and, as this Article shows, can play a significant role in exacerbating racial disparities in the criminal legal system.
In recent years, jurisdictions throughout the United States have made reforms to their community supervision programs. A major trend in community supervision reform is the integration of new sanctioning structures, such as “swift and certain” sanctions, for conditions violations. These changes not only introduce new types of sanctions but also redesign the architecture of the sanctioning process and provide a valuable opportunity to study how the contours of discretion affect bias, severity, and frequency in the imposition of sanctions.
In this Article, I study a statewide probation reform that implemented swift and certain sanctions. I present new empirical evidence on the impact of two key elements of the structure of discretion: the disaggregation of discretion into multiple decision points and the allocation of discretion among various actors in the decision-making process. In addition, this Article includes the first in-depth empirical analysis of swift and certain sanctions on racial disparities.
Using a detailed administrative dataset covering nearly 90,000 probation cases, I find that the introduction of swift and certain sanctioning reforms is associated with a statistically significant increase in the overall rate of incarceration among probationers and a statistically significant decrease in racial disparities in incarceration.
The overall increase in incarceration is driven by the imposition of new jail and prison sanctions introduced by the swift and certain reforms. The decrease in racial disparities appears to be driven by the narrowing of racial disparities associated with probation revocations. These results suggest that disaggregating and reallocating points of discretion may reduce racial disparities but can come at the expense of widening the carceral net.
Ryan T. Sakoda,
The Architecture of Discretion: Implications of the Structure of Sanctions for Racial Disparities, Severity, and Net Widening,
Nw. U. L. Rev.