Sex Crime and Punishment: an Analysis of Sex Offender Sentencing in Florida Ryan T

Florida State University Libraries

Electronic Theses, Treatises and Dissertations The Graduate School

2013 Sex Crime and Punishment: An Analysis of Sex Offender Sentencing in Florida Ryan T. Shields

Follow this and additional works at the FSU Digital Library. For more information, please contact [email protected] THE FLORIDA STATE UNIVERSITY

COLLEGE OF CRIMINOLOGY AND CRIMINAL JUSTICE

SEX CRIME AND PUNISHMENT: AN ANALYSIS OF

SEX OFFENDER SENTENCING IN FLORIDA

RYAN T. SHIELDS

Dissertation submitted to the College of Criminology and Criminal Justice in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Degree Awarded: Summer Semester, 2013

Ryan T. Shields defended this dissertation on June 21, 2013.

The members of the supervisory committee were:

Daniel P. Mears Professor Directing Dissertation

Melissa Radey University Representative

Patricia Y. Warren Hightower Committee Member

William Bales Committee Member

The Graduate School has verified and approved the above-named committee members, and certifies that the dissertation has been approved in accordance with university requirements.

I dedicate this work to Dr. Heather L. Pfeifer. Heather was the first person to suggest that I continue my graduate studies and pursue an academic career, and she continues to encourage

me today. Any professional success I have in the future is the result of her early and

sustained support. Thank you, Heather!

iii

ACKNOWLEDGEMENTS

The completion of this project would have been impossible without the strong network of professors, family and friends who helped direct (and in many cases, redirect) me in my academic pursuits. First and foremost, I would like to thank my dissertation chair, Dr. Daniel

Mears, for his tireless assistance with this project and his mentorship during my time at FSU.

Dan guided me through the comprehensive exams, dissertation development, and job market preparation. His advice was thoughtful, balanced, and invaluable. I appreciate his insight, approach to academia, and sense of humor—his “creative” way of critiquing my writing is a favorite memory of mine.

My graduate student experience was also shaped by Dr. Patricia Warren Hightower. For nearly five years, I served as Dr. Warren’s teaching/research assistant. In that time, I learned a great deal about teaching and research. Dr. Warren’s contribution to the dissertation is also notable. She helped me connect sex offender sentencing to broader issues in punishment and formal social control. Most importantly, I gained a close friend who I will miss greatly. I thank

Dr. Warren for her constant support and advocacy during our time together. It was a lot of fun.

The dissertation also benefitted for the work of Dr. Bill Bales and Dr. Melissa Radey. I thank Dr. Bales for many hours of aid in accessing, cleaning, and understanding Department of

Corrections Data. His help in this project was invaluable. Dr. Radey also provided a careful review and critique of this dissertation, which indisputably made it a better product.

I am also indebted to Dr. Jill Levenson at Lynn University. Jill hired me for a summer research assistant job in 2009 and in doing so, opened my eyes to the world of sex offender policy and management. She took me under her wing, introduced me to scholars in the field, and

iv provided opportunities that have directly shaped my approach to research today. She has been a supervisor, mentor, and collaborator. But most significantly, Jill has been a great friend, and I look forward to many years of friendship and collaboration.

I am forever grateful for the opportunity to study under some great criminological scholars at Florida State. Specifically, I thank Dr. Brian Stults, Dr. Eric Stewart, Dr. Eric

Baumer, Dr. Carter Hay, Dr. Sonja Siennick, Dr. Kevin Beaver, and Dr. Tom Blomberg for their instruction, advisement, and support during my time in the program. I would also like to thank

Margarita Frankeberger for years of assistance. Without Margarita, deadlines would have been missed and forms forgotten.

Sincere thanks go to all my friends and colleagues in the program. There are three that require specific mention. First, I would like to thank Josh Cochran for his assistance with this project, as well as his friendship and humor over the past five years. It was great to have someone else in Tallahassee care about the Ravens. Second, I would also like to thank Ashley

Arnio for her tireless support and advice, as well as her composure during our various river misadventures. Third, I would like to thank Kristin Golden, whom I met during our search for doctoral programs. Kristin has been a strong source of encouragement, especially during this final stretch. Surviving coursework, exams, and the dissertation was made possible knowing I had these friends to count on—you guys are the best! I would also like to thank Dr. Brian Ward and Dr. Christina Mancini for offering their experience and invaluable advice for how to successfully transition from graduate student to young scholar. I look forward to our future collaborations.

Finally I would like to thank my family and friends—especially Timothy Shields, Kathy

Shields, Jennifer Shields, Stephanie Demers, Chris Demers, Kelly Shields, Jeremy Desmond,

Laurie Shields, Mike Lovaas, Tina Krabitz, and Arlene Whye—for their unwavering support during my graduate studies. They celebrated my joys and reminded me of the big picture when I grew frustrated. They provided financial support, comic relief, and mid-semester trips to

Hogwarts to escape and reenergize. I would also like to thank Stevie, my very favorite part of life in Florida.

TABLE OF CONTENTS

LIST OF TABLES ...... ix

LIST OF FIGURES ...... x

ABSTRACT ...... xii

1. INTRODUCTION ...... 1 The Importance of Sex Offender-Specific Research ...... 5 The Importance of Sentencing Studies ...... 9 Setting the Stage—Sentencing Policy Changes in Florida ...... 12 Current Study ...... 14 Description of Substantive Chapters ...... 15

2. A HISTORY OF SEX OFFENDER PUNISHMENT ...... 17 Introduction ...... 17 Punishment Philosophies ...... 19 Historical Overview of Sex Offender Punishment ...... 24 Patterns and Trends in Sex Offender Punishment ...... 33 Discussion and Conclusion ...... 36

3. A DESCRIPTIVE ANALYSIS OF SEX OFFENDER SENTENCING IN FLORIDA ...... 40 Introduction ...... 40 Current Study ...... 41 Methodology ...... 42 Findings...... 43 Discussion and Conclusion ...... 58

4. THE ROLE OF RACE AND ETHNICITY IN SENTENCING SEX OFFENDERS ...... 62 Introduction ...... 62 Background ...... 64 Theoretical Framework ...... 69 Current Study ...... 70 Methodology ...... 71 Analytic Strategy ...... 73 Findings...... 73 Discussion and Conclusion ...... 79

5. RACE AND SEX OFFENDER SENTENCING: A MULTI-LEVEL ANALYSIS ...... 86 Introduction ...... 86 Background ...... 88 Theoretical Framework ...... 91 Current Study ...... 95 Methodology ...... 96 Findings...... 97

vii

Discussion and Conclusion ...... 104

6. CONCLUSION ...... 110 Summary ...... 110 Implications...... 112

REFERENCES ...... 115

BIOGRAPHICAL SKETCH ...... 127

viii

LIST OF TABLES

Table 4.1. Descriptive statistics, convicted sex offenders in Florida, 2000-2009 ...... 74

Table 4.2. Logistic Regression Predicting Incarceration for Convicted Sex Offenders ...... 76

Table 4.3. Negative binomial regression predicting sentence length for convicted sex offenders ...... 77

Table 5.1. Descriptive statistics, convicted sex offenders in Florida, 2000-2009 ...... 98

Table 5.2. Descriptive statistics by race, convicted sex offenders in Florida, 2000-2009 ...... 100

Table 5.3. Multilevel logistic regression predicting incarceration for convicted sex offenders, 2000-2009 ...... 101

Table 5.4. Multilevel logistic regression predicting incarceration for convicted sex offenders in Florida, 2000-2009 (conditional models) ...... 102

LIST OF FIGURES

Figure 3.1. Proportion of convicted sex offenders and non-sex offenders sentenced to prison...... 45

Figure 3.2. Average prison sentence length (in years) for convicted sex offenders...... 45

Figure 3.3. Proportion of convicted sex offenders sentenced to prison by race...... 45

Figure 3.4. Proportion of convicted sex offenders sentenced to prison by sex...... 47

Figure 3.5. Proportion of convicted sex offenders and non-sex offenders sentenced to jail...... 47

Figure 3.6. Average jail sentence length (in days) for convicted sex offenders...... 47

Figure 3.7. Proportion of convicted sex offenders sentenced to jail by race...... 49

Figure 3.8. Proportion of convicted sex offenders sentenced to jail by sex...... 49

Figure 3.9. Proportion of convicted sex offenders and non-sex offenders sentenced to probation...... 49

Figure 3.10. Average probation sentence length (in months) for convicted sex offenders...... 50

Figure 3.11. Proportion of convicted sex offenders sentenced to probation by race...... 50

Figure 3.12. Proportion of convicted sex offenders sentenced to probation by sex...... 50

Figure 3.13. Proportion of convicted sex offenders and non-sex offenders sentenced to community control...... 53

Figure 3.14. Average community control sentence length (in months) for convicted sex offenders...... 53

Figure 3.15. Proportion of convicted sex offenders sentenced to community control by race...... 53

Figure 3.16. Proportion of convicted sex offenders sentenced to community control by sex...... 55

Figure 3.17. Proportion of convicted sex offenders and non-sex offenders receiving an upward departure...... 55

Figure 3.18. Proportion of convicted sex offenders receiving an upward departure by race ...... 55

Figure 3.19. Proportion of convicted sex offenders receiving an upward departure by sex...... 56

Figure 3.20. Proportion of convicted sex offenders and non-sex offenders receiving a downward departure...... 57

Figure 3.21. Proportion of convicted sex offenders receiving a downward departure by race...... 58

Figure 3.22. Proportion of convicted sex offenders receiving a downward departure by sex...... 58

Figure 4.1. Predicted probability of incarceration for convicted sex offenders...... 78

ABSTRACT

During the past two decades, policy-makers, members of the media and the general public have identified sex offending as a persistent social problem. Indeed, a wealth of get-tough legislation has been enacted to enhance punishment and closely monitor convicted sex offenders.

Scholars have directed their efforts at understanding sex offending and sex crime policy. Much of this research is focused on what happens to sex offenders once they return to a community

(e.g., registration and community notification, residence restrictions). Few studies have examined sex offender punishment. This gap in the literature is notable, given the enhanced focus on sex offenders and how they are punished. The general public has argued that however sex offenders are currently punished, it is “not enough.” Yet, few studies have explored sex offender punishment with regard to official sentencing. Thus, the goal of this dissertation is to advance sex offender scholarship by examining the sentencing of sex offenders in Florida.

Using sentencing data from the Florida Department of Corrections, several questions centered on sex offender sentencing were examined. First, which punishment philosophy is driving sex offender punishment, and how have punishment approaches changed over time?

Using Florida as a backdrop, how are sex offenders sentenced and how has that approach changed over time? What is the role of offender race and ethnicity in sentencing sex offenders?

Finally, what is the effect of county racial and ethnic composition on sex offender sentencing?

Results show that sex offender punishment practices are grounded in incapacitation and retribution frameworks. Indeed, evidence from Florida suggests that in recent years, sex offenders are more likely to go to prison and less likely to be sentenced to community sanctions, such as probation or community control. Further analyses examined the effect of offender race and ethnicity on sentencing outcomes and found that young adult and middle-aged black sex

xii offenders are more likely to be incarcerated than their white counterparts. However, elderly white sex offenders are more likely to be incarcerated than their black counterparts. Finally, the relationship between county racial and ethnic composition and decision to incarcerate was examined. Results indicate that counties with larger populations of Black and Hispanic residents are less likely to sentence sex offenders to incarceration. Implications for theory and research are discussed.

xiii

CHAPTER 1

INTRODUCTION

I must not only punish, but punish with impunity. A wrong is unredressed when retribution

overtakes its redresser. It is equally unredressed when the avenger fails to make himself felt

as such to him who has done the wrong.

—Edgar Allan Poe, The Cask of Amontillado (1846/1975)

On an intellectual level, when these guys are released from prison, we want them to succeed.

That’s the goal. Then you have no more victims. That’s the goal. All these laws they’ve been

passing make sure that they’re not going to succeed. They don’t have a place to live; they

can’t get work. Everybody knows of their crime and they’ve been vilified. There is too much

of a knee-jerk reaction to these horrible crimes…I’m not soft on these guys, but I know

they’re not all the same. They’re not all the same and we can’t treat them as such.

—Patty Wetterling, mother of Jacob Wetterling (2009)

On November 3, 2011, Daniel Enrique Guevara Vilca, a 26 year-old resident of Naples,

Florida, with no prior criminal history, was convicted of possessing over 450 images and videos of child pornography (Goode, 2011). After Vilca rejected the prosecutor’s plea deal of 20 years in prison, the prosecutor increased the charges, considering each image as a separate count (with each count worth five years in prison). Vilca was found guilty at trial and was sentenced to life in prison. Critics of this particular sentence argue that Vilca may have received a lesser sentence if he had actually molested a child and question whether the judge’s sentence was proportionate to

1 the crime committed. Some members of the public, on the other hand, have praised this ruling, arguing that harsh sentences like Vilca’s life imprisonment protect society from the child pornography viewer’s inevitable attack on children.

As illustrated in the example above, few other crimes evoke quite the same level of anger, fear and revulsion than sexual offenses (Church, Sun, and Li, 2011; Quinn, Forsyth, and Mullen-

Quinn, 2004; Scheela, 2001; Tewksbury and Lees, 2007). At the same time, questions about the best ways to punish these offenders abound. For example, how are sex offenders sentenced?

Have approaches in sex offender punishment varied over time? What factors influence the sentencing decision-making process? As illustrated in the above quote by Edgar Allan Poe, and echoed 163 years later by Patty Wetterling, punishment is an important social process, but can punishment become meaningless? Existing scholarship provides few answers to these and related questions.

Over the past several decades, policy-makers have taken a “get-tough” approach to sexual offenders under the auspices of community protection (Meloy, Curtis, and Boatwright, 2013).

Currently, there is a host of new state, county, and municipal ordinances that only sex offenders must follow. For example, a 2013 ordinance in Bradford County, Florida, requires red signs to be placed in sexual predators’ front yards, identifying the offender by name as a sexual predator

(Benson, 2013). As a comparison, released offenders convicted of non-sexual violent offenses

(e.g., child abuse) are not required to post these signs. There has also been a considerable amount of media reporting of sex offender issues. Since the 1990s, news stories about cases of sexual abuse or sex offender sentencing have increased dramatically (Fox, 2013). In addition, many local news organizations have links to the sex offender registry on the organization’s homepage.

In addition to increased attention from policy-makers and the media, there has also been a substantial amount of scholarship focusing on sex offender-specific issues, including residence restrictions (Levenson and Cotter, 2005a; Mancini, Shields, Mears, and Beaver, 2011), risk assessment and prediction (Hanson and Harris, 2000; Seto, 2005; Sreenivasan, Weinberger,

Frances, and Cusworth-Walker, 2010;), registration and community notification (Anderson and

Sample, 2008; Letourneau, Bandyopadhyay, Sinha, and Armstrong, 2009; Levenson and Cotter,

2005b; Tewksbury, 2005), failure to register (Levenson, Letourneau, Armstrong, and Zgoba,

2010), and electronic monitoring (Armstrong and Freeman, 2011; Padgett, Bales, and Blomberg,

2006; Payne and DeMichele, 2010).

One area of the sex offending literature that at present remains underexplored is sentencing.

While studies of post incarceration supervision techniques (e.g., residence restrictions, registration and community notification, treatment participation) are common, few studies have examined the official punishment of sexual offenders. Although the public is quite vocal about demanding tougher sanctions for this group (Roberts, Stalans, Indermaur, and Hough, 2003), little is known about how this particular group of offenders is officially sanctioned.

This gap in the literature is notable for several reasons. First, sentencing has direct consequences for the correctional system. A get-tough approach to sentencing could be expected to result in larger proportions of sex offenders getting sentenced to prison and longer terms of incarceration. Indeed, prison data reveal that the sex offender prison population is already growing faster than any other category of inmates (Greenfeld, 1997). Lucken and Bales (2008) reported that between 1993 and 2002, the sex offender prison population increased by 74 percent while the state prison population increased by 49 percent. Approximately 10 percent of the prison population is now serving a sentence for a sex crime (Harrison and Beck, 2006).

Second, what happens at the sentencing stage lays the groundwork for later reentry experiences. Much like other offenders, almost all incarcerated sexual offenders return to the community (Travis, 2005). Inmates with longer sentences have fewer networks and resources to tap once they are returned to the community. As a result, sex offenders often have difficulties in securing housing, employment, and treatment services (Laws and Ward, 2011). Beyond the implications of these challenges for the well-being of the offender, some scholars have argued that reentry challenges could actually increase the risk of behaviors community members worked to prevent, such as offender absconding (Zgoba, Levenson, and McKee, 2009) or sexual recidivism (Terry, 2005)

Third, and no less important, as public and political actors call for harsher sentences for sex offenders, scholars have questioned whether these sentences are meted out fairly. Prior research has found that minorities, especially African American and Latino males, are significantly more likely to be incarcerated and sentenced to longer prison terms than their white counterparts

(Chiricos and Crawford, 1995; Spohn, 2000). Whether these patterns exist for sex offenders specifically is, at present, unclear.

Scholars have noted that despite the wealth of studies examining sentencing, much remains unknown (Engen, Gainey, Crutchfield, and Weis, 2003; Johnson, 2003; Johnson, Ulmer, and

Kramer, 2008; Mears, 1998). This critique appears to be especially relevant for sex offender sentencing specifically (Kingsnorth, Lopez, Wentworth, and Cummings, 1998). Despite the growing focus on the punishment and management of these offenders, several important questions about punishment remain. How strict are sentences for sex offenders and how has this level of punishment changed over time? Have state sentencing commissions heeded the public’s

4 call for harsher sentences for sex offenders? To what extent do race and ethnicity influence this decision-making process? What community-level racial attributes affect punishment decisions?

The goal of this dissertation is to advance scholarship on sex offenders by shedding light on these questions. Drawing on prior research and theory on sentencing—including minority threat, bounded rationality, focal concerns, and court communities—I examine patterns in judicial decision-making involving sex offenders. In addition, I examine sentencing trends, and as well as the role of race and ethnicity—at both the individual and contextual-level—in sentencing sex offenders.

The remainder of this chapter is organized in the following manner: first, I discuss the importance of sex offender-specific research. Second, I examine the major contributions of the sentencing literature. Third, to ground the study, I present a timeline of sentencing policy changes in Florida since the 1980s. Fourth, I present the current study’s main research questions.

Fifth and finally, I provide the structure, purpose, and contributions of the remaining chapters in this dissertation.

The Importance of Sex Offender-Specific Research

One of the central unanswered questions in the sex offender literature is whether it is useful to distinguish sex offenders from other types of offenders. Scholars disagree about the utility of examining sex offenders separately from other types of offenders. Some scholars maintain that sexual offenders are a unique population, different than other criminals and non-offenders, and that even among the population of sex offenders, important differences exist. For example, scholars have examined how sex offenders differ psychologically from both the general population and the nonsexual offender population. Fisher, Beech and Browne (1999) found that child molesters differed significantly from non-offenders on a range of psychological measures.

Specifically, child molesters are more likely to have lower self-esteem, greater feelings of loneliness and distress, and marked deficits in recognizing distress in others. Similarly, Ward,

Hudson, and Marshall (1996) found that rapists and child molesters were generally more insecure than non-offenders. However, they did not find any significant difference in insecurity between sex offenders and other nonsexual offenders. Lindsey, Carlozzi, and Eells (2001) compared juvenile sex offenders to nonsexual delinquents and to non-offending youth and found that both the sex offenders and nonsexual delinquents reported higher levels of distress than non- offending juveniles. In addition, sexually abusive juveniles displayed lower levels of victim empathy than the nonsexual offenders.

Research has also highlighted important differences within the sex offender population. For example, in one study of institutionalized patients, rapists were more likely to become sexually aroused by stories involving violent sexual encounters than patients who did not commit rape

(Quinsey, Chaplin, and Upfold, 1984). In Lalumiére and Quinsey’s (1994) meta-analysis of the efficacy of phallometric measures in discriminating sex offenders, they found that rapists were more likely than non-rapists or non-offenders to be sexually aroused by stimuli depicting coerced sex, violent or graphic images, or repeated sexual acts than by stimuli depicting consenting sex.

These findings suggest that heterogeneity among sex offenders might be substantial, especially when the seriousness of individuals’ offenses are taken into account.

Some researchers, however, question the notion that sex offenders should be distinguished from the larger offending population. One misconception is that sex offenders are more dangerous than non-sex offenders. But, as Laws and Ward (2011) have noted, sex offenders are not “self-contained deviancy machines” (p. 5). For example, recidivism rates for sex offenders are in fact lower than recidivism rates for other types of offenders. Sample and Bray (2003)

6 found that sex offenders were rearrested for any offense at a lower rate than other offenders

(excluding homicide offenders) and had one of the lowest rates of offense-specific recidivism compared to other types of offenders. Sample and Bray also found that although sex offenders were three times more likely to be arrested for a sex offense than non-sex offenders, the base rate of recidivism was still low (6 percent). They argued that since almost all of the sex offenders were not rearrested for a sex crime, there appears to be little empirical evidence supporting the assumption that offenders pose a greater and specific danger to communities than non-sex offenders.

Other scholars have argued, too, that the lifespan of sexually deviant behavior is similar to other types of criminal behavior. Sex offenders desist in patterns similar to nonsexual offenders, and the classic age-crime curve observed with general offenders (Gottfredson and Hirschi, 1990;

Gluek and Gluek, 1950; Sampson and Laub, 1993) has also been demonstrated in samples of sex offenders (Barbaree and Blanchard, 2008; Hanson, 2002; Thornton, 2006). Thus, the vast majority of sex offenders, like other violent and nonviolent offenders, eventually stop offending.

Like the majority of criminals, sex offenders are also not likely to specialize in any one particular type of crime. Lussier, LeBlanc, and Proulx (2005) found that while the criminal activity of rapists and child molesters differed, the criminal histories of sex offenders suggest a generality in deviant behavior. In other words, sexual assault is one of many types of crimes committed by these offenders. Offenders who were committing sexual assaults were also committing nonsexual crimes. Consequently, the label of “sex offender” may be too narrow to accurately describe the offender’s deviance. Given these findings and the overall diversity of criminal behavior in the sex offending population, some scholars question whether it is instructive to view sex offenders as fundamentally different from other offenders.

Against that backdrop, one important way that sex offenders are decidedly different from other violent and nonviolent offenders is that they appear to be treated differently by the criminal justice system. Recent legislation and the subsequent responses from policy-makers, law enforcement officers, and judges are built on several assumptions about sex offenders—mainly, that they are dangerous, highly manipulative, resistant to rehabilitation, or destined to repeat their crimes serially (Levenson, Brannon, Fortney, and Baker, 2007; Levenson and Cotter, 2005a;

Quinn, Forsyth, Mullen-Quinn, 2004; Sample and Bray, 2003; 2006; Sample and Kadleck, 2008;

Tewksbury, 2005). These beliefs, unsupported by the empirical literature (Edward and Hensley,

2001; Webster, Gartner, and Doob, 2006), have resulted in the establishment of several legislative actions directed solely at sexual offenders. For example, following a period of incarceration, sex offenders in many states may be evaluated to determine whether they meet the criteria to be civilly committed indefinitely. In addition, sexual offenders may have significantly more challenges during reentry due to residence restriction and registration policies than other offenders. These policies are not used for all offenders or even all violent offenders. They are, however, clearly directed toward sexual offenders because they are viewed as being a special type of offender.

Whether sex offenders are truly different than nonsexual offenders is not the focus of this dissertation. Rather, the focus is on a distinctly different question about sex offenders: How are sex offenders sentenced? This dissertation addresses several specific questions about the sentencing of sex offenders: what types of sanctions are used by judges and how has this changed over time? How are sentences patterned by offender characteristics? What is the role of race, ethnicity, and court context in sentencing decision making?

Scholars have argued that due to the preponderance of policies aimed at sex offenders, a new class of criminal has emerged—the “Sex Offender” (Edwards and Hensley, 2001; Huebner and

Bynum, 2006). In direct response to this emerging offender class, the criminal justice system has enacted unique and increasingly punitive rules guiding their supervision, management and reentry. Yet little is known about how sex offenders are officially sanctioned. The goal of this dissertation is to advance the sex offending literature by focusing specifically on sentencing.

Understanding how the justice system responds to this group in particular highlights how punishment functions in society and the ways in which that punishment varies across different types of offenders.

The Importance of Sentencing Studies

Detailed examinations of sentencing are an important contribution to criminological scholarship, especially for theories of crime and social control. One of the major theoretical frameworks underpinning sentencing studies is the racial or ethnic threat perspective (e.g., Britt,

2000; Crawford, Chiricos, and Kleck, 1998; Fearn, 2005; Ulmer, 1997; Wang and Mears, 2010).

This theoretical approach argues that as minority populations increase, Whites perceive this growth as a threat to their political, economic, or social position (Blalock, 1967; Liska, 1992). In response to this perceived threat, Whites use the criminal justice system as a tool of social control against those groups deemed most threatening (Liska, 1992).

Other theories argue that judicial decisions are structured by race at the individual level, as well. Albonetti’s (1991) concept of bounded rationality is useful in understanding the role of race in sentencing. Albonetti argued that although judges attempt to make rational decisions, the information they consult is often limited. As a result, they rely on stereotypes of offender dangerousness that are intrinsically tied to race. Steffensmeier, Ulmer, and Kramer (1998)

9 argued that judges’ sentences are developed through the consideration of three key factors: offender blameworthiness, dangerousness, and practical constraints and consequences. They argued that race influences judges’ perceptions of dangerousness and the offenders’ ability to be rehabilitated.

The sentencing stage provides a setting in which to explore a specific context in which race structures social responses to crime. Sentencing remains one of the most visible actions of the criminal justice system. It is also one of the most structured responses to crime, especially in jurisdictions using a guided sentencing approach. Theoretically, if the guidelines are being used, then offenders of different racial groups should be sentenced similarly. If racial disparities in criminal justice processing exist, they may be easier to identify at the sentencing stage than in other less visible or structured stages.

Sentencing research is also an opportunity to understand the broader goals of punishment in society. Criminal sentences are the first official reaction to a convicted offender, representing both practical and symbolic responses to deviant behavior. As a practical matter, the sentencing stage is the first time that the criminal justice system assigns a punishment to a specific deviant act. Prior to conviction, contact with the system was couched in the understanding that the individual was a defendant, not an offender. Once convicted, the sentencing stage is the first official response to the offender. Symbolically, sentences represent society’s reaction to antisocial behavior. Theoretically, the sentence is the voice of the people, alerting both the offender and any would-be offenders that certain behaviors will not be tolerated, and when performed, will be dealt with accordingly.

Sentencing also represents an important benchmark in the rehabilitation of convicted sex offenders. Treatment services for non-convicted sex offenders (i.e., individuals engaging in sex

10 offending but who are not yet identified) are limited. Additionally, these offenders are often hesitant to seek treatment services for fear that they will be reported. However, upon sentencing, offenders may be presented with the first opportunity to receive treatment, whether in prison or as part of a community supervision plan. There is some debate about the quality and efficacy of treatment in prison. One study found that half of all sex offenders in prison treatment programs are there only for incentives, such as early release considerations (Terry and Mitchell, 2001).

Because of the lack of uniformity in prison treatment programs, the quality of these programs may be questionable (Terry, 2005). Still, there is some emerging research that has found positive effects of prison treatment on recidivism (Duwe and Goldman, 2009) and thus, the sentencing stage may be the first step in the offender’s path to rehabilitation.

Being convicted and sentenced can also serve as a potential “knifing off” point for sexual offenders. Some research has demonstrated that sexual offenders who are identified and prosecuted by the criminal justice system are less likely to reoffend than offenders who are not reported. Pryor (1996) noted that some offenders reported feeling a weight lifted off their shoulders once they were publically exposed: “It did feel wonderful when it came out. Like,

‘Ahhhhh, it won’t happen again’” (p. 247). The sentencing stage may in fact play a role in stopping an offender’s pattern of sexually abusive behavior (to the extent that examples like this one are typical).

In sum, the function of sentencing goes beyond the simple application of a punishment.

Rather, sentencing can also be viewed as an important turning point for the offender that has direct implications for the safety of the larger community. It is important, then, to understand the factors that shape sentencing decisions. By better understanding these processes, communities may be better equipped to maximize the benefits of sentencing.

Setting the Stage—Sentencing Policy Changes in Florida

Prior to October 1983, judges in Florida had considerable discretion in sentencing decision- making (Florida Department of Corrections, 2011). Unstructured sentencing policies allowed judges to choose from a range of sanctions, from fines up to imprisonment. Some statutory maximums penalties were in place though. For third degree felonies, the maximum penalty was 5 years. The maximum number of years allowed for second degree felonies was 15 years. First degree and life felonies could receive a maximum of 30 years and lifetime incarceration, respectively. In addition, most offenders sentenced to prison were statutorily eligible for parole.

The first round of sentencing guidelines in Florida appeared in 1983. Stemming from concerns over the actual amount of time served and the lack of uniformity in sentences, these guidelines were designed to structure judges’ decision making. The 1983 Sentencing Guidelines contained 9 different worksheets for separate offenses (e.g., murder, sex offense, drug offense) wherein points were calculated for offense type, prior record, victim injury, and legal status. The total points then corresponded to a particular sanction. Judges were allowed to depart from these guidelines as long as written justification was provided.

During this time, the correctional system in Florida began to experience significant resource problems for three key reasons. First, the increase in incarcerations stemming from the war against drugs (specifically crack cocaine) increased the state prison population. Second, Florida’s population was growing, thereby increasing the pool of potential offenders. Third, mandatory minimum sentencing legislation was an unfunded mandate. As a result of these resource deficits and increasing prison population, the average percent of time served decreased substantially.

In response to these concerns, a new formulation of the state sentencing guidelines emerged in 1994. Enacted through the Safe Streets Act, this initiative acknowledged that prison resources

12 were scarce and should be focused on serious, violent, and repeat offenders. Several important policy changes were made. For example, the 1994 guidelines repealed the use of basic gain time, where inmates received an automatic reduction of ten days per month sentenced, cutting imposed incarceration periods by a third. In addition, the guidelines ranked all non-capital offenses into ten offense severity levels (1 being the least severe and 10 being the most severe). Points were assigned to each ranking on three specific areas: primary offense, additional offenses, and prior record. Points were also added for other features of the offense (e.g., whether there was injury to the victim, the offender’s legal status, whether the offender had supervision violations, etc.). The sum score determined the suggested sanction, and if custody, the length of the term. Offenders scoring 40 points or less were not recommended to receive a prison sanction. Offenders scoring

41 to 52 points were eligible for prison, but this was up to the judges’ discretion. Finally, offenders scoring 53 or more points were recommended to serve a prison term. To determine the sentence length, 28 was subtracted from the total number of points to derive the total number of prison months. For example, an offender scoring 55 points would be recommended to receive 27 months in prison. These guidelines were amended as part of the Crime Control Act of 1995.

Though the basic structure of the sentencing guidelines remained, point values were increased in many areas. In addition, the guidelines were modified (in 1996 and 1997) to allow for increased sanction severity (i.e., prison term length).

In October 1998, Florida once again modified its sentencing policies. The new Criminal

Punishment Code featured both structured and unstructured sentencing policies. This allowed judges to exercise greater discretion in upwardly departing from the guidelines. In addition, the new code lowered mandatory prison thresholds and lengthened possible sentences.

There were several notable differences in this new formulation of sentencing policy. For example, all felony offenders were now eligible to receive prison sentences. Sentence lengths were generally much longer than were allowed in the previous guidelines. If an offender scores more than 44 points, the minimum sentence is decided by subtracting 28 from the total point score and then decreasing that by 25 percent. If an offender scores 44 points or less, the lowest recommended sentence is a non-state prison sanction.

Florida’s approach to sentencing has undergone significant changes over the past thirty years.

In addition, media attention to cases of sexual abuse (e.g., Jessica Lunsford) and sex offender policy (e.g., homeless offenders, civil commitment, and absconded offenders) has placed Florida in the national spotlight. In addition, the size of Florida’s sex offender population is large enough to allow for advanced statistical modeling of sentencing decisions. For these reasons, Florida is a particularly useful site to advance the scholarship on sex offender sentencing practices and the factors that influence such practices. However, the state’s official approach to punishing this particular group of offenders has not been well-documented. This dissertation is one of the first studies to examine official punishment approaches available for sex offenders in Florida.

Current Study

The goal of this dissertation is to further scholarship on sex offenders by examining sentencing practices for this group of offenders. To advance knowledge in this area, I focus on three research topics: punishment philosophy and approach, patterns and trends in sentencing sex offenders, and the role of race and ethnicity in sentencing decision-making. To that end, and drawing on prior theory and research, the following research questions will be addressed:

Research Question 1: Why do we punish sex offenders?

Research Question 2: How are sex offenders being sentenced in Florida?

Research Question 3: To what extent does race—at the individual and contextual level— influence the sentencing of sex offenders in Florida?

Research Question 4: To what extent does ethnicity—at the individual and contextual level— influence the sentencing of sex offenders in Florida?

Description of Substantive Chapters

To examine the research questions listed above, this dissertation contains four substantive chapters that examine issues in sex offender punishment and sentencing. Separately, each chapter addresses specific questions pertinent to understanding sex offender sentencing and the forces behind these sentencing decisions. Collectively, the chapters work to advance scholarship on sex offenders and formal responses to sex crimes.

Chapter 2 examines the history of sex offender punishment and how these approaches have changed over time. By describing different punishment philosophies and applying these approaches to offender narratives, this chapter presents the sociology of sex offender punishment. In this chapter, I argue that the current punishment approach to sex offenders is structured by incapacitation and retribution, beyond what we might expect from the general move toward punitiveness.

Chapter 3 contributes to the sex offender literature by describing the state of sex offender sentencing from 1995 to 2010 in Florida. Specific attention is paid to types of sanctions used, sentence lengths, and differences in sentencing outcomes by race and gender. The descriptive

15 analyses found in this chapter provide the context for addressing other research questions about sex offender sentencing. This chapter specifically examine whether judges in Florida have

“answered the public’s call” for harsher sentences for sex offenders.

Chapter 4 investigates the legal and extralegal factors that predict sentence decisions from

2000 to 2010. This chapter advances the literature by focusing specifically on sex offenders.

Although prior research has found that minority males are at a disadvantage in general sentencing, these patterns have not been systematically examined with a large sample of sex offenders. Thus, this chapter examines whether the race or ethnicity of the sex offender influences the type (incarceration versus community sanction) and length of sentence received.

This is the one of the first attempts to understand how sentencing, race, and ethnicity operate specifically for sex offenders.

Chapter 5 extends the analyses in Chapter 4 by examining the role of county context in sentencing sex offenders. Prior research has highlighted the importance of examining context in sentencing decision-making (Britt, 2000; Johnson, 2005; Ulmer and Johnson, 2004). This chapter investigates the effect of county-level racial and ethnic demographics on sex offender sanctions. Prior research has demonstrated the effects of these context variables on sentencing offenders, but no studies have examined their effects within a sample of sex offenders. This chapter addresses this limitation.

Chapter 6 concludes with a summary of findings from the previous chapters and a discussion of implications for future theoretical development. Suggestions for further research in the area of sex offender sentencing are also provided.

CHAPTER 2

A HISTORY OF SEX OFFENDER PUNISHMENT

Introduction

Few crimes generate the same level of public outcry as sexual offenses. Beyond the tragic nature of sexual victimization lies the notion that sex offenders pose a greater risk to community safety than other types of offenders. This view, however, has varied over time. Perceptions of sex offenders and the best means to punish them have changed throughout history, generally moving between punitive and rehabilitative models (Leon, 2011; Terry 2005; Zilney and Zilney,

2009). In recent years, the public has called for harsher punishments, longer sentences, and increased detention of sexual offenders. Legislators and policy makers have responded accordingly (Meloy, Curtis, and Boatwright, 2013)—sex offenders now face greater rates of detention, longer periods of incarceration, and increased supervision once released back into the community. Some scholars have noted this renewed interest in sex offender punishment and management and have questioned the utility of these specific approaches to control sex offenders

(Cohen and Jeglic, 2007; Meloy et al., 2013; Willis, Levenson and Ward, 2010).

Another view of increased penalties for sex offenders is that they represent a part of the larger, more general trend towards punitive responses to all offenders (Leon, 2011; Mancini and

Mears, 2010). Indeed, Leon (2011) maintained that sex offender punishment is best understood as one example of a move towards punitive responses to offenders and not as “…a specific example of our extreme and particular hatred of sex offenders…” (p. 172). Put differently, there is nothing unique about the approach taken with sex offenders, from a punishment perspective.

Here, the issue is not sex offender punishment, but rather, punishment in general.

Thus, an interesting question is raised: is the approach to punishing sex offenders different than non-sex offenders? To examine this question, one must examine sex offender punishment through both a historical lens and a contemporary lens to situate sex offender punishment within larger punishment philosophies and goals. To that end, the purpose of this chapter is to contribute to the punishment literature by examining sex offender punishment philosophy and practice. More specifically, this chapter examines historical and contemporary approaches to sex offender punishment and management to determine whether approaches to sex offender punishment differ from general offenders.

The remainder of this chapter will proceed as follows. First, an overview of general punishment philosophies will serve as a foundation for which to understand the reasoning underpinning different approaches to punishment generally, and sex offender punishment specifically. With each punishment philosophy, specific examples involving the punishment of sex offenders will be included as illustration of punishment philosophies in practice. Second, a historical review of sex offender punishment practices (from 1880 to present) will be presented to show variation in responses to sex offenders. Third, a discussion of patterns and trends in sex offender sentencing is offered to connect punishment philosophy with approaches in sex offender punishment. Here, I argue that the current trend toward promoting sex offender management policies can best be understood as a form of punishment. Fourth, the paper concludes with a return to Leon’s argument that trends in punitiveness are not unique to the sex offender population. In this discussion, I evaluate her argument on conceptual and empirical grounds.

Fifth and finally, implications for future research are discussed.

Punishment Philosophies

Deterrence.

The view that punishment should be grounded in utilitarian goals emerged in the 18th century (Spohn, 2009). The writings of Beccaria, Bentham, and Hobbs were particularly influential at this time. These scholars viewed human behavior as a rational choice, whereby decisions were made based on a set of calculations to either maximize pleasure or reduce pain.

Punishment, therefore, had to be just severe enough to outweigh the benefits of crime.

They also argued that unlike punitive approaches in earlier eras that were exceedingly severe and capriciously administered, punishment instead should serve a utilitarian purpose. It was not enough to merely punish the offender for their wrong doing. Rather, punishment should provide some greater societal benefit. More specifically, punishment should be used to deter individuals from committing future crimes. Deterrence functions across two levels; at one level, the aim of punishment is to reduce offending specifically. If punishments are swift and certain, and the severity is in proportion to the offense committed, offenders who have been punished will not commit offenses in the future. At a broader level, punishment should also deter other members of society from committing similar acts (Zimring and Hawkins, 1973). Here, members of society who witness others being punished will be deterred from committing similar offense

Using sexual offending as an example, a deterrence view of behavior holds that an offender commits a sex offense because the benefits of sexual deviance outweigh the costs of that offense or the benefits of not sexually abusing. In this case, the offender chooses the offense because it will maximize his or her reward. Therefore, the purpose of punishment is to produce a scenario whereby the consequences of offending are greater than the benefits. For example, if a sex offender is given a severe punishment, deterrence theory maintains that two things happen: first,

19 the sex offender will be deterred from committing a future sex offense and second, members of the public who would have offended in the future would decide not to commit the same crime.

What makes a punishment sufficiently severe is debated, however.

Although the rational choice view of criminal behavior may have fallen out of favor, the deterrence framework influenced the development of the criminal justice system and continues to inform judicial decision-making. For example, a judge in Salem, MA, recently cited general deterrence as the reason for his longer-than-expected sentence for a sex offender. In that case,

20-year old Zachary Gray was sentenced to four-to-eight years in prison as part of a plea deal for possession of child pornography (Ireland, 2012). Although the prosecution asked for a term of one year, the judge chose a lengthier period of incarceration, arguing that a more severe sentence would serve as an example to others, saying, “This crime to me is a deterrence crime perhaps more than any other crime. This is a nationwide industry, a nationwide problem” (Ireland, 2012).

Incapacitation.

Much like deterrence, incapacitation is concerned with the utility of punishment. The aim of punishment is to reduce the likelihood of offending. Unlike deterrence, incapacitation does not seek to deter criminal behavior by altering the terms of the cost-benefit analysis of offending.

Instead, an incapacitation framework uses punishment as a physical barrier to offending. By restricting the offender’s movement, through incarceration or other restrictive measures, the offender is simply unable to commit the crimes they would otherwise be likely to do. In this view, criminal behavior is a matter of opportunity, not choice. Consequently, punishment should be aimed at reducing the opportunity to commit crime by determining the risk that the offender poses to society (Spohn, 2009). Offenders who pose the greatest risk should be the most restricted.

Like deterrence, incapacitation works at two levels. In selective incapacitation, the focus is on specific offenders and their crimes. The goal of selective incapacitation is to predict which offender will be likely to reoffend and bar them from this opportunity. At a second level, with collective incapacitation, all individuals who commit a certain type of crime (e.g., aggravated sexual assault) will be incarcerated because they are viewed as a danger to the community

(Spohn, 2009). Thus, as a group, dangerous offers will be physically restricted from committing future crimes.

The incapacitation of sex offenders is a frequently cited justification for punishment. Sex offenders are often viewed as the most dangerous kind of offender, one who is violent, unremorseful, and destined to reoffend. High profile cases from the media illustrate these concerns. The death of Megan Kanka in 1994 was at the hands of Jesse Timmendequas, who had two prior convictions for sexual assault but was back in the community (Wood, 2005). Jessica

Lunsford was killed in 2005 by John Couey, a convicted sex offender (Janus, 2006). Despite the infrequency of stranger-related sex offenses (Fisher, Cullen, and Daigle, 2005) and the even rarer sexual homicide (Meloy, 2000), these cases personify sexual victimization and elevate the perceived behavior of these offenders from tragic but rare to tragically commonplace.

Accordingly, policy-makers and members of the public often cite these cases when calling for the incapacitation of sex offenders as a matter of policy, despite the tricky nature of predicting sexual reoffending (Zimring, Piquero, and Jennings, 2007). Judges also cite the value of incapacitation as a guiding punishment framework. For example, in Montana, Robert Wilkins was sentenced to 22 years in prison after impersonating an 11 year-old female in order to entice a

10 year-old male to send sexually explicit videos to him (Florio, 2011). The judge in that case

21 said that he was doubtful that Wilkins’ sentence would deter others from committing similar crimes, but rather, incarcerating Wilkins would keep the community safe.

Rehabilitation.

Rehabilitation has been a prominent feature of punishment practices throughout history.

Rotman (1990) defines rehabilitation as “…a right to an opportunity to return (or remain in) society with the improved chance of being a useful citizen and staying out of prison” (p. 3).

Though the specific forms of rehabilitation have changed over time—the penitentiary models in the 19th century, indeterminate sentencing, or socio-medical approaches to behavior modification—the intended outcome is the same: punishment approaches should be based on the offenders’ needs with an eye toward reform (Spohn, 2009). The intended outcome extends beyond deterring future criminal behavior, though. In distinguishing rehabilitation from deterrence, Rotman (1990) argued that rehabilitation “…goes far beyond what a behaviorist would call negative reinforcement. It encompasses a broad spectrum of constructive interventions, positive human services, and opportunities that tend to reduce offenders’ involvement in further criminal activity,” (p. 9).

Some judges cite the importance of rehabilitation in the sentencing of sex offenders. A trial in Washington serves as a good example. In that case, Curtis Schell was sentenced for the rape of an adolescent female (“Child rape sentence upsets family, prosecutors,” 1992). The judge sentenced Schell to a 95-month suspended sentence with the provision that Schell be incarcerated for six months and undergo sex offender treatment. The prosecutor and the victim’s family were surprised by what they saw as a lenient sentence. In issuing his decision, however, the judge cited rehabilitation as a motivating factor and argued that imposing a stricter sentence would only serve to satisfy the victim’s family.

Retribution.

The deterrence, incapacitation, and rehabilitation frameworks represent utilitarian goals of punishment where the focus is on future behavior. In contrast, the retribution perspective is grounded in the notion of just deserts, which focuses on the crime that was already committed

(Spohn, 2009). Here, the purpose is to punish the offender for what he or she did, not prevent what he or she may do. Thus, the nature or amount of punishment needed is determined by the seriousness of the crime committed.

Spohn (2009) identified some challenges with the retributive approach to punishment. First, this framework requires a rank ordering of crimes—that some crimes (e.g. aggravated sexual assault) are more serious than others (e.g., petty theft). This ordering may not be quite so simple, however. Among sex offenses, how do we determine universally that one offense is more serious than another? Compare, for example, a case of exhibitionism in which an offender flashes a group of four teens at a mall to a case of a peeping-tom who watches an adult neighbor undress at night. In the exhibition case, there were more victims. The voyeur, on the other hand, had closer contact. Victim characteristics may structure this decision. Is the flasher’s crime more serious because he targeted teens? In determining which offender gets the harsher punishment, the natural ordering of these crimes may not be completely clear.

There is also a disagreement about the severity of the punishment needed (Spohn, 2009).

While there may be agreement that sex crimes are serious, individuals differ in how they view the best punishment options. For example, Mancini and Mears (2010) examined public opinion data about capital punishment and sex offenses and found that half of respondents supported the death penalty for the sexual abuse of a child victim. When the victim was an adult, only 27 percent of respondents supported the use of capital punishment.

Despite the challenges in implementing a retributive framework, there is something about a just deserts framework—where an offender gets what he or she deserves—that resonates with the public (Chaffin, 2008) and judges (Nhan, Polzer and Ferguson, 2012). For example, Judge

Anthony Beltrami sentenced Jennifer Barbarics to 8 to 24 months in prison for having sexual relations with a 15 year-old boy (Yates, 2011). The defense asked for probation, but the judge, citing the potential double standard involving a female defendant and male victim, chose incarceration, saying, “Retribution is appropriate in this case, because of what you did” (Yates,

2011).

Historical Overview of Sex Offender Punishment

The previous section examined the philosophical underpinnings of punishment for offenders.

As that discussion showed, the purpose of punishment is multifaceted. Some scholars call for utility in punishment while others seek retribution. Against that backdrop, we now turn to a discussion of sex offender punishment over the past 130 years. The purpose of this section is to examine five major eras in punishment approaches for sex offenders and place these punishment techniques a historical context.

1880s to 1930s: Emergence of the Study of Sexual Deviance.

Sexual deviance first came into scholarly focus in the late 19th Century, and the initial approach to understanding sexually abnormal behavior was grounded in the notion that sexual deviance was due to psychological pathology (Hauser, 1994). Krafft-Ebing (1886) was the first to classify sexual disorders as medical or psychiatric problems. Under that framework, sexually deviant behavior—which at the time included sexual behaviors such as homosexual behavior, fetishism, and masturbation—was thought to be a pathological and dangerous for society. Other scholars, such as Ellis (1899) and Freud (1905) questioned the notion that sexual deviancy posed

24 a great danger to society, but still argued that it was a product of psychological or personality disorders, deeply rooted, and unlikely to respond easily to treatment.

It was also during this time that the United States had its first panic over sex offenders

(Jenkins, 1998; Terry, 2013). The focus at this time was on sexual perversion and deviant sexual acts, primarily homosexuality and sexual promiscuity. Activists worked to change age of consent laws and the exploitation of children (Jenkins, 1998). It was also during this time that some notable cases of sexual homicide fueled concern over “sexual fiends.” Attention was diverted from sexual immorality to “sexual insanity.” With extreme cases of sexual violence, the offender was usually executed or imprisoned (Jenkins, 1998). Less serious cases of sexual deviance proved more difficult to address and the range of available criminal justice options seemed inappropriate for these particular crimes. By the end of the 1920s, the panic over sexual fiends dissipated and in its place, a new concern over child molestation and incest gained prominence

(Terry, 2013). The compulsivity of these crimes seemed to suggest that it was not rational choice, but rather, a psychopathy or mental disturbance that led to sexual offending. As the view of offenders moved from perverts to psychopaths, the focus on punishment shifted as well.

1937 to 1950s: Sexual Psychopath Laws and the Medical Model.

Informed by research from prior decades and the emerging view of sexual deviance as a form of psychopathy, several pieces of legislation aimed at curbing unwanted sexual behavior were developed in the 1930s (Terry, 2013). There was a renewed focus on child molestation and incest

(Jenkins, 1998). The criminal justice system was still concerned with sexual immorality, though.

Most of the arrests during this period were actually for sexual offenses considered to be nuisance crimes, such as homosexuality or sexual activity in public (Terry and Ackerman, 2009). That

25 said, there was an emerging policy focus aimed at reducing sex offending, especially child sexual victimization.

The view of sex offending at this time was rooted in psychology. Scholars argued that sex offenders were mentally ill and that the best response to these mentally ill offenders was medical intervention (Zilney and Zilney, 2009). Accordingly, laws were developed that allowed the involuntary commitment of sexual psychopaths to mental health facilities. In lieu of incarceration, sex offenders designated as sexual psychopaths would be committed to a mental institution until they were sufficiently rehabilitated. Michigan was the first state to enact sexual psychopath laws and many states followed suit over the next several decades. Though states varied in their wording of this legislation, they typically involved offenders convicted of a sex crime related to compulsive pathological behavior which makes it likely for a sex crime to be repeated (Zilney and Zilney, 2009). State legislatures also did not specify the criteria needed to determine whether an offender was rehabilitated, so there was variation in when and how offenders would be released back into the community (Terry, 2013)

Despite the popularity of sexual psychopath laws in the states, this approach to sex offender punishment was not universally accepted (Terry, 2013; Zilney and Zilney, 2009). According to

Terry and Ackerman (2009), some scholars argued that these laws were based on erroneous assumptions about sex offenders and thus lacked the justification for enacting these laws. Other scholars worried about a net-widening effect, in that sex offenders who did not exhibit a high risk of reoffending would also be civilly committed. For example, Terry (2013) noted that vague language in states’ sexual psychopath legislation resulted in the commitment of statutory offenders as sexual psychopaths. By the end of the 1950s, there was an ideological shift from the medical model and individual explanations for sexual deviance. However, medical interventions

26 continued and approaches developed during this period (e.g., castration) remain in use today

(Scott and del Busto, 2009).

1960s to 1970s: Social Transformation, Sexual Revolutions and the Rehabilitative Ideal

During the 1960s and 1970s, the United States underwent a cultural transformation in views about sexual behavior. Earlier work by Kinsey (1948) brought national attention to human sexuality, perceived norms, and actual sexual behavior (Leon, 2011). In the decades that followed Kinsey’s report, the feminist movement challenged existing notions of female sexuality ownership and male sexual entitlement.

There were substantial changes to legal responses to sex offenders during this time as well.

Though many states still had sexual psychopath laws on the books, few utilized indefinite commitment. Legal scholars at this time challenged the labeling of sex offenders and advocated for the restructuring of sex laws (Jenkins, 1998). Legal challenges were levied against civil commitment. According to Jenkins (1998), “…it was the legislation concerning sex offenders that was portrayed as the pressing social problem, not the offenders themselves” (p. 117).

Changes in approaches to offender rehabilitation were also emerging at this time (Terry,

2013). Sexual deviance was no longer viewed solely as an individual pathology. Rather, deviant sexual urges were seen as behaviors, like any other, that could be adjusted. Accordingly, rehabilitation moved from commitment to behavioral modification. The emergence of therapy, by both offenders and non-offenders, challenged the way mental health and treatment was perceived.

1980s: Satan, Stranger Danger, and a Return to Punitiveness.

By the late 1980s, a new panic emerged in the United States that once again changed the direction of responses to sex offenders. After a cultural change surrounding the discussion of

27 personal issues, such as mental health or sexual victimization, victims in the 1980s were more likely to directly address their victimization (Terry, 2013). The stigma of being a victim, though still present, was lifted somewhat by the perception that experiences with sexual victimization were more common than was once believed.

It was also during this time that victims began to report cases of occult-related sexual victimization (Jenkins, 1998). Hundreds of individuals, both adults and children, claimed that they were sexually assaulted during the commission of satanic rituals (Jenkins, 1998; Terry,

2013). One of the most famous cases involved the McMartin preschool in California (Jenkins,

1998). Students reported that they participated in ritual acts of sexual victimization with the school staff. Through questionable forensic investigation, students reported underground tunnels, black robes, and masks used in their abuse (Terry, 2013). In cases across the county, alleged victims reported similar occult-related sexual victimization. Despite its sudden prominence, none of the reported cases of satanic sexual abuse were substantiated (De Young, 2004; Jenkins,

1998).

The legal and political attention being placed on acts of ritual sexual abuse by persons unknown illustrates a return to the “stranger danger” of earlier years. With what seemed like a sudden flare-up of reported cases of sexual assault, the public become increasingly worried about the danger that sex offenders represented (Terry, 2013). It was during this decade that incarceration of sex offenders increased substantially (Leon, 2011). This deepening concern about sex offenders in communities, plus the prominence of several high-profile cases of sexual murder, would help restructure America’s response to sex offenders once again.

Current Approaches to Sex Offender Punishment.

During the 1990s, there was a significant decline in the rate of reported rape and sexual assault. Data from the National Crime Victimization Survey revealed that from 1993 to 2004, sexual victimization of teens dropped by nearly 70 percent (Finkelhor and Jones, 2006).

However, there were also some high-profile sex assault cases, usually ending in the deaths of child victims, which gained publicity during this time. Reporting on these cases were not rare events; in fact, there was a substantial increase in media accounts of sexual violence (Leon,

2011; Sample, 2001). The result, much like in earlier periods, was a public that demanded harsher penalties for these offenders (Mancini, 2013).

The justice system responded with judicial and legislative penalties aimed specifically at sex offenders (Mancini, Barnes, and Mears, 2013; Sample, 2011). From the courts, sex offenders started receiving periods of incarceration more often, and when imprisoned, sex offenders served for longer periods of time. Although some scholars have argued that the increases in sanction severity for sex offenders were part of a larger push towards stricter sentences for all offenders

(Leon, 2011), the upward trend in incarceration was most pronounced for sex offenders.

The use of civil sanctions as additional penalties increased during this era, as well (Travis,

2005). Civil sanctions, such as loss of voting rights, restriction from public housing, and occupational consequences, typically occur outside of the sentencing process and may not be viewed as punishment. But as Travis argues, these sanctions have similar consequences as traditional sentencing approaches and thus can be considered a different form of punishment. Sex offenders especially have been on the receiving end of a legislative move towards civil punitiveness.

Registration and community notification. Following the abduction of Jacob Wetterling, states passed legislation that required all sex offenders to register and maintain compliance with a sex offender registry (“Jacob Wetterling Crimes Against Children and Sexually Violent

Offender Registration Act,” 1994). Two years later, after the rape and murder of Megan Kanka in New Jersey, states were required to notify the public about sex offenders living within their communities (Sample and Evans, 2009). Although these pieces of legislation were drafted separately and with different outcomes in mind (i.e., a law enforcement tool in Wetterling and a resource for the public in Megan’s Law), the two policies have essentially become one with the advent of web-based sex offender registration.

States vary in their implementation of sex offender registration, but there are common themes. Upon conviction of a sexual offense, or if moving to a new community, sex offenders are required to register their address with local law enforcement. In most states, offenders are placed on a publically-accessible website which contains address information and history, offense history, license plate numbers, and a current photograph (Sample and Evans, 2009).

Other states require offenders or law enforcement officers to personally notify neighbors about their sex offender status.

Residence restrictions. In addition to address registration, sex offenders housing options are also restricted (Levenson, 2009). Once returned to the community, sex offenders in over 30 states are barred from living within a set distance from places where children congregate, such as schools, parks, playgrounds or movie theaters. Legislators cite the importance of protecting children from repeat sex offenders as the motivation behind this legislation (Levenson and

Cotter, 2005). Beyond state-level restrictions of 500 to 1,000 feet, many local ordinances are enacted that increase the perimeter to 2,500 feet (Meloy, Miller, and Curtis, 2008).

Scholars have questioned the utility of residence restrictions for sex offenders. Levenson

(2009) argued that these policies were based on the assumption that children are most at risk from previously-identified offenders or strangers when in reality, most cases of victimization involved “new” sex offenders and victims are usually well-acquainted with their abuser.

Levenson and Cotter (2005) maintained that residence restrictions apply an unreasonable barrier to community reentry and may serve to increase stress or transience among offenders. Despite these concerns, residence restriction policies remain a popular course of action among community members (Levenson, 2009) and parents (Mancini, Shields, Mears, and Beaver,

2010).

Civil commitment. In the 1990s, public concern over sexually violent predators led to the reestablishment of civil commitment policies (Terry, 2013). Unlike sexual psychopath laws common five decades earlier, which used civil commitment in lieu of incarceration, sexual violent predator [SVP] laws in the 1990s used commitment as a follow-up to incarceration

(Harris, 2009). Although states varied in their implementation of civil commitment, SVP laws work generally in the same fashion. Before an offender is released at the end of the term of incarceration, he or she is assessed by a board of examiners. If it is determined that the offender is a danger to society—that he or she is likely to commit another sexual offense—the offender is civilly committed to a SVP facility until rehabilitation is achieved (Terry, 2013).

Scholars have questioned the utility and impact of civil commitment legislation in the prevention of sexual assault. For example, Ackerman, Sacks, and Greenberg (2012) were skeptical that civil commitment could be expected to be effective in reducing rape and sexual assault by their very design. Civil commitments, by design, should identify the small proportion of sex offenders who pose the greatest risk of reoffending. However, the authors argue that given

“…the small number of those civilly confined, and the modest likelihood that they will commit a violent sexual offense after release, the number of rapes that are prevented by the confinement is inherently very low” (p. 865). Indeed, after examining state-level data from 1970 to 2002,

Ackerman and colleagues found that the implementation of civil commitment, among other pieces of sex offender-specific legislation, did not reduce rates of sexual assault.

Adam Walsh Act. In 2006, the Adam Walsh Child Protection and Safety Act was signed into law. Named for Adam Walsh, a 6 year old boy who was abducted and murdered, the Adam

Walsh Act [AWA] required states to comply with updated and standardized approaches to sex offender punishment and management. The Act set forth several provisions. All states were to submit sex offender information to a national database. Sex offenders will be grouped according to risk, where Tier 3 represents the most serious offenders who will be have a lifetime registration requirement, Tier 2 represents mid-level offenders who must register for 25 years, and Tier 1 contains lower-level offenders who must register for 15 years (Terry and Ackerman,

2003). AWA also calls for retroactive registration. For example, if a sex offender was convicted in 1985 of a sex offense, he or she would not be required to register as the conviction occurred prior to the enactment of the sex offender registry. However, new AWA provisions stipulate that if the offender receives a new conviction for any offense (e.g., writing a bad check), he or she must be placed on the registry. The Act also calls for increased penalties for failing to register.

Specifically, offenders who are not compliant can be charged with a felony and imprisoned for ten years. In addition, the Act also requires sex offender registration for juveniles (age 14 and older) convicted of aggravated sexual abuse (Harris, Lobanov-Rostovsky, and Levenson, 2010).

According to the National Conference of State Legislatures [NCSL], 16 states were compliant with AWA provisions in January 2013: Alabama, Delaware, Florida, Kansas,

Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, Pennsylvania, South

Carolina, South Dakota, Tennessee and Wyoming (NCSL, 2013). Other states have reported trouble implementing the AWA provisions, citing budgetary issues and concerns over juvenile registration (National Juvenile Justice Network, 2012).

Patterns and Trends in Sex Offender Punishment

This chapter has thus far examined punishment philosophies and changes in approaches to sex offender punishment throughout history. Two main questions emerge from this review: 1) what patterns in sex offender punishment approaches have developed over time; and 2) do trends in punishment between sex offenders and general (i.e., non-sex) offenders differ? We now turn to these questions.

Patterns in Sex Offender Punishment.

Examining the evolution of sex offender punishment during the last century shows that approaches to sanctioning sexually abusive individuals are varied. Historically, punishment approaches have moved between utilitarian, therapeutic and retributive frameworks. In recent years, however, the focus on rehabilitation has been replaced with an emphasis on harsher punishment. Under the current era, punishment approaches for sex offenders can best be understood as functions of incapacitation and retribution.

The underlying theme or philosophy driving recent “get-tough” legislation for sex offenders is incapacitation. For example, residence restrictions seek to limit offenders’ access to children.

Similarly, sex offender registration attempts to limit contact through community notification.

The purpose of castration is to remove the physical urge to sexually offend. Some states’ laws even attempt to remove sex offenders from specific community functions, such as church attendance or Halloween participation. In each case, the underlying notion is that to stop sexual

33 abuse (primarily of children, irrespective of the offenders’ prior victim selection), the State must remove the opportunity to offend. This approach eliminates the offender’s risk for reoffending from the punishment decision-making process. Here, the view is that sex offenders are predators, unlikely and unwilling to be rehabilitated, and likely to reoffend. Following that logic, the only way to stop sexual offending is to restrict the opportunity to offend.

In addition to the theme of offender incapacitation is the philosophy that sex offenders deserve harsh punishment because they are the “worst of the worst.” The purpose of punishment under this framework is not to reduce future crime but sanction the offender for the crime already committed. Because sex crimes are viewed as one of the worst forms of criminal behavior, the resulting punishment should be as severe as possible (e.g., prison, lifetime sentences, and penalty of death).

One could argue that there is a deterrence framework at work in sex offender sanctioning, as well. In this view, the proliferation of sex offender legislation sends a message to would be and current offenders that the State is addressing the problem of sexual abuse seriously. However, much of this legislation is founded on the notion that sex offenders cannot be deterred. For example, the logic of residence restrictions, community notifications, and castration rests on the assumption that sex offenders cannot ignore the impulse to sexually offend. If that is true, then sex offenders cannot be deterred through actions by the State. Thus, the deterrence philosophy is not logically consistent with the view of sex offenders or with the logic of sex offender punishment policy.

Trends in Punishment.

Do trends in punishment differ between sex offenders and non-sex offenders? If one restricts their review to incarceration only, one would get the impression that trends in sex offender

34 punishment are quite similar to trends for non-sex offenders. In the last few decades, there has been a substantial move towards prison for all types of offenders. Incarceration rates, sentence length, and proportion of time served for all types of offenders have increased significantly in recent years. Examining only incarceration would suggest that sex offenders are going to prison more often, but so are drug offenders and violent offenders.

However, sex offenders are punished in ways that extend past incarceration. Once their term of imprisonment is over, released sex offenders are subjected to a wide-range of punitive management techniques. They must register their address information (at minimum) to local law enforcement where it is subsequently released to the public and their housing options are restricted. As a point of comparison, imagine that a felon convicted of murder is released from prison. Once back into the community, there is no online list of released murderers accessible to neighbors. Sex offenders must remain in contact with local law enforcement and register their address for anywhere between 10 years through the rest of their life and are subjected to community notification. Released murderers, in contrast, are not required to submit to such notification policies. Since most sex offender laws are created with the idea of protecting children specifically, a second example involving child abusers might be helpful. An offender who exposes himself to a child will be placed on the offender registry. An offender who physically (but not sexually) abuses a child will not be subjected to community notification, even if the harm incurred was greater.

What these examples suggest is that the label of “sex offender” carries with it a more extensive and long-lasting punishment experience than other offender labels. When examining the punishment of sex offenders as a whole, including official sentences and reentry policies, one concludes that sex offenders are, in fact, being punished differently than non-sex offenders.

Discussion and Conclusion

The legal and therapeutic response to sexual offending is a dynamic process. Influenced by history, ideology, and public concern, the way the nation responds to sex offenders has varied drastically since concern over sex crimes first emerged. In recent years, the U.S. has experienced a return to punitiveness for sex offenders. Sex offenders are serving longer periods of incarceration and must comply with a host of post-incarceration supervision strategies, including longer periods of registration. Recent legislation has extended this punitive approach to juvenile sex offenders as well.

A review of punishment philosophies and the evolution of sex offender punishment highlights two main ideas. First, although the purpose of sex offender punishment has varied over time, current punitive practices are grounded in incapacitation and retribution philosophies.

Most policies have been created under the assumption that sex offenders cannot be rehabilitated and thus, the State has employed what it views as barriers to offending. Second, although all offenders have experienced harsher penalties over the past three decades, sex offenders have experienced a greater range of punishment, often occurring after their official sentence is over.

With these findings in mind, I now return to Leon’s (2011) argument that sex offender punishment is best viewed as one example of overall punitiveness in an age of incarceration. Her argument suggests that although punitive policy responses to a frightened public was a necessary condition for the substantial increase in sex offender punishment in recent decades, there are other important factors in this process. Specifically, she suggested that “…quantitative trends in sex offender punishment are better understood as part of a tailwind effect caused by general increases in punishment.” In other words, increased punitiveness towards sex offenders is just one specific example of a trend towards general punitiveness.

The prior discussion of patterns and trends in sex offender punishment indicates that Leon’s argument is limited in two important ways. The first limitation is a conceptual issue. How does one define punishment? In discussing sex offender punishment trends, Leon’s analysis focused on sex offender incarceration trends, noting similarities to general offender punishment. In doing so, Leon ignored other types of punitive approaches to sex offenders that are not features of general offender punishment. Leon argued that the sex offender prison population remained fairly stable from 1940 to 1980, a time when perceptions of sex offender dangerousness were changing. It has only been recently that sex offender incarceration has increased substantially, at a time when incarceration for other offenders was also increasing. To be sure, the increased use of incarceration over the past three decades has not been limited to sex offenders. Policy-makers supported enhanced punishments and greater rates of incarceration for all offenders, especially drug offenders (Pratt, 2009). Sex offenders were certainly not the only group of offenders to feel the brunt of the incarceration binge. But the specific focus on incarnation excludes other forms of punitive penal policy. Sex offenders must comply with a host of post-incarceration rules while other offenders do not.

The second limitation of Leon’s argument is empirical. How should scholars measure punishment and determine whether punishment is different for certain groups of offenders? Leon examined sentencing trends in California from 1950 and 1980 and found that 45 percent of the variation in sex offender incarceration rates was explained by general incarceration trends. This suggests, however, that 55 percent of the variation is being explained by other factors. In addition, while data from California are instructive, they are not definitive. Sentencing data from other jurisdictions would help determine how California’s approach to punishment stands. Leon also argued that official responses to the most serious of sex crimes have been fairly consistent

37 over time. In other words, violent sexual assaults always generally resulted in a prison term.

However, what has not remained consistent is the use of less restrictive sanctions (e.g., probation) for less serious offenses and changes in punishment approaches within this group may not be measured by incarceration rates.

This review highlights important areas for future research. First, scholars should examine sex offender sentencing trends in different geographical contexts. Relying on a handful of states is instructive but limiting. Therefore, studies of different states’ punishment trends would be helpful in understanding official (i.e., criminal) sanctions for sex offenders.

Second, research on civil sanctions for sex offenders should also be extended. Although some of the most popular are presented in this chapter, cities and states have a wide variety of laws pertaining to sex offender behavior, including castration (Scott and del Busto, 2009), GPS monitoring (Wright, 2008), and even Halloween participation (Chaffin, Levenson, Letourneau, and Stern, 2009). Evaluation research should be conducted to determine whether these approaches are not only effective, but also whether they serve punitive functions as well. Further, research should continue to examine how civil sanctions are differentially experienced by sex offenders, as this may have implications for supervision compliance and reoffending.

Third, states should undergo a cost-benefit analysis of their approach to sex offender management. In an unexpected turn, some states have rejected the AWA compliance requirement

(forgoing 10 percent of federal funding) due to the burden compliance places on states as well as a philosophical rejection to the notion of registering juveniles. As legislatures expand their approaches to sex offender punishment and management, the cost of such endeavors should be examined. Are they effective in addressing the needs of the community or do they divert funds from other, more effective programs?

Fourth, scholars should examine civil sanctions (e.g., employment restrictions, voting disenfranchisement) for non-sex offenders, utilizing a broad punishment framework to determine the function and philosophy served by these approaches. This avenue of research brings non-sex offenders back to the discussion. Although this chapter has argued that sex offender punishment is an experience unlike punishment for other types of offenders, it is also possible that non-sex offenders react to their own civil sanctions or reentry struggles in similar ways as sex offenders, and the difference between the two is a matter of type, not consequence, of punishment. This possibility should be explored.

Determining the proper punishment of crimes, especially crimes of a sexual or violent nature, is a complicated process, one that must balance the needs of the victim, the community, and the offender. Identifying the function of these approaches, whether utilitarian or retributive in design, helps situate sex offender punishment techniques into the larger punishment framework.

Doing so helps illustrate the role these approaches have in addressing issues in sex offender management specifically and highlight the function of punishment in modern society.

CHAPTER 3

A DESCRIPTIVE ANALYSIS OF SEX OFFENDER SENTENCING IN FLORIDA

Introduction

In the previous chapter, I examined sex offender punishment from historical and contemporary perspectives to investigate the ways in which sex offenders have been punished, examining both criminal and civil sanctions. This chapter, on the other hand, examines the question “How are sex offenders punished in Florida?” by focusing on official sentences for sex felons.

The need for rich, detailed descriptions of sentencing is apparent. Except for studies of sentencing in California (Leon, 2011) and national trends in sex offender sentencing (Greenfeld,

1997), there is little information about the sentencing of sex offenders in other jurisdictions.

These studies suggest that sentence severity has increased, in terms of type (i.e., a greater proportion of sex offenders being sentenced to prison) and severity (e.g., prison length). Given that sex offender punishment is changing in some jurisdictions, it is useful to examine sentencing practices in other states.

Accordingly, the goal of this chapter is to advance scholarship on sex offender sentencing by providing one of the first detailed, systematic accounts of sex offender sentencing practices in

Florida. Information regarding Florida’s approach to sentencing sex offenders is not readily available. This chapter fills that gap by identifying patterns of different sentencing approaches for sex offenders, how those trends have changed over time, and how sentencing decisions are patterned demographically. In doing so, these analyses set the stage for later analyses that examine the effect of individual and contextual characteristics on sentencing. However, before

40 one can determine how sentences are decided, it is useful to gain an understanding of what sex offender sentencing “looks” like.

This chapter will proceed in the following manner. First, the use of the state of Florida as a study site and expected findings will be discussed. Second, the data and methodology used in this chapter are presented. Third, analyses of the following sentencing outcomes will be conducted: 1) the proportion of sex offenders receiving prison, jail, probation, or community control sentences; 2) the average sanction length; and 3) the proportion of offenders receiving upward or downward departures. This chapter also examines how these outcomes are patterned by race and sex. In addition, this study explores how these outcomes have changed over time

(specifically, 1995 to 2010). These analyses not only illustrate patterns in approaches to sex offender punishment in Florida, but also highlight areas for future research. Fourth and finally, this chapter closes with a discussion of the results and implications for future research.

Current Study

Florida serves as a useful setting in which to examine the sentencing of sex offenders.

Florida’s approach to sentencing has undergone significant changes over the past thirty years. In addition, media attention to cases of sexual abuse (e.g., Jessica Lunsford) and sex offender policy

(e.g., homeless offenders, civil commitment, and absconded offenders) has placed Florida in the national spotlight. To date, the state’s official approach to punishing this particular group of offenders has not been well documented. To address this gap in the literature, this chapter examines sentencing trends for sex offenders following changes to the Florida sentencing guidelines. Specifically, this chapter is focused on sentencing outcomes (e.g., sanction type and length) and how that varies by offender race and gender.

Based on prior research (e.g., Greenfeld, 1997; Leon, 2011; Lucken and Bales, 2008), I expect several patterns to emerge. First, sex offender sentencing severity should increase over time. Specifically, a larger proportion of sex offenders should be sentenced to prison and sentence lengths should increase. Further, a greater proportion of sex offenders should be upwardly departed, receiving a harsher sentence than guidelines recommend.

Second, regarding race and sex offender sentencing, I expect there to be racial differences in sentencing outcomes. Specifically, I expect a greater proportion of black sex offenders to be sentenced to prison, receive upward departures, and receive longer prison terms.

Third, regarding gender and sex offender sentencing, I expect there to be substantial gender differences in sanctions, with female sex offenders receiving more lenient sentences compared to males. Specifically, male sex offenders will be more likely to be sentenced to prison, receive upward departures, and get longer sentences.

Methodology

Data.

Data for these analyses came from the Florida Department of Correction’s [DOC] sentencing guidelines data file. Compiled by the DOC and covering a 15-year period, this dataset contains information for sentencing events in the state and includes data on each offender’s prior record, current offense, and sentencing approach.

Analytic Strategy.

The analyses presented here aggregate sentencing events for sex offenders (n=36,133) and a random sample of non-sex offenders (n=173,830) across the state of Florida and examine trends in sentencing approaches over the study period (1995 to 2010). Cases were included if the primary offense (i.e., the most serious offense) at conviction is a sexual offense as defined by

Florida statute. This research is particularly interested in three main sentencing outcomes: sanction type, sentence length, and guideline departure. Sanction type refers to whether the offender was sentenced to prison, jail, probation, or community control (a form of intensive community supervision, such as house arrest). Sentence length refers to the term of punishment imposed on the offender. Following standard practice, prison sentences were capped at 600 months, and any sentences that exceeded 600 months were recoded as 600. Two demographic variables—race and gender—have been selected to document sentencing experiences across different subgroups.

Findings

Overview.

In the sections that follow, I display sentencing trends for sex offenders in Florida. I present trends in sentencing type (i.e., the proportion of sex offenders being sentenced to prison, jail, community control, and probation), sentencing severity (i.e., length of sanction) and sentencing departures (i.e., upward and downward) between 1995 and 2010. For each sentence type and departure, I also examine differences in race and gender.

Prison.

In the current study, a prison sanction means that an offender is sentenced to state prison for a period of at least a year and one day. As shown in Figure 3.1, the use of prison as a sentence for sexual offending has varied over time. In 1995, approximately 40 percent of sex offenders sentenced in Florida were given a prison sentence. Since then, the use of prison has increased.

To illustrate, in 2000, approximately 47 percent of sex offenders were sentenced to prison. In

2005, 60 percent of sex offenders received a prison sentence. By 2010, nearly 74 percent of convicted sex offenders were going to prison.

Non-sex offenders go to prison at lower rates than sex offenders. The use of prison for non-sex offenders has also increased since 1995, but that increase was less substantial. For example, in

1995, 17 percent of convicted non-sex offenders received a prison term whereas in 2010, 29 percent were sentenced to prison.

Figure 3.2 shows the average prison sentence length over the study period. During this time, average prison sentence lengths show a variable, but generally increasing, trend. In 1995, sex offenders who received a prison sanction were sentenced, on average, to 8 years in prison. By the following year, prison sentence length increased to approximately 15 years. In the late 1990s, sex offenders who went to prison were sentenced on average to between 13 and 14 years in prison, but by 2002, average prison sentence length dropped to 11 years. By 2010, average prison sentence length returned to earlier levels, with prison-bound sex offenders being sentenced to an average of 15 years of incarceration.

Prison sentences were also examined by race (Figure 3.3). As shown, prison sentences for white and black offenders followed aggregate trends in sentencing. In other words, both white and black sex offenders experienced the increased use of prison as the prefered sanction. Black sex offenders were sentenced to prison in slighly greater rates than Whites. For example, in

1995, 38 percent of white sex offenders received a prison sentence while 47 percent of convicted black sex offenders were sent to prison, but that disparity has narrowed in recent years. By 2010, approximately 75 percent of black sex offenders and 73 percent of white sex offenders were sentenced to prison.

Differences were also observed in the analysis of sanction type by offender sex (shown in

Figure 3.4). Over the 15-year study period, a larger proportion of male sex offenders were sentenced to prison compared to female sex offenders. For example, in 1995, 40 percent of male

Figure 3.1. Proportion of convicted sex offenders and non-sex offenders sentenced to prison.

Figure 3.2. Average prison sentence length (in years) for convicted sex offenders.

Figure 3.3. Proportion of convicted sex offenders sentenced to prison by race

45 sex offenders received a prison sentence while only 11 percent of female sex offenders were sent to prison. Fifteen years later, both male and female sex offenders were sentenced to prison at greater rates, though a greater proportion of males than females received that sanction (74 percent to 54 percent, respectively). In fact, in every year studied, a greater proportion of male sex offenders received prison sanctions compared to their female counterparts. However, it should be noted that in 2004, male and female sex offenders were sentenced to prison in similar rates. In that year, 58 percent of convicted male sex offenders and 54 percent of female offenders received a prison sanction.

Jail.

Offenders sentenced to jail are incarcerated in county facilities for a year or less. Figure 3.5 shows the trend in judges sentencing sex offenders to jail. As shown, jail is not a commonly used sanction for sex offenders. Throughout the study period, jail was used as a sentence in less than 6 percent of all sentencing events. At the start of the study period, jail accounted for approximately

2 percent of all sentences for convicted sex offenders. By 2002, that rate increased to 5 percent and by 2010, less than 4 percent of sex offenders were sentenced to jail. Jail was a more commonly-used sanction for non-sex offenders. Over the study period, approximately 20 to 25 percent of non-sex offenders received a jail sentence.

Length of jail incarcerations did not vary substantially either. As shown in Figure 3.6, sex offenders sentenced to jail were given, on average, between 200 and 250 days of incarceration.

Jail sentences for sex offenders varied little by race (Figure 3.7). Jail sentences accounted for less than 7 percent of sentences for black sex offenders and less than 6 percent of sentences administered to white sex offenders. Although a greater proportion of black sex offenders than whites were sentenced to jail, this difference is not substantial.

Figure 3.4. Proportion of convicted sex offenders sentenced to prison by sex.

Figure 3.5. Proportion of convicted sex offenders and non-sex offenders sentenced to jail.

Figure 3.6. Average jail sentence length (in days) for convicted sex offenders.

Figure 3.8 shows the trend in jail sentences by offender sex, and two distinct patterns emerge.

First, the use of jail as a punishment for male sex offenders is generally stable over the study period. Throughout that period, jail is used in less than 5 percent of sentencing events.

Female sex offenders, on the other hand, experience greater variability in jail sentences. For example, in 1997, approximately 5 percent of convicted female sex offenders were sentenced to jail. Three years later, 10 percent received a jail sentence. In 2008, 20 percent of convicted female sex offenders were sent to jail.

Probation.

Sex offenders sentenced to probation are examined in Figure 3.9. As shown, the use of probation decreased in occurrence over the study period. In 1995, judges sentenced sex offenders to probation almost as often as prison (37 percent and 40.1 percent, respectively). In the years that followed, judges were less likely to select probation as the primary punishment. By 2010, only 16 percent of convicted sex offenders were sentenced to probation.

Probation is used more often with non-sex offenders. For example, in 1995, approximately

52 percent of non-sex offenders received probation (compared to 37 percent of sex offenders).

Much like with sex offenders, probation has become less common for non-sex offenders over the study period. By 2010, 43 percent of non-sex offenders received prison.

Although sex offenders being sentenced to probation became less common during the study period, when selected, terms of probation increased in length (shown in Figure 3.10). In 1995, sex offenders sentenced to probation received terms of approximately 73 months. Average probation terms lasted between 70 and 74 months through the end of the 1990s. By the mid-

2000s, however, sex offenders were sentenced to longer probation terms—approximately 86 months—and this trend continued to increase to over 107 months as the decade ended.

Figure 3.7. Proportion of convicted sex offenders sentenced to jail by race.

Figure 3.8. Proportion of convicted sex offenders sentenced to jail by sex.

Figure 3.9. Proportion of convicted sex offenders and non-sex offenders sentenced to probation.

Figure 3.10. Average probation sentence length (in months) for convicted sex offenders.

Figure 3.11. Proportion of convicted sex offenders sentenced to probation by race.

Figure 3.12 Proportion of convicted sex offenders sentenced to probation by sex.

Trends in probation sentences by race (Figure 3.11) and sex (Figure 3.12) were also examined. Both white and black offenders experienced a downward trend in the use of probation as the primary sentence. In 1995, nearly two-thirds of white and black sex offenders were given probation as punishment. By 2010, less than a fifth of convicted sex offenders received that sanction.

Throughout the study period, white sex offenders were sentenced to probation in slightly greater rates than black sex offenders, although the disparity here is not particularly substantial.

The racial disparity in probation sentences was greatest in 1996 when 36 percent of white sex offenders received probation while 30 percent of black sex offenders received the same punishment. However, in 1999, white and black sex offenders received a probation sanction at an equal rate (30 percent).

As shown in Figure 3.12, both male and female sex offenders received probation in reduced rates as the study period progressed. By 2010, less than a quarter of male and female sex offenders were given probation as a primary sentence. Generally, female sex offenders were sentenced to probation at greater rates than their male counterparts (although rates were similar in 2000 and 2004).

Community Control.

Offenders sentenced to community control serve their punishments in the community, like probation, but are under greater monitoring and supervision. For example, offenders sentenced under a community control framework may be placed in residential housing or under electronic monitoring, whereas offenders sentenced to probation would have less restrictive management terms.

As shown in Figure 3.13, the use of community control as a primary punishment for sex offenders decreased over time. In 1995, approximately 20 percent of convicted sex offenders were sentenced to community control. In the 15 years that followed, judges were choosing this sanction less regularly, and by 2010, community control accounted for approximately 5 percent of sex offender sentences. While the use of community control became less common, the period of intense supervision selected was more stable (Figure 3.14). Sex offenders sentenced to community control, on average, were given a term of between 19 and 22 months.

At the beginning of the study period, community control was utilized less often for non-sex offenders. For example, in 1995, only 11 percent of non-sex offenders were sentenced to community control (compared to 20 percent of sex offenders). Rates remained relatively stable until 2000, when the use of community control began to decrease. By 2007, sex offenders and non-sex offenders were given community control in similar rates.

Trends in racial differences in community control sentences (Figure 3.15) were similar to those found in probation. For both white and black sex offenders, community control sanctions became less common over the 15-year study period. Although nearly 22 percent of white sex offenders and 16 percent of black sex offenders received this sanction in 1995, less than 5 percent received community control in 2010. In general, white offenders were given community control sanctions at greater rates than black offenders, but these racial differences were not very substantial.

Similar to trends in probation, female sex offenders received community control sentences at greater rates compared to male sex offenders (Figure 3.16). For example, the highest proportion of female sex offenders sentenced to community control was approximately 38 percent, compared to 20 percent of male sex offenders. Both male and female sex offenders were less

Figure 3.13. Proportion of convicted sex offenders and non-sex offenders sentenced to community control.

Figure 3.14. Average community control sentence length (in months) for convicted sex offenders.

Figure 3.15. Proportion of convicted sex offenders sentenced to community control by race.

53 likely to receive a community control sentence over time, and by 2010, less than 10 percent of sex offenders were given this particular punishment.

Sentencing Departures.

Since the original sentencing guidelines system was enacted in 1983, judicial decision- making has been guided by statutorily-determined sentences based on the offender’s sentencing

“score.” Currently, if the offender scores a 44 or above, the offender is said to “score to prison” and a prison term is recommended. If the offender scores below 44, a non-prison term is suggested. Judges, however, have the power to administer punishments either above or below the recommended levels. An upward departure is when an offender does not score to prison, but is sentenced to prison. A downward departure is when an offender scores to prison, but is given a non-prison sanction instead. In general, Florida judges follow guideline recommendations for sentencing sex offenders. Specifically, 62 percent of sentences fall within the suggested levels.

However, in 38 percent of sentences, judges go outside those recommendations, but this has varied over time.

For example, the use of upward sentencing departures—where judges go above the recommended sentence—in sex offender sentencing has increased since sentencing guidelines were first enacted (Figure 3.17). From 1995 to 2003, for example, judges awarded harsher sentences in approximately 15 to 18 percent of sex offender sentences. By 2010, judges were using upward departures in almost a quarter of all sex offender sentences.

In contrast, upward departures for non-sex offenders are less common. In 1995, approximately 7 percent of non-sex offenders who did not score to prison were upwardly departed, receiving a prison sanction. Compared to approximately a fourth of sex offenders being

Figure 3.16. Proportion of convicted sex offenders sentenced to community control by sex.

Figure 3.17. Proportion of convicted sex offenders and non-sex offenders receiving an upward departure.

Figure 3.18. Proportion of convicted sex offenders receiving an upward departure by race

55 upwardly departed in 2010, less than 8 percent of non-sex offenders were given an upward departure.

Both white and black sex offenders saw an increased use of upward departures over the study period (Figure 3.18). On average, a greater proportion of whites received upward departures, and this disparity was fairly consistent over time.

Figure 3.19. Proportion of convicted sex offenders receiving an upward departure by sex.

The trend in sex differences in upward departures is shown in Figure 3.19. Also shown, a greater proportion of male sex offenders were given an upward departure compared to their female counterparts, except in 2008, when nearly 30 percent of female sex offenders were given a harsher sentence. However, upward departures for female sex offenders also demonstrated greater variability, with a range of 2 to 29 percent of sentences being above the recommended sentence.

Finally, downward departures—where guidelines suggest a prison sentence but judges choose a non-prison sanction—are examined below. Several patterns emerge. First, as shown in

Figure 3.20. Proportion of convicted sex offenders and non-sex offenders receiving a downward departure.

Figure 3.20, the use of downward departures for sex offenders increased in the years immediately following the enacting of sentencing guideline legislation. At most, approximately

27 percent of sentences for sex offenders were below the recommended level. However, in 2001, the direction of this trend changed and within 9 years, less than 15 percent of sentences for sex offenders were below the guideline recommendation.

In comparison, downward departures were less common for non-sex offenders. Whereas the trend in downward departure use for sex offenders varied substantially over time, rates of downward departures for non-sex offenders ranged between 7 and 11 percent. Notably, the use of downward departures for sex offenders and non-sex offenders is most similar in the most recent year of data available.

Patterns in racial and gender differences in downward departures mirror those found with upward departures. As shown in Figure 3.21, larger proportions of white and black sex offenders received a downward departure in the late 1990s, but by the early 2000s, that trend reversed, and downward departures became less common.

Figure 3.21. Proportion of convicted sex offenders receiving a downward departure by race.

Figure 3.22. Proportion of convicted sex offenders receiving a downward departure by sex.

Over the 15-year period, white sex offenders generally received downward departures in slightly lower rates than black sex offenders. Compared to female sex offenders, male offenders were on average less likely to be given a downward departure (Figure 3.22).

Discussion and Conclusion

Summary.

The purpose of this chapter is to contribute to the scholarship on sex offender policy by providing a descriptive account of sex offender sentencing in Florida. Given the increased

58 attention to issues in sex offender management and reentry in recent years, the paucity of research aimed at understanding sex offender punishment is notable.

Some general conclusions from the analyses presented here can be made. First, the severity of sex offender punishment has increased over the past 15 years. Similar to findings from

California (Leon, 2011) and national estimates (Greenfeld, 1997), sex offenders in Florida are now being sentenced to prison more often than they once were. In-community sanctions, like probation and community control, are utilized less often, but when an offender is given probation, they are now supervised for longer periods of time. Judges also appear to be less likely to extend leniency to these offenders. In the past decade, judges are more frequently going above the recommended sentence, giving offenders prison terms when they were eligible for a non-prison sanction.

Second, male sex offenders are sentenced more harshly than female sex offenders. Although the proportion of female sex offenders was small, the exploratory research presented here suggests that females are less likely to go to prison, more likely to serve sentences in the community, and are more commonly the recipients of judicial leniency in the form of downward departures.

Third, a clear and consistent relationship between race and sex offender sentencing is not demonstrated in the analyses presented here. In some cases, it appears that black sex offenders receive prison sentences in greater rates than whites. On the other hand, when examining sentencing departures, white sex offenders are downwardly departed in lower rates (and upwardly departed at greater rates) compared to their black counterparts. Because the results presented here are from preliminary bivariate analyses, conclusions about causal relationships

59 cannot be made. Multivariate analyses presented in subsequent chapters will address this initial finding.

Fourth, judges appear to respond to policy changes in sentencing, both positively and negatively. This is especially apparent in sentencing departures. Immediately after changes to sentencing guidelines legislation, judges began using downward departures at greater rates. This could be due to a negative reaction to the restriction of judicial discretion. Or, judges could perceive the recommended sentence as too harsh and are using departures to make adjustments to the legislation. Whether judges were reacting to limited power or perceived fairness of sanctions, this rejection of the sentencing guidelines was soon over. After policy changes in 1998 allowed for greater use of upward departure, judges departing to a harsher sentence became more common.

Fifth and finally, sentencing approaches for sex offenders differ from sentencing approaches for non-sex offenders. Compared to non-sex offenders, sex offenders go to prison at higher rates, and are less likely to be given a jail, probation, or community control sanction. Sentencing departures are also utilized more frequently with sex offenders than with non-sex offenders.

Notably, utilization of departures includes both upward and downward departures. It is not just that judges think sentences are too lenient and adjust the punishment upwardly. Judges appear to give less severe sentences to convicted sex offenders, as well.

Implications.

Taken together, the findings presented in this chapter suggest that sex offender sentencing has become harsher over time, offenders are sentenced to longer periods of incarceration and supervision and community sanctions are not favored for sex offenders.

These findings can direct future research on the topic of sex offender sentencing. First, the relationship between sentencing outcomes and sex offender characteristics should be explored.

Do racial differences in outcomes reflect racial bias, perceived threat, or differences in offending behavior? What is the influence of other demographic variables, such as age, marital or parental status? A mixed methods design, where quantitative examinations of trends are matched with qualitative interviews, would be particularly useful in illuminating the sentencing process.

Specifically, how do judges perceive sex offenders and the utility of punishment? Judges may be aware of the public calling for harsher punishments for sex offenders. Do judges take that into account? These possibilities should be examined to better understand trends in punishment.

Second, future research should examine female sex offenders, and the ways they are managed by the criminal justice system, in greater detail. Although male sex offenders are more common than female sex offenders, almost nothing is known about how these females differ from (or are similar to) male sexual abusers. Further, given that scholars have cited the role of public concern over sex offenders as a guiding force in the development of sex offender policy, researchers should examine how the public perceives female sex offenders and its implications for policy.

Third, but not least, scholars should investigate the sustainability of current punishment practices. As the system turns toward more punitive approaches to sex offender punishment (i.e., incarceration), what is the impact for state correctional budgets or offenders’ experiences with reentry? Are states equipped to handle a growing incarcerated sex offender population? Further, researchers should examine whether different punishment approaches have implications for sex offender recidivism? Though exploratory in nature, the analyses presented here represent a first step in understanding sex offender punishment in Florida.

CHAPTER 4

THE ROLE OF RACE AND ETHNICITY IN SENTENCING SEX OFFENDERS

Introduction

Public concern about the punishment of sex offenders has gained prominence in recent years.

Policy-makers have cited the importance of more punitive sex offender policies in protecting the safety of the community (Meloy, et al., 2013). Scholarly attention on sex offender issues has also increased over the past two decades but much of this focus has been on the reentry experience

(e.g., Anderson and Sample, 2008; Letourneau, et al., 2009; Levenson and Cotter, 2005b;

Levenson, et al., 2010; Tewksbury, 2005). Despite a renewed public interest in the punishment of sex offenders, few criminological studies have focused on official punishments for this particular group of offenders. As a result, much remains unknown about sentencing approaches for sex offenders. This gap is notable, given the substantial contribution of the general sentencing literature to understanding issues in crime and justice research. Thus, an important avenue of research emerges: how can approaches taken in sentencing scholarship inform our understanding of sex offender punishment?

In the broader body of sentencing research, scholars have placed a substantial emphasis on exploring the role of extra-legal factors in guiding judicial decision-making (Alozie and

Johnston, 2000; Bontrager, Bales, and Chiricos, 2005; Brennan, 2006; Crow and Johnson, 2008).

Of primary interest is the effect of defendant race or ethnicity on sentencing severity. Although the quality of these studies have varied over time (Zatz, 1987), the general finding is that race and ethnicity typically have significant effects on sentencing outcomes. Specifically, black and

Hispanic offenders are sentenced more harshly than their white counterparts (Chiricos and

Crawford, 1995; Mitchell, 2005; Spohn, 2000; Zatz, 1987). However, the effects sizes of these

62 extra-legal variables vary. Research generally finds that legally relevant factors, such as offense seriousness and prior record, are the strongest predictors of incarceration and sentence length decisions. Still, studies controlling for these variables continue to find evidence for a race or ethnicity effect on judicial decision-making.

Some scholars have argued that studies examining race and sentencing should move beyond the question of whether race matters and begin to explore the context of when race matters

(Walker, Spohn, and DeLone, 2011). However, the extant research has not thoroughly examined whether these considerations are being made similarly across different types of offenders. It is possible that different types of offenders elicit varying reactions from judges and court actors and are thus sentenced in different ways. Therefore, it is important for researchers to examine punishment practices for different offender subgroups.

To that end, the purpose of this chapter is to contribute to sentencing scholarship by examining judicial decision-making with one such offender subgroup—sex offenders. Using sentencing data from Florida covering a ten-year period (2000-2009), this chapter will examine the role of race and ethnicity in the sentencing of sex offenders. Here the focus is on both sentence type (incarceration versus community sanctions) and sentence length. The remainder of the chapter will proceed as follows: first, a review of the general sentencing literature and the effect of race on sentencing is presented. Second, a discussion of prior work in sex offender sentencing is offered. Third, the theoretical framework used in this chapter is described. Fourth, the current study is presented with a discussion of the contribution, methodology, and findings.

Fifth, and finally, the chapter concludes with a discussion of results and implications for future theory and research.

Background

General Sentencing Literature.

Though there is a considerable amount of research examining racial disparity in punishment approaches, scholars have disagreed about whether racial discrimination is a consistent feature of

U.S. sentencing. On one end of the spectrum, scholars (e.g., Wilbanks, 1987) argue that discrimination in the criminal justice system is a myth. Under this framework, any differences in sentencing are due to differences in offender behavior. On the other end, some scholars have argued that the criminal justice system is marked by widespread and systematic discrimination

(e.g., Mann, 1993). In the middle are scholars (e.g., Walker, et al., 2007) who have maintained that the role of race in the criminal justice system is contextual—race may play a role in some stages of the criminal justice system, but in other stages, it may not.

The number of sentencing studies is notable, but the quality of these studies has varied, as have the conclusions drawn from that body of work. Zatz (1987) organized the race and sentencing research into four waves and examined differences in methodological approaches and in findings. In wave one (1930s to mid-1960s), sentencing studies found a clear and consistent bias against minority defendants. Black defendants were more likely to go to prison and serve longer periods of incarceration than white offenders. However, Zatz (1987) maintained that these studies were limited by simplistic models and a lack of proper controls.

In wave two (late 1960s to 1970s), studies generally did not find race effects. Scholars at this time viewed racial differences in sentencing as a function of offender behavior differences, not systematic discrimination. Once again, methodological limitations tempered conclusions drawn from this literature (Zatz, 1987). Scholars in wave three (1970s to 1980s) used the same data as in wave two, but advances in statistical modeling (most notably, longitudinal modeling) led

64 researchers to conclude that contextual or extralegal variables were important in understanding the role of race in sentencing. Victim race, for example, was found to be an important predictor of sentencing severity and there was evidence of both overt and subtle discrimination in judicial processing.

In the fourth and last wave (1980s to present), sentencing studies have employed more complex modeling approaches. In general, studies from this era have found evidence of race effects: net of controls, minority offenders are more likely to receive incarceration and when incarcerated, they are more likely to serve longer periods of time than white offenders. For example, Steffensmeier and Demuth (2001) examined sentencing data from the 1990s and found that both black and Hispanic defendants were more likely to receive a sentence of incarceration than Whites. Ulmer et al. (2007) analyzed sentencing data from Pennsylvania and found that prosecutors were more likely to impose mandatory minimum penalties on black and Hispanic offenders. Doerner and Demuth (2010) examined federal sentencing and found race effects, but these were moderated by offender sex. Among male offenders, Blacks and Hispanics were more likely to be sentenced to prison. In contrast, no statistically significant racial differences for female defendants were observed.

Sex Offender Sentencing.

Although much of the current literature on sex offenders has focused on what happens to sex offenders once they are released back into the community (e.g., Letourneau, et al., 2009;

Levenson, 2009; Levenson and Cotter, 2005a; 2005b; Tewksbury, 2005), a small body of research has examined the state of official, punitive responses to sex offenders. Scholars have noted that the prison population has undergone a transformation in the past three decades, and much of this is due to increasingly punitive responses to sexual offenders. In Greenfeld’s (1997)

65 study, he found that the sex offender prison population was the fastest growing group of incarcerated offenders in the nation. Other scholars have also noted an increasing trend towards incarceration (Cohen and Jeglic, 2007) and longer prison terms (Pew Center on the States, 2012).

For example, data from Florida show that between 1993 and 2002, the prison population grew by

49 percent; the sex offender prison population, on the other hand, increased by 74 percent during the same period (Lucken and Bales, 2008). Other research has suggested that around 10 percent of the U.S. prison population is currently incarcerated for a sexual offense (Harrison and Beck,

2006). Much of this push towards incarceration comes from states enacting mandatory sentencing laws for sex offenders (Sorenson and Stemen, 2002) and the public’s desire for harsher sentences for this particular group of offenders (Cohen and Jeglic, 2007).

Scholars have also examined the effects of sex offender policy on judicial decision-making.

Because of enhanced punishments, lengthy periods of registration, and the stigma surrounding the sex offense label, scholars have argued that this get-tough approach to sex offender management may negatively impact court processes, like obtaining guilty pleas (Logan, 2000).

Using data from South Carolina, Letourneau et al. (2010) found that sex offender registration and community notification (SORN) laws have important effects on court outcomes. Specifically,

Letourneau and colleagues found that after the passage of SORN policies in South Carolina, judges and prosecutors were more likely to allow defendants to plea to lesser (e.g., non-sex) charges. Furthermore, although guilty dispositions increased immediately following SORN, the trend reversed and the proportion cases ending in guilty dispositions declined. Letourneau and colleagues (2009) found similar effects of registration and notification on juvenile dispositions.

Specifically, following the implementation of lifetime registration, prosecutors were less likely to prosecute felony sex offenses involving juvenile defendants. They also found that the

66 probability of guilty dispositions increased; however, the authors argued that this was due to youths accepting plea bargains at higher rates.

Sex Offender Sentencing and Race.

What does the research tell us about the sentencing of sex offenders with regard to race and ethnicity? There is a well-documented history of racial discrimination in sentencing offenders in cases of sexual assault. Early in our nation’s history, black defendants who assaulted white female victims were sanctioned severely while white offenders who victimized black victims often escaped punishment (Brakke, 2001; Rome, 2004; Russell, 1998; Spohn and Spears, 1996).

For example, the criminal punishment code in Virginia during the 1880s shows different responses to cases of sexual assault (Russell, 1998). The prescribed sentence for the rape of a white victim by a black (slave) offender was death or castration. In contrast, the rape of a black victim was not considered a crime and thus, no sentence was offered by the punishment code.

Severe sentences for black sex offenders continued in the 20th century as well. According to

Wolfgang and Riedel (1973), from the 1930s to the 1970s, nearly 90 percent of offenders executed for rape were black.

Although the historical evidence for racial discrimination in the sentencing of sex offenders is robust, recent research examining this topic has been more limited (Kingsnorth, et al., 1998).

Only a handful of studies have investigated sentencing decisions for sex offenders specifically and their results are mixed. Lafree (1980) examined sex assault case processing data and found that black males who sexually assaulted white females were more likely to be sentenced to prison and serve longer periods of time. Spohn (1994) examined sex offender sentencing and found that African American sex offenders were more likely than Whites to be sentenced to prison, especially if they sexually assaulted a white victim. Similarly, Spohn and Spears (1996)

67 examined cases of sexual assault sentencing in Detroit and found that black defendants who victimized Whites received the longest sentence lengths (compared to any other racial dynamic).

Other scholars have not found evidence of race-based sentencing for sex offenders.

Kingsnorth, et al. (1998) examined sentencing decisions for 365 sex offenders in Sacramento

County and found that race and ethnicity were not related to the decision to incarcerate or the length of the prison term. However, in focusing only on sexual battery (the most serious form of sexual assault), the authors may have excluded cases where discretion (and disparity) may be more likely to be found. Warren, Chiricos, and Bales (2011) examined incarceration decisions for offenders in Florida. They also found no significant race or ethnicity effects on the decision to sentence sex offenders to jail or prison. Much like Kingsnorth et al.’s (1998) analysis, restricting the sample to those convicted of sexual battery may have excluded lower-level assaults, cases where judicial leniency may be more likely.

Other studies have found that race matters in sentencing, but that it operates contrary to expectation. In one study, Maxwell, Robinson, and Post (2003) found that Black and Hispanic defendants were actually treated more leniently than their White counterparts; specifically, minority sex offenders were less likely to be found guilty and when incarcerated, they received shorter prison terms.

A review of this literature highlights two key limitations. First, most studies only include cases of sexual battery (i.e., rape). However, much of the increase in sex offender imprisonment is being driven by non-rape sexual assault (Leon, 2011). Excluding these cases from analyses may alter the identified relationships between extralegal variables and sentencing decisions.

Second, as is common with sentencing studies using the general offender population, most

68 studies have primarily focused on black-white differences between sex offenders. The extent to which ethnicity plays a role in sentencing sexual offenders has not been sufficiently studied.

Theoretical Framework

Drawing on the general race and sentencing literature, there are several reasons why we would expect that minority sex offenders may be treated more harshly than white sex offenders.

Albonetti (1991) argued that judges attempt to make rational decisions, but these decisions are often restricted by incomplete information about the offender. To fill in these gaps, judges rely on perceptual short-hands that Albonetti argued are tied to race. Judges use these short-hands to make predictions about reoffending. Similarly, Steffensmeier et al. (1998) argued that judges rely on focal concerns about offender blameworthiness, dangerousness, and practical constraints and consequences and that race and ethnicity are connected to these considerations. This perspective suggests that black defendants, especially black males—tapping into what Russell

(1989) calls the myth of the criminalblackman— are more likely to be perceived as dangerous and less accountable for their crimes and therefore more deserving of harsher sanctions.

Steffensmeier and Demuth (2000; 2001) made a similar argument about the punishment of

Hispanic offenders, suggesting that cultural stereotypes linked to criminal activity place Latino defendants at a disadvantage during the sentencing stage. Collectively, these different perspectives expect an effect of race or ethnicity on sentencing.

Alternatively, race and ethnicity may exert no effect on sentence outcome or severity.

Scholars have noted that the influence of race on sentencing outcomes may be conditioned by crime type and seriousness (Spohn, 2000). Specifically, racial and ethnic disparities were more likely to be found in less serious cases because judges have more discretion when processing lower level offenses. It may be that sex offenders, as a type of violent offender, are sentenced the

69 same across demographic characteristics. In other words, judges may view sexual offenders and the crimes they commit as especially egregious, without regard to the social-demographic makeup of the offender. The assumption here is that an offender’s status as a sexual offender trumps their racial status. An insignificant race effect could also provide evidence that the sentencing guidelines may have been helpful in reducing racial disparity, at least as it pertains to sexual offenders.

Current Study

Few scholars have studied the sentencing of sex offenders specifically under a minority threat perspective. However, official responses to sex offenders may be a particularly useful setting in which to study threat and social control. Scholars have noted that an underlying fear that black males pose a substantial threat to Whites—especially white females—drives formal responses to crime (Brown, 1989). Yet, scholars have not fully examined sex offender sentencing to determine the extent to which a racial or ethnic threat perspective explains the increasingly punitive responses to sex offenders.

This study addresses the limitations of prior sentencing researcher in three important ways.

First, the study is focused specifically on sex offenders. As demonstrated earlier, despite a history of systematic discrimination in the sentencing of sexual abusers, recent research examining the importance of race is scant. This study will contribute to this body of research by focusing on this neglected sub-group of offenders. Second, this research includes cases of varying severity. Some scholars have argued that racial disparity is not likely found in the most extreme (i.e., violent) cases, such as rape. Yet most of the research has limited the focus on sexual battery only. This study, on the other hand, includes cases of sexual abuse that range in

70 severity. Third, the analyses presented here examine both race and ethnicity while much of the literature is focused on black-white differences in sentencing

Methodology

Data.

The data used in this study come from the Florida Department of Corrections (DOC) sentencing guideline dataset (covering 2000 to 2009). This dataset provides a unique opportunity to examine both legal and extralegal factors influencing judicial decision-making. When offenders are sentenced, court officials complete a sentencing guideline scoresheet that documents case specifics and offender characteristics. If the total number of points earned is greater than 44, the offender is eligible for a prison sentence. This is referred to as “score to prison.” Offenders who score to prison are eligible for a period of incarceration greater than a year and a day in length. Offenders’ total score is also used to determine the length of the prison sentence, if eligible.

Dependent Variables.

There are two dependent variables of interest in this study. First is sentence type. Here, the focus is on whether the offender was incarcerated (i.e., prison or jail) or was sentenced to a community sanction (i.e., community control or probation). Scholars disagree about the best way to conceptualize and model sentencing outcomes. Most sentencing studies have focused on dichotomous sentencing outcomes, such as prison versus non-prison, or the “in-out” decision, whereby offenders are grouped into two categories: incarceration (jail or prison) and non- incarceration (Johnson, 2005; 2006; Steffensmeier and Demuth, 2006). Other scholars have questioned the utility of this approach, arguing that prison and jail have important differences and should be modeled separately (Holleran and Spohn, 2004, Wang and Mears, 2009; Wang, et

71 al, 2013). While both arguments are valid, this current study uses the dichotomous, in-out decision for conceptual reasons. Judges must make a decision as to whether to detain an offender or allow them to serve their punishment in the community. Though prison and jail have differences, they essentially represent the removal of the offender from the community, which in this study is viewed as the harsher punishment approach.

The second dependent variable of interest is sentence length, which refers to the amount of time the judge sentences the offender to a term of incarceration, measured in months.

Independent Variables.

This study examines the effect of extralegal factors on the decision to incarcerate. Extralegal factors refer to characteristics of the offender or offense that are not supposed to be considered by judges. Race refers to the offender’s race as recorded by the DOC and is captured in three dummy variables: Black, White, and Hispanic. Black and White race codes come from the DOC sentencing guidelines dataset. Hispanic ethnicity comes from the DOC offender database. Age is a continuous measure of the offender’s age at the time of sentencing. In the models, age is also squared to account for any nonlinear effect of age. Trial is a measure of whether the offender pled guilty (0) or was found guilty after a trial (1).

Sentencing studies are also interested in the effects of legal factors that influence judges’ decision-making process. Legal variables are those factors that, by statute, are appropriate to use when deciding an offender’s sentence. In this study, two legally-relevant factors are included in the analysis. Offense seriousness is a continuous measure of the severity of the offense for which the offender is being sentenced. Prior record is a measure of the points earned for the offenders’ criminal history. Higher scores on these legally relevant factors should be related to punishment

72 decisions, where more serious offenders (those with more sentencing points) should receive harsher punishments.

This study also includes a control for county of sentencing. It is possible that variation in jurisdictions’ approach to sentencing might exist. To control for county variation in sentencing, as well as the dependence of observations in counties, this study uses a fixed-effects approach

(see Johnson, 2010), which adds a series of dummy variables for county of sentence to the regression model. Finally, per Engen and Gainey’s (2000) recommendation, a measure of the presumptive sentence—a score to prison dummy— is included in the model to correctly specify the effects of legal and extra-legal variables on sentencing outcomes.

Analytic Strategy

This research examines the effect of race and ethnicity on sentencing outcomes. The analyses in this study were conducted in the following manner. First, descriptive statistics for the sample were generated. Second, a series of logistic regression models predicting incarceration was estimated. Third, predicted probabilities of incarceration were computed and graphed. Fourth and finally, negative binomial regression models were run to predict sentence length. Initial data analysis showed evidence of overdispersion in sentence length (in months), suggesting that

Poisson regression was inappropriate. Further, the Pearson goodness-of-fit test results indicate that the distribution of incarceration lengths significantly differs for a Poisson distribution

(P<.000). Therefore, negative binomial regression is more appropriate for this analysis.

Findings

Table 4.1 presents descriptive characteristics from the sample of convicted sex felons in

Florida. Fifty-six percent of the sample was non-Hispanic White, 28 percent of the sample was non-Hispanic Black, and 16 percent of the sample was of Hispanic origin. The mean age of the

73 sample was 35 and over half of the sample was between the ages of 30 and 59. Turning to sentencing outcomes, the results show that 72 percent of convicted sex offenders were sentenced to a period of incarceration. The average length of incarceration was 76 months.

Table 4.1. Descriptive statistics, convicted sex offenders in Florida, 2000-2009 Mean Std. Dev. Min Max Dependent Variable: Sentence Type Incarceration .72 .45 0 1 Dependent Variable: Sentence Length Prison length (in months) 76.21 124.56 0 600 Independent Variables Black .28 .45 0 1 Hispanic .16 .37 0 1 White .56 .50 0 1 Age 35.29 13.01 18 88 Offense seriousness 63.54 23.27 0 116 Prior record 5.71 15.55 0 386 Score to prison .90 .30 0 1 Trial .06 .24 0 1 N=15,554

Multivariate logistic regression results are displayed in Table 4.2. First we examine the effects of offender characteristics on odds of incarceration. In model 1, the odds of incarceration were predicted using only race and ethnicity. Compared to white sex felons’ odds of incarceration, black sex offenders’ odds were 57 percent higher. Hispanic offenders, on the other hand, were not significantly different than whites.

In model 2, a continuous measure of age is added to the model, but the effect is not significant. Model 3 adds a squared age term to account for potential nonlinear effects of age.

Evidence of a nonlinear effect of age was found. In this model, younger offenders’ odds of incarceration were higher (OR=1.11) and older offenders’ odds were slightly lower (OR=.99).

The effect of race remains significant and in the same direction as the previous models— compared to white sex offenders, black sex offenders have higher odds of incarceration.

Model 4 examines the influence of offender race and ethnicity on odds of incarceration while taking into account the effect of offense seriousness and prior record. Net of these legally relevant characteristics, the effect of race and ethnicity maintains. Odds of incarceration for black sex offenders are 20 percent higher than whites’ odds of incarceration. Once again,

Hispanic offenders were not significantly different than Whites. Model 5 displays results for the full regression model with all controls (score to prison, trial, and county). Here, black sex offenders’ odds of incarceration were higher (OR=1.42) than Whites’ odds. Hispanic sex offenders’ odds of incarceration are not significantly different than white sex felons.

Additionally, offenders who score to prison have a higher odds of incarceration (OR=4.35) compared to offenders who did not. Further, the odds of incarceration for sex offenders who go to trial instead of taking a plea deal were over five times greater.

Model 6 examines potential interactions between age and race. In this analysis, only one race-age interaction emerged as significant. Older black males were slightly less likely to be incarcerated (OR=.99). To better examine the relationship between race, age, and incarceration, predicted probabilities were computed. Using predicted probabilities to compare group differences in outcomes is ideal for two reasons. As Long (2009, p.2) noted, the use of predicted probabilities is “…unaffected by group differences in residual variation and does not require assumptions about the equality of regression coefficients for some variables.”

Figure 4.1 shows racial differences in the probability of incarceration at different ages. From

18 to 40 years old, black sex offenders have a higher probability of incarceration than white or

Hispanic sex felons. There is no significant difference between white and Hispanic sex

Table 4.2. Logistic Regression Predicting Incarceration for Convicted Sex Offenders Model 1 Model 2 Model 3 Model 4 Model 5 Model 6 OR S.E. OR S.E. OR S.E. OR S.E. OR S.E. OR S.E. Black 1.57*** .07 1.57*** .07 1.59*** .06 1.50*** .07 1.42*** .07 .90 .33 Hispanic .99 .05 .99 .05 1.00 .05 .92 .05 .92 .05 1.04 .41 Age ------1.00 .00 1.11*** .01 1.12*** .01 1.12*** .01 1.12*** .01 Age2 ------.99*** .00 1.00*** .00 1.00*** .00 1.00*** .00 Offense seriousness ------1.03*** .00 1.01*** .00 1.01*** .00 Prior record ------1.00*** .00 1.00*** .00 1.00*** .00 Score to prison ------4.35*** .32 4.35*** .32 Trial ------5.25*** .72 5.25*** .72 Black*Age ------1.03 .02 Black*Age2 ------1.00* .00 Hispanic*Age ------.99 .02 Hispanic*Age2 ------1.00 .00 Constant 2.43 .06 2.50 .14 .43 .06 .081 .012 .01 .01 .01 .01 Pseudo R2 .01 .01 .02 .073 .15 .15 Notes: *p<.05, **p<.01, ***p<.001 Odds ratios for county controls are not displayed. N=15,554

Table 4.3. Negative binomial regression predicting sentence length for convicted sex offenders Model 1 Model 2 Model 3 Model 4 Model 5 b S.E. b S.E. b S.E. b S.E. b S.E. Black -.04 .02 .02 .02 .02 .02 -.01 .02 .00 .02 Hispanic -.02 .02 .02 .03 .03 .023 -.08*** .0 -.07** .02 Age ------.01*** .00 .06 .00 .06*** .00 .05*** .00 Age2 ------.00*** .00 -.00*** 0.00 -.00*** .00 Offense seriousness ------.02*** 0.00 .01*** .00 Prior record ------.00 0.00 .00*** .00 Score to prison ------.46*** .04 Trial ------.56*** .03 Constant 4.68 .01 4.24 .03 3.41 .07 2.31 .06 2.31 .27 Pseudo R2 .00 .02 .04 .03 .04 Notes: *p<.05, **p<.01, ***p<.001 Coefficients for county controls are not displayed. N=11,106

77 offenders. Notably, during this time the influence of age is the same across the groups: with each unit increase in age, the probability of incarceration increases for black, white, and Hispanic sex offenders.

However, at age 40, the effect of age changes. Although black sex offenders have a higher probability of incarceration than Whites or Hispanics, as each year passes, that probability decreases. On the other hand, the probability of incarceration for white and Hispanic sex offenders remains fairly stable, but begins a decreasing trend as age approaches 60. At 60 years of age, the effect of race on probability of incarceration “flips”—here, white and Hispanic sex offenders have a higher chance of being incarcerated than black sex offenders. Once again, there was virtually no difference between white and Hispanic sex offenders at this stage. Though the effect of older age is the same for all sex offenders (i.e., each increase in year results in a lower likelihood of incarceration), the effect of age for black sex offenders is more pronounced.

Figure 4.1. Predicted probability of incarceration for convicted sex offenders.

The final analysis examines whether legal and extralegal variables predict sentencing length

(Table 4.3). Turning to the complete analysis (model 5), several findings emerge. First, Hispanic offenders received shorter sentences than Whites (b=-.067). Second, age effects were also found.

Specifically, young sex offenders received longer prison sentences (b=.050) and older sex offenders received slightly shorter (b=-.001)). Third, and similar to the incarceration analysis above, we also find evidence of a trial penalty. Specifically, offenders who went to trial received longer terms of incarceration (b=.564) than those offenders who pled guilty.

Legal factors were significant predictors of sentence length. Specifically, offenders with more serious offenses (b=.014) and criminal records (b=.003) received longer sentences.

Additionally, those offenders who were eligible for prison also received longer periods of incarceration (b=.461).

Discussion and Conclusion

The purpose of this chapter was to contribute to punishment scholarship by examining sex offender sentencing. Across the models, two key patterns emerged. First, offender race was an important predictor in the decision to incarcerate. Across the models, we see a fairly consistent story. Black sex offenders are typically more likely to be sent to prison or jail than white sex offenders. In contrast, the effect of ethnicity was not significant across models. The effect of race on sentence length was less pronounced. Across the models, sentence lengths for black and white sex offenders did not differ significantly. Hispanics, however, did tend to receive shorter sentences than whites, net of controls.

The second pattern of findings to emerge from the analyses is the importance of offender age in sentencing. The models show a consistent and significant non-linear effect of age on odds of incarceration. Odds of incarceration differ for younger and older offenders. Consequently,

79 sentencing studies should continue to examine age beyond its linear form, as differential effects may exist. As shown above, important age-race distinctions were identified in this study. For example, age 40 is a critical turning point for convicted sex offenders. Up to that point, each unit increase in age is associated with a greater likelihood of being sentenced to prison. That is, among the 40-and-under group, the 40-year-olds are the most likely to be incarcerated.

Thereafter, the likelihood declines, and it is only by around age 70 that the likelihood of incarceration drops below that of the youngest convicted felons.

Several questions arise from the interactional analyses. First, why are 40-year-olds, and those who are close to this age, the most likely to be incarcerated? One possibility is that the stereotypical profile of a sex offender—the one most likely to appear in television shows like To

Catch a Predator or Law & Order: SVU, for example—is that of a predatory middle-aged male

(Adler, 2010). So, each year closer an offender is to this “target” age (whether one approaches it from the “left,” that is, the younger side of the age distribution, or the “right,” that is the older side of the age distribution), the more likely he is to be viewed as a serious (and typical) sex offender who must be incapacitated through incarceration.

Second, why, among convicted sex felons over the age of 40, is the seemingly incarceration- reducing effect of age greater among blacks? Put differently, according to the above interpretation, older sex offenders increasingly are farther away from the “target” age (40 years old) of the stereotypical sex offender. That is, they benefit from being viewed (according to this interpretation) as being less serious offenders. Notably, however, this beneficial effect is greater for blacks. What explains this effect? One possible example is that older (especially elderly) black sex offenders look less like the stereotypical sex offender. That is, they look less like the image of the middle-aged white male sex offender. It is important to note that Blacks still are

80 more likely to be incarcerated across almost all ranges, except for the 60-and-above group, which suggests that racial threat is not completely removed from perceptions of sex offender dangerousness.

Third, why are Hispanic sex offenders no different than white sex offenders in odds of incarceration? This question has not been thoroughly addressed in the sex offender and stereotype literatures. On the one hand, it may be that ethnicity is not acknowledged or considered by court actors when assessing cases of sexual assault. Another possible explanation is that the majority of sex offenders in this sample were assumed to be white. The original coding of the sentencing score sheet did not have an option for Hispanic race, and court actors for the most part categorized Hispanic defendants as white. Even so, if Hispanic offenders are considered to be “white” for court purposes, one would expect harsher penalties for this group, as they more closely resemble the focal threat group of sex offenders—middle-aged whites.

However, as the results indicate, young and middle-aged whites and Hispanics are treated more leniently than Black offenders.

What this discussion highlights is a case of competing stereotypes. Put differently, two potential explanations emerge that could offer insight into how race should affect sex offender sentencing. First, sentencing decisions, and perceptions of sex offender dangerousness, may be grounded in the image of the hypersexualized black male (Ferber, 2007). Historically, the myth of unrestrained black male sexuality was pervasive, as was the fear that black males were a danger to the virtue of white females. From this perspective, if the courts view black sex offenders in this way, then across all age groups, we should expect to see blacks being more likely to be sentenced to prison. It is not clear that there would be a more pronounced age effect, however. Rather, for all groups, being older, up to some point, would be associated with a

81 greater likelihood of being a more threatening sex offender. The prevailing view among the public and court actors may be that after a certain age, sex offenders—like most offenders—are aging out of crime and thus are less serious.

Second, it is possible that the stereotypical image of a sex offender is a middle-aged white sex offender who offends in “secret.” Here, the offender is a pedophile who could be anyone— neighbor, uncle, coach, priest. The case of Jerry Sandusky at Penn State University serves as a recent example of this phenomenon. In this case, the image of the dangerous sex offender is not that of a young, black stranger, but rather a trusted public figure. Using this framework, we would expect that age will have a more pronounced effect on the sentencing of white male sex offenders. That is, as whites approach the “focal” middle-age years, the likelihood of incarceration should increase more so than among black sex offenders. Here, the middle-aged stereotype is “sticky” for white males. That is, once offenders are age 40 or above, the courts tend to view them as broadly belonging to the stereotypical profile of the middle-aged sex offender. Viewed in this light, the courts essentially group white sex offenders who are in their

40s or older as more similar than not.

Because prior research on sex offender sentencing has not examined these competing stereotypes, the insight provided here remains speculative, but useful. First, the results of the current study only partially supports the first explanation—that the image of the sex offender is that of a hypersexualized black male. Though younger and middle aged black sex offenders are more likely to be incarcerated than whites, the oldest black offenders are not. It is possible that the public’s image of the hypersexualized black male stereotype arguably is one that was more commonly held in prior generations. Indeed, notwithstanding the Willie Horton coverage in the early 1990s during the presidential contest—which involved the release of a black man who then

82 raped and killed a white woman, a scenario that speaks directly to the stereotype—there since has been relatively little by way of accounts of this type of stereotypical male. Cases certainly exist—for example, the case of 17-year old Genarlow Wilson, a black teen who was sentenced to ten years in prison for engaging in oral sex with a 15 year-old white female classmate—however, coverage of these cases pale in comparison to much of the recent coverage of sex abuse scandals.

In recent decades, much of the focus arguably has been centered on accounts of white male sex offenders, such as Jerry Sandusky, Jesse Timmendequas, John Couey, and the Catholic clergy.

Further, the success of shows like To Catch a Predator is built around the notion that anyone can be a sex offender.

Consequently, it seems the results discussed here better support the second explanation.

Among whites, the effect of turning age 40 is “sticky”—that is, by age 40, each additional year does not appreciably reduce the likelihood of incarceration until around age 60. At that point, the probability of incarceration decreases somewhat more rapidly. By contrast, among blacks, the effect of age is more pronounced, which is what would be anticipated if the stereotypical profile of the middle-aged white male influences sentencing. This effect arguably is enduring—among the oldest convicted sex felons, whites are considerably more likely to be viewed as warranting a term of incarceration. Here, the interpretation is not, per se, that blacks are less likely to be sanctioned more severely. Rather, it is that whites, by dint of belonging more to the stereotypical sex offender profile, are sanctioned more severely.

This study offers suggestions for the development of the threat literature. Primarily, scholars should continue to examine whether racial or ethnic threat explanations operate similarly across offender types. It is possible that the role of race and ethnicity depends on the type of crime committed. Put differently, race and ethnicity may have differential effects on drug offenders

83 than on white collar criminals. To better examine racial threat arguments, one must consider both historical and contemporary social contexts. In this chapter, it is argued that changing notions of the threat that sex offenders place on society (and how sex offenders are viewed by the community) may impact how offenders are sentenced. Fear of crime, notions of threat, and public concerns about offenders are not static over time. For example, after September 11, 2001, fear of terrorism was a prominent concern of many Americans, maybe more so than at any other time in the nation’s history, often taking the place of other domestic concerns. Consequently, it would benefit scholars to take a dynamic, rather than static, view of racial and ethnic threat.

Additionally, scholars should develop threat theories to account for the differential effect of age.

The results of this study also identify several avenues for future research. First, scholars should examine racial typification of crime and its impact on public perceptions of sex offenders.

In this vein, scholars should continue to investigate the relationship between race, perceived threat, and sentencing of sex offenders. Second, scholars should examine the role of victim characteristics in the sentencing of sex offenders. Are white victims of sexual abuse still

“privileged” as they once were? Are inter-racial and intra-racial victim-offender dyads sentenced similarly? How does victim age affect the sentencing decision-making process? Sentencing research with sex offenders and non-sex offenders have identified victim race as an important predictor of sentencing severity. Studies of victim age and sex offender sentencing are less common. It is possible that sex offenders who victimize children may be sentenced more harshly than cases involving older victims. Third, as this study included only male sex offenders, the influence of race or ethnicity in the sentencing of female sex offenders was not explored.

Females represent a small but consistent subgroup of sex offenders, but the way they are processed by the criminal justice system has not been explored.

Several limitations should be mentioned. Although the DOC sentencing guidelines dataset is rich, it does not contain many important variables that may affect the sentencing decision. For example, beyond injury, there was no measure of victim characteristics. Prior research has shown that victim features, including race and age, affect the sentencing decision. Unfortunately, the available dataset does not include any information about victim characteristics; therefore, those analyses were not conducted. Second, sex offenders with prior convictions for sex offenders were not able to be identified. Although the models included measures of prior record, sex offenders who have been previously convicted for a sex offense are not known. It is possible that judges respond to recidivistic offenders in ways that are not captured by the sentencing points.

Third, as the sentencing guideline data set is a conviction-only data set, there was no way to examine sex offenders whose charges were reduced to a non-sex offense.

This chapter represents one of the few attempts to study sex offender sentencing in Florida.

The goal of this chapter was to contribute to the sentencing literature by examining the role of race and ethnicity in sex offender punishment. The findings suggest that the interplay between offender characteristics and judicial decision-making is a complex and dynamic process, one that may differ by offender type and age. Although this study focused on sex offenders specifically, other researchers may want to continue to examine sentencing outcomes disaggregated by offender type (e.g., drug offenders, white collar crime offenders, etc.). Such scholarly attempts work together to better clarify the role of race and ethnicity in criminal justice processing.

CHAPTER 5

RACE AND SEX OFFENDER SENTENCING: A MULTI-LEVEL ANALYSIS

Introduction

This chapter extends the work done in Chapter 4 by focusing on the effect of county racial and ethnic composition in the sentencing of sexual offenders. The findings from a wide body of sentencing research are clear—context matters (Chiricos and Crawford, 1995; Spohn, 2000). As

Eisenstein, Flemming, and Nardulli (1988) argued, the work of sentencing is not purely the application of law. Rather, sentencing decisions are responses to crime that reflect law as well as social values, beliefs and norms. To date, the role of context in the punishment of sex offenders specifically is understudied, and yet, there is reason to believe that sex offender punishment might be influenced by social context.

There is a large literature acknowledging court variation in sentencing outcomes (Fearn,

2005; Kautt, 2002 Ulmer and Kramer, 1998). These studies have focused on a variety of court contexts of interest, such as unemployment, economic disadvantage, crime rates, population density, court size and imprisonment rates (Fearn, 2005). One of the most commonly studied community contexts is racial composition (Britt, 2000; Demuth, 2000; Steffensmeier, et al.,

1998; Ulmer and Johnson; Wang and Mears, 2010). To explain the role of race in sentencing, one theory used is the racial threat or ethnic threat perspective (Britt, 2000; Crawford et al, 1998,

Fearn, 2005; Wang and Mears, 2010). Under this framework, the central argument is that a majority group uses the criminal justice system as a tool to maintain power and control over threatening minority groups. When subordinate groups grow in size or economic and political power, the ruling majority operates through the criminal justice system to increase control and quell this growing threat (Blalock, 1967; Liska, 1992).

Thus far, this approach has not been applied to studies of sex offender punishment. This gap is perplexing given the history of severe sentences applied to minorities—especially black males—accused of sexual assault. Further, there has been a reemergence of public and media focus on sex crime, and in particular, sex offender punishment, over the past 20 years. Thus, examining whether race influences the sentencing of sex offenders is important. One possibility is that sex offenders from jurisdictions with larger racial and ethnic minority populations will appear “more threatening” by tapping into historical notions of the hypersexualized black male

(Ferber, 2007; Rome, 2004; Tucker, 2003) and thus be subjected to harsher punishments. An alternative hypothesis is that contemporary notions of sex offenders, driven by recent media coverage of high-profile sex abuse cases, identify older white males as the targeted or typical threat group. From this perspective, sex offenders sentenced in counties with larger white populations may be more likely to be incarcerated. The existing scholarship on sex offender punishment has not examined these competing hypotheses.

Accordingly, the goal of this chapter is to address that gap in the literature. Specifically, the purpose of this chapter is to contribute to the sentencing literature by examining the effect of individual-level race and ethnicity and county-level racial and ethnic composition, as well as interactions between offender and county racial and ethnic characteristics, on sentencing outcomes for sex offenders. The key objective of this study, then, is to determine whether counties’ racial and ethnic composition influence sentencing decisions involving sex offenders.

To that end, this chapter will proceed in the following manner: first, the contributions and limitations of individual, contextual, and multilevel studies of sentencing will be discussed.

Second, I review theoretical frameworks used in this study to explain the relationship between offender characteristics, court context, and sentencing. Third, I provide the current study’s

87 justification and methodological approach. Fourth, I present the study results. Fifth, and finally, I conclude with a discussion of the findings and implications for future theory and research.

Background

Sentencing Research: A Multilevel Approach.

Scholars have taken a variety of approaches in studying sentencing. The earliest and most established sentencing literature examined individual level factors influencing the sentencing decision-making process (for a review, see Spohn, 2000; Zatz, 1987). Characteristics studied include offender race, victim race, offense seriousness, prior record, age, and case processing features. The outcomes of interest are usually incarceration (i.e., the “in/out” decision, prison versus jail, or prison versus other community sanctions) and sentence length.

These studies have made important contributions to our understanding of the process of sentencing. Key among them is the identification of the importance of defendant characteristics and case-level factors, such as offense seriousness and prior record. However, individual-level analyses do not control for clustering of cases within jurisdictions. Because cases prosecuted in the same jurisdictions will be treated similarly, the assumption of independence in error terms is violated if one does not account for the clustering of cases. One approach is to include county- level dummy variables to control for clustering in counties (Johnson, 2010). However, the limitation of this approach is that it does not identify which county-level variables are influencing sentencing outcomes.

Macro-level sentencing studies have addressed this issue by examining the effects of contextual characteristics on sentencing outcomes, usually incarceration rates (Bridges and

Crutchfield, 1988; Lessan, 1991; Stemen and Rengifo, 2011; Sutton, 2004). One key focus in this scholarship is the role of racial composition on imprisonment. For example, Jacobs and

Carmichael (2001) examined jurisdictional context and imprisonment rates and found that strength of republican ideology and the size of the black population were important predictors of incarceration rates. Jacobs and Kleban (2003) examined imprisonment rates from 13 countries

(in North America, Europe, and Australia) and found that a larger population of minorities in a given jurisdiction was associated with greater rates of incarceration. Scholars have also considered the effects of penal policy (Arvanites and Asher, 1995; Stemen and Rengifo, 2011) and economic inequality (Arvanites and Asher, 1995). A limitation to this approach, however, is that these studies do not account for the effects of defendant-level characteristics. Nor do macro- level approaches allow researchers to examine the effects of contextual level factors on individual sentencing decisions.

A third approach, multilevel modeling, addresses these limitations by allowing sentencing researchers to accurately model both defendant or case characteristics and contextual factors influencing judicial decision-making. Further, multilevel approaches can be used to examine the interaction between level 1 (offender) and level 2 (context) factors.

Although multilevel modeling has not yet been used in studies of sex offender sentencing, scholars have used this approach in the general sentencing literature (Fearn, 2005; Kramer and

Ulmer, 1997; Steffensmeier, 1998; Ulmer, 1997; Ulmer and Johnson, 2004; Wang and Mears,

2010). For example, Ulmer and Johnson (2004) used data from the Pennsylvania Commission on

Sentencing to examine incarceration and incarceration length. They found that sentencing outcomes primarily were driven by individual level factors, such as offense characteristics (e.g., crime type, offense seriousness) and offender demographics. Ulmer and Johnson also found contextual factors, such as county size and court caseload, predicted sanction type and length.

Fearn (2005) used data from the 1998 State Court Processing Statistics program and examined

89 the effects of both individual and community level variables on the sentencing decision. She found that community income level, religiosity, and violent crime rates were related to receiving prison, while racial composition, population density, and political affiliation did not predict a prison sentence.

Race, Racial Composition and Sentencing.

The scholarship examining the link between sentencing and county racial composition is conflicting. Bridges, Crutchfield, and Simpson (1987) were one of the first scholars to link racial threat with criminal sentencing. They found that counties with larger nonwhite populations sentenced nonwhite offenders to a prison term at greater rates than white offenders. Since then, many other scholars have followed suit, examining the role of county racial demographics on sentencing (Demuth, 2000; Kramer and Ulmer, 1996, Steffensmeier, 1998). For example, Britt

(2000) examined data from the Pennsylvania Commission on Sentencing and found that offenders in counties with larger black populations were more likely to be incarcerated than offenders living in counties with a smaller black population.

Other scholars have found no effects of racial composition on sentencing decisions (Fearn,

2005; Ulmer and Johnson, 2004). For example, Weidner, Frase, and Pardoe (2004) examined sentencing data from 1996 and found that the county racial composition was not associated with sentencing severity, nor were interactions between percent black and offender race.

Studies examining racial and ethnic threat together have also found mixed results. Recently,

Wang and Mears (2010) examined data from the State Court Processing Statistics system and found more support for the racial threat argument than for the ethnic threat argument.

Specifically, they found that black population size was related to increased use of prison

90 sentences, while the size of the Hispanic population was associated with a higher probability of jail sentences and a lower probability of prison sentences.

Mitchell (2005) conducted a meta-analysis of sentencing studies to examine the effects of race on sentencing decisions. Mitchell found significant effect sizes for jurisdiction size and southern region. Mitchell also found that after controlling for a number of individual and contextual factors, black defendants still received harsher sentences than whites.

The existing literature has provided important contributions to our understanding of the sentencing process. However, some limitations exist. Among them is the lack of attention to sex offenders. As described earlier, this gap is interesting because of the recent and sustained focus on sex offenders and sex offender punishment. Yet few scholars have investigated the ways in which this particular group of offenders is being sentenced. Another important, and related, limitation is that many of the datasets used in sentencing studies cover a period before, or at the immediate onset of, the wave of sex offender specific legislation. Studies examining more recent sentencing decisions may be useful in understanding how sex offenders are punished and whether that punishment is structured by race.

Theoretical Framework

County racial composition has been linked to a variety of crime-related issues, such as fear of crime (Skogan, 1990), perceived risk of victimization (Chiricos, et al., 2001) and reporting crime or victimization to law enforcement (Warner, 1992). There are several ways that race or ethnicity has been theorized to influence formal social control and court outcomes, as well. Blalock’s

(1967) power threat thesis argued that growing minority populations were perceived as threatening by the white majority. Blalock contended that political discrimination, symbolic

91 segregation, and the development of threat-oriented ideologies could be the result of the perceived threat of a growing minority population.

Much of the focus since Blalock’s power threat argument has been centered on political and economic threat. Liska (1992) broadened the issue of threat to include the context of race. Liska examined how racial composition of place—an indicator of threat—related to a wide variety of social control activities. Here, the criminal threat of minorities, as illustrated by a growing minority population, mobilizes the white majority’s efforts to exert and maintain control.

Other scholars have added to the racial threat literature by examining the process that exists between threat and community action. Informed by the court communities literature, scholars have argued that sentencing decisions are made within the social world of courts, and thus reflect not only individual factors but also the formal and informal norms of the court community (e.g.,

Eisenstein, et al., 1988; Ulmer, 1997). As such, variation across sentencing outcomes could reflect differences in court context.

How, then, does the racial threat framework explain sex offender sentencing specifically?

This question has not been addressed in the literature. Few studies have applied a threat perspective to understanding sex offender sentencing and no studies have examined the influence of court context on sentencing outcomes for sex offenders. Drawing from the racial and ethnic threat literatures may be useful in developing theoretical expectations.

Under a racial or ethnic threat perspective, court actors and community members

(specifically, whites) may feel threatened by a larger population of racial and ethnic minorities.

Part of this threat may stem from historical stereotypes of the hypersexual black male—where black males, especially young black males, are seen as sexually threatening to Whites, or more specifically, white females. Accordingly, a larger population of black residents could be viewed

92 as providing a larger pool of potential offenders. Consequently, the justice system, through court sanctions, may be used to exert control over the targeted threat population. Racially coded rape laws throughout American history did not target all racial groups, but rather, focused on black defendants specifically. As such, the expectation for how Hispanic sex offenders are sentenced is less clear. “Hypersexual” stereotypes do not appear to be applied similarly to Hispanics as they are to black offenders, though there may be more generalized notions of threat for this specific ethnic group. Under this framework, the following hypothesis emerges:

Hypothesis 1A: Counties with a larger black or Hispanic population will be more likely to

sentence sex offenders to a period of incarceration.

There is a second possibility, however. As shown in Chapter 4, black sex offenders are typically sentenced more harshly than white sex offenders, but this effect depends on age. While younger black sex offenders are more likely to be incarcerated than younger white sex offenders, by age 40 the relationship starts to change, and by age 60, white sex offenders are more likely to be sentenced to prison.

It is possible, then, that when the focus is on sex offenders, a new targeted threat group emerges: the middle aged white male. Recent news stories (e.g., Jerry Sandusky, Catholic

Church sex scandal) have illustrated cases involving trusted priests, coaches, and Boy Scout leaders (who on average are more likely to be older and white) as offenders. Here, the argument is that when court actors and community members think about sex offenders, they are actually referring to child molesters, which have been the main focus of media attention. And when courts and communities think of child molesters, images of older white males come to mind.

Thus, the targeted threat group in this scenario becomes the white male. Under this perspective, an alternative hypothesis emerges:

Hypothesis 1B: Counties with a larger white population will be more likely to sentence sex

offenders to a period of incarceration.

Racial threat arguments typically focus on the threat posed by minorities—usually Blacks and more recently, Hispanics. It is possible, though, that perceived threat is structured by crime type, and therefore, what the targeted threat group “looks like” may vary. This chapter is one of the first attempts to investigate this idea.

Two additional hypotheses stem from these initial hypotheses. Under the racial threat framework, black and Hispanic offenders, as representatives of the threatening social group, symbolize that threat both at the individual level, as well as the county level. Therefore, I offer the following hypothesis:

Hypothesis 2A: Black and Hispanic sex offenders in counties with a larger black or Hispanic

population will be more likely than whites to be sentenced to incarceration.

The alternative hypothesis, grounded in the white sex offender threat hypothesis, suggests that white offenders in “whiter” counties will be sentenced most severely, as they represent the threat of sex offenders more than minority offenders. The formal hypothesis is:

Hypothesis 2B: White sex offenders in counties with smaller black or Hispanic communities

will be more likely to be sentenced to incarceration than black or Hispanic sex offenders.

Current Study

The purpose of this chapter is to advance scholarship on sex offender sentencing by examining the effects of county-level racial and ethnic demographics on judicial decision- making. This is the first attempt to examine sex offender sentencing using a multilevel framework. This gap in the literature is notable given the various approaches to sex offender punishment found at the county level (e.g., county variation in residence restriction requirements).

Florida provides a useful setting to examine sex offender sentencing for several reasons.

First, the size of the sex offender population is larger than in many other states—according to the

National Center for Missing and Exploited Children (2012), the sex offender population in

Florida is approximately 60,000 or 317 per 100,000. A large sample of sex offenders (n=15,554) contains enough cases per county to allow a multilevel study of sentencing. Second, Florida has not only experienced several high profile cases of sexual violence, but it is often one of the first states to draft and pass sex offender legislation. In addition, Florida was one of the first states in compliance with the Adam Walsh Act. Third, as Florida’s sex offender laws are often used as models for other states, the results found here could be generalizable to other jurisdictions. Thus, a study of sex offender punishment in Florida is valuable because the state has prioritized, and served as the model for, official responses to sexual abusers.

Methodology

Data Source.

This study utilized sentencing data from the Florida DOC covering the years 2000 to 2009.

The DOC sentencing guideline dataset is a useful tool to examine judicial decision-making in the age of guided sentencing policy. The dataset contained information on offense seriousness, prior record, sentencing “score”, and individual level characteristics, such as age, race, and ethnicity.

County of sentence was matched with county level demographic data from the Florida Bureau of

Economic and Business Research (BEBR) which contained racial and ethnic composition measures from the 2000 Census. The final sample size consists of 15,554 convicted male sex offenders in 66 Florida counties (1 county did not sentence any sex offenders during the study period).

Measures.

The dependent variable of interest in this study is sanction type. Here, the outcome is measured as 1=incarceration (i.e., prison or jail) and 0=community sanction (i.e., community control or probation).

The individual-level variables from Chapter 4 are used in this chapter, as well. Race and ethnicity is measured with three dummy variables for non-Hispanic Black, non-Hispanic White, and Hispanic (1=Yes, 0=No), which come from DOC databases. Age is a continuous measure, and a squared age term is also included in the analysis. Continuous measures of offense seriousness and prior record are used to measure the seriousness of the offense at conviction and the offender’s criminal history. The defendant’s presumptive sentence measured by a dummy variable score to prison (1=Yes, 0=No) was included, as was the variable trial, which indicates whether the offender went to trial (1) or pled guilty (0).

County-level measures from the 2000 Census are also used in this chapter’s analyses.

Percent Black is a continuous measure of the size of the black resident population in each county. Percent Hispanic is a measure of the size of a county’s Hispanic resident population.

Disadvantage is a scale measure of a county’s economic disadvantage, and is made up of four items (alpha=.88): median household income, percent of residents in poverty, unemployment rate, and percent of families on welfare. Higher scores on the disadvantage scale indicate greater levels of disadvantage.

Analytic Strategy.

The analyses will be presented in the following order. First, descriptive statistics of the study sample will be presented. Second, the logistic regression model from Chapter 4 (which utilized dummy controls for county) will be presented for the sake of comparison to the multilevel models. Third, multilevel logistic regression models predicting incarceration will be presented.

Fourth, the multilevel logistic regressions will be repeated using conditional models that examine black, white, and Hispanic offenders separately.

Findings

Descriptive statistics for the sample are provided in Table 5.1. As described in Chapter 4, 56 percent of the sample is non-Latino white, 28 percent of the sample is non-Latino black, and 16 percent of the sample is Hispanic. The average age of convicted sex offenders in this sample is

35. Approximately 72 percent of all sentencing events for sex offenders end in a term of incarceration. Ninety percent of offenders score to prison, meaning they accrued enough points to warrant a prison sentence. Like in most sentencing events, the vast majority of offenders in this sample pled guilty. Indeed, only 6 percent of convicted offenders opted to take their case to trial. County level demographics are also included in Table 5.1. As shown, the average size of

97 the black resident population is 15 percent. The average size of the Hispanic resident population across counties is 13 percent.

Table 5.1. Descriptive statistics, convicted sex offenders in Florida, 2000-2009 Mean S.D. Min Max Dependent Variable Incarceration 0.72 0.45 0 1 Level-1 Independent Variables Black 0.28 0.45 0 1 Hispanic 0.16 0.37 0 1 White 0.56 0.50 0 1 Age 35.29 13.01 18 88 Offense seriousness 63.54 23.28 0 116 Prior record 5.71 15.55 0 386 Score to prison 0.90 0.30 0 1 Trial 0.06 0.24 0 1 Level-2 Independent Variables Percent Black 0.15 0.08 0.02 0.58 Percent Hispanic 0.13 0.14 0.02 0.57 N=15,554

Table 5.2 displays descriptive statistics for the sample, but disaggregates by racial group. A larger proportion of black offenders (77 percent) were sentenced to incarceration than white sex offenders (71 percent), and compared to whites, a smaller proportion of Hispanic offenders (64 percent) were given incarceration. On average, black (32 years) and Hispanic (34 years) sex offenders were slightly younger than white sex offenders (37 years).

We now move to the multilevel logistic regression models shown in Table 5.3. Model 1 shows the logistic regression from Chapter 4 for comparison purposes. Here, county-level controls are used to account for clustering. To summarize, the results show that black sex offenders’ odds of incarceration were 42 percent higher than the odds of incarceration for white sex offenders. Younger sex offenders had higher odds of incarceration but older sex offenders

(ages 60 years or more) had slightly lower odds of incarceration. Offenders who scored to prison had higher odds of incarceration, as did those offenders who went to trial.

Though model 1 controls for the influence of county level clustering, the use of dummy variables for county does not indicate which county level variables affect sentencing outcomes.

To examine this, the remaining regression models use a multilevel approach to account for clustering within counties as well as to examine the influence of county-level racial demographics on sentencing. Model 2 shows that counties with larger black and Hispanic resident populations have lower odds of incarceration (OR=.19 and .27, respectively) than counties with smaller resident minority populations.

Accounting for racial and ethnic demographics and county-level clustering did not reduce the effects of the individual-level variables. Here, the pattern is substantively the same. Black sex offenders have higher odds of incarceration than whites, but Hispanic sex offenders did not significantly differ from white sex offenders. The effects of age and the legally-relevant case characteristics remained the same.

Model 3 in Table 5.3 replicates the analysis in the previous model, but adds a measure for county-level disadvantage. Controlling for disadvantage better estimates the effects of percent

Black and percent Hispanic without the confounding influence of county-level disadvantage.

Here, the effect for disadvantage is nonsignificant, and the odds ratios for percent Black

(OR=.13) and percent Hispanic (OR=.22) are slightly reduced. Once again, the analyses reveal that counties with larger populations of Blacks and Hispanics sentence their sex offenders less severely.

Table 5.4 shows the results for the multilevel conditional models predicting incarceration for convicted sex offenders. The purpose of this series of analyses was to examine how offender

Table 5.2. Descriptive statistics by race, convicted sex offenders in Florida, 2000-2009 Black White Hispanic Mean S.D. Min Max Mean S.D. Min Max Mean S.D. Min Max Dependent Variable Incarceration 0.77 0.42 0 1 0.71 0.45 0 1 0.64 0.48 0 1 Level-1 Independent Variables Age 32.12 10.89 18 86 37.29 13.72 18 88 33.87 12.62 18 88 Offense seriousness 66.36 21.67 0 116 61.24 24.19 0 116 66.57 21.84 4 116 Prior record 18.19 47.56 0 953 24.28 83.39 0 4082 24.66 63.75† 0 1402 Score to prison 0.94 0.23 0 1 0.87 0.33 0 1 0.92 0.27 0 1 Trial 0.08 0.26 0 1 0.06 0.23 0 1 0.05 0.22† 0 1 Level-2 Independent Variables Percent Black 0.18 0.09 0.02 0.58 0.13 0.07 0.02 0.58 0.15 0.07 0.02 0.58 Percent Hispanic 0.14 0.15 0.02 0.57 0.09 0.09 0.02 0.57 0.22 0.19 0.02 0.57 Disadvantage 0.07 0.90 -1.60 2.90 -0.09 0.75 -1.60 2.90 0.18 1.06 -1.60 2.65 N 4,351 8,674 2,529 †All differences in means were statistically significant (p<.05) except for Hispanic-White differences in prior record points and whether the offender went to trial

100

Table 5.3. Multilevel logistic regression predicting incarceration for convicted sex offenders, 2000-2009 Model 1a Model 2 Model 3 b S.E. OR b S.E. OR b S.E. OR Black 0.35 .07 1.42*** 0.35 .07 1.42*** 0.35 .07 1.42*** Hispanic -0.09 .053 .917 -0.09 .05 .92 -0.09 .05 .92 Age 0.11 .009 1.12*** 0.11 .01 1.12*** 0.11 .01 1.12*** Age2 0.00 .000 1.00*** 0.00 .00 1.00*** 0.00 .00 1.00*** Offense seriousness 0.01 .001 1.01*** 0.01 .00 1.01*** 0.01 .00 1.01*** Prior record 0.00 .000 1.00*** 0.00 .00 1.00*** 0.00 .00 1.00*** Score to prison 1.47 .317 4.35*** 1.46 .31 4.30*** 1.46 .31 4.30*** Trial 1.66 .720 5.25*** 1.65 .72 5.23*** 1.65 .72 5.23*** Percent Black ------1.65 .13 .19* -2.06 .09 .13** Percent Hispanic ------1.29 .17 .27* -1.50 .14 .22* Disadvantage ------0.09 .07 1.10 Constant -4.55 .005 .01 -3.03 .01 .05 -2.98 .01 .05 *p<.05, **p<.01, ***p<.001 N=15,554 aModel includes controls for county to account for clustering

101

Table 5.4. Multilevel logistic regression predicting incarceration for convicted sex offenders in Florida, 2000-2009 (conditional models) Black White Hispanic b S.E. O.R. b S.E. O.R. b S.E. O.R. Age 0.14 0.02 1.15*** 0.11 0.01 1.12*** 0.10 0.02 1.11*** Age2 0.00 0.00 1.00*** 0.00 0.00 1.00*** 0.00 0.00 1.00*** Offense seriousness 0.02 0.00 1.02*** 0.01 0.00 1.01*** 0.02 0.00 1.02*** Prior record 0.00 0.00 1.00** 0.00 0.00 1.00*** 0.00 0.00 1.00** Score to prison 1.22 0.16 3.40*** 1.53 0.09 4.64*** 1.53 0.20 4.62*** Trial 1.67 0.26 5.31*** 1.64 0.18 5.16*** 1.74 0.33 5.69*** Percent Black -2.40 0.64 0.09*** -2.21 0.91 0.11* -1.87 1.07 0.15 Percent Hispanic -2.72 0.50 0.07*** -1.01 0.74 0.37 -2.89 0.70 0.06*** Disadvantage 0.16 0.08 1.17* 0.13 0.08 1.13 0.19 0.10 1.21 Constant -2.78 0.37 0.06 -2.98 0.26 0.05 -2.96 0.43 0.05 N 4,351 8,674 2,529 *p<.05, **p<.01, ***p<.001

102 race interacted with county-level measures of racial and ethnic population size. In model 1, a subsample of 4,351 black sex offenders was used. Here, percent Black and percent Hispanic operated in a consistent manner—black offenders living in counties with a larger black and

Hispanic population had lower odds of incarceration than those black offenders living in largely white counties. For black offenders, county-level disadvantage becomes statistically significant.

Black offenders living in more disadvantaged counties had higher odds of incarceration than black offenders living in less disadvantaged counties.

Model 2 examines the effect of county demographics for white sex offenders only (n=8,674).

The effect of a county’s black population remains—white offenders living in counties with more black residents had lower odds of incarceration (OR=.11) than offenders living in counties with smaller black populations. The effect of percent Hispanic and county-level disadvantage were no longer significant.

Finally, model 3 examines sentencing outcomes for Hispanic offenders only (n=2,529). The findings show that Hispanic offenders living in counties with larger populations of Hispanic residents have lower odds of incarceration (OR=.06). Percent black and county-level disadvantage are not significant predictors of incarceration for Hispanic sex offenders.

Ancillary analyses tested whether coefficients across the conditional models were statistically different (Paternoster, Brame, Mazerolle and Piquero, 1998). These tests found no statistically significant differences across models. Put differently, the effects of percent Black and percent Hispanic did not differ significantly across white, black, and Hispanic models.

Analyses (not shown here) were also conducted using percent White as the county variable of interest. The results, as expected, mirrored the findings presented here. Counties with larger white populations were more likely to sentence sex offenders to a period of incarceration. The

103 effect maintained in conditional models. Black, white, and Hispanic sex offenders in larger

“white” counties had higher odds of incarceration than those offenders in counties with a smaller white population.

Discussion and Conclusion

The purpose of this chapter was to examine sentencing outcomes in a multilevel framework.

Prior scholarship has shown that sentencing decisions are not made in a vacuum. Instead, county context matters. This chapter explored two such contexts: racial and ethnic population. The goal of this analysis was to examine whether a county’s racial and ethnic characteristics were significant predictors of incarceration for sex offenders. Two competing hypotheses were used to explain why county-level race and ethnic makeup matters in sentencing. In Hypothesis 1A, I drew on racial threat and ethnic threat arguments which suggest that larger minority populations represented a growing threat to the white majority, who then use the criminal justice system

(e.g., sentencing) to suppress that perceived threat. Under that hypothesis, I expected that counties with larger populations of black or Hispanic residents would be more likely to sentence sex offenders to prison.

The alternative argument, Hypothesis 1B—termed the “white sex offender threat” hypothesis—argues that the current racial typification of sex offenders is not that of young blacks or Hispanics but rather, of middle aged whites. In this context, middle aged whites represent the threat, or the targeted offender population. Consequently, under this view, we might expect that counties with larger populations of white residents would be more likely to sentence sex offenders to incarceration. The results provide partial support for both hypotheses.

With regard to Hypothesis 1A, the results showed that even after including county-level racial characteristics, individual-level race remained significant, providing support for the racial

104 threat argument. Specifically, net of controls and county-level racial composition, black sex offenders still have higher odds of incarceration than white sex offenders. According to the racial threat argument, judges sentence black offenders more severely because they are seen as representatives of a threatening group. At the individual level, a sex offender’s racial status may be tapping into historical notions of threat, especially as it pertains to the perceive threat of sexual violence, and thus, judges respond in a more punitive fashion. I found no support for an ethnic threat argument. Across models, Hispanic offenders were not statistically significant than white offenders.

At the contextual level, I do not find support for the racial threat or ethnic threat hypothesis that the size of a county’s black or Hispanic population will be positively associated with sentence severity. Rather, I find the opposite. Net of the effects of offender characteristics and county-level disadvantage, those counties with larger minority populations were, in fact, less likely to incarcerate their sex offenders. This finding provides partial support for Hypothesis 1B.

Though white sex offenders were less likely to be incarcerated than black sex offenders at the individual level, at the county level, the size of the white population was positively associated with sentence severity. Counties with a larger minority population were less likely to rely on incarceration as punishment for sex offenders. According to the white sex offender threat hypothesis, a larger population of white residents means a larger “pool” of potential sex offenders. Thus, counties with more potential offenders are more likely to use incarceration as punishment.

Cross-level interactions were also examined with conditional models. According to hypothesis 2A (the racial threat argument), black and Hispanic sex offenders in counties with larger minority populations should be more likely to be incarcerated. Hypothesis 2B (the white

105 sex offender threat argument), on the other hand, expected that white offenders in counties with larger white populations should be sentenced most severely. Both hypotheses were not supported. The effect of racial composition was relatively consistent (i.e., places with smaller minority populations were less likely to incarcerate sex offenders), and coefficients across the

Black, White, and Hispanic samples were not statistically different from one another.

How does one reconcile the difference in the effect of race at the individual level (where black sex offenders are sentenced more severely) and the contextual level (where “whiter” counties are more likely to incarcerate offenders convicted of sexual assault)? One explanation is that threat operates at both the individual and contextual levels in distinct ways. Whereas the sentencing of a black sex offender may be influenced by the judge’s view of the danger posed by that offender, a county’s approach to sentencing sex offenders may tap into broader notions of the threat posed by white sex offenders. Put differently, the threat posed by sex offenders, which guides sentencing approaches at the macro level, does not eliminate the perceived threat of the offender at the individual level.

A second potential explanation is that this finding is actually tapping into notions about the value of victims and how that valuation system is structured, at least in part, by race. In places where the black or Hispanic population is high, one could reasonably conclude that the “victim pool” is also disproportionately black or Hispanic. If sex offenders living in these areas are less likely to be incarcerated, it may be due to the fact that their victims are seen as less deserving of protection by the court or that their victimizations were less severe. The fact that sex offenders of all races “benefit” from being sentenced in counties with larger minority populations—in that they are less likely to be incarcerated—seems to suggest that it is something about place that influences sentencing beyond the race of the particular offender. This hypothesis has been used

106 to explain sentencing for non-sexual assault cases, such as capital sentencing (Kleck, 1981;

Sorenson and Wallace, 1995) or in cases of homicide (Hawkins, 1983; 2002). Although this argument has been applied in other areas of sexual assault research, such as public perceptions of victim culpability (George and Martínez, 2002), thus far scholars have not explored the valuation of victims of color in sex offender sentencing. Unfortunately, this explanation could not be investigated here because the dataset used does not contain victim information.

Other commonly-used explanations for punitiveness against non-sex offenders may not help explain patterns found in sex offender sentencing. For example, one possible explanation is that the race effect is being driven by county-level political makeup. Here, if counties with larger populations of white residents are also more conservative (and thus, more supportive of a crime control function of the justice system), we might expect sex offenders to be sentenced more harshly in these communities. However, liberal or progressive politics are also associated with the victims’ rights movement, which has called for a greater focus on the victim and increased prosecution of cases of sexual abuse. It is not exactly clear that more progressive counties would be less punitive when it comes to cases of sexual assault.

Another possible argument focuses on crime in these communities. If counties with larger minority populations are concentrated in urban settings, which have higher rates of crime, it is possible that sex crime is concealed by the overall experience with crime. Put differently, a community with high rates of crime, especially violent crime, might not feel as threatened by sex crime specifically. On the other hand, urban centers have also put in place some of the strictest ordinances for sex offenders in Florida. For example, in Miami, residence restrictions for sex offenders were so broad that sex offenders were forced to live under a bridge in order to remain in compliance with the housing restrictions (Barnes, 2011). It is not exactly clear why sex

107 offender sentencing would be more lenient, but sex offender management would be more punitive.

The findings that emerged from this analysis point to several areas needing future development by scholars. With regard to theory, this study shows that theories of formal social control structured by threat should be further investigated across different offending contexts.

Sex offender sentencing does not appear to conform to racial and ethnic threat explanations found in the general sentencing literature. Why? It is possible that images of the racial typification of crime and threat vary by type of offense. If this notion is true, then more nuanced discussions of racial and ethnic threat theories and their influence on formal social control are needed.

As discussed earlier, it is also possible that victims of sexual assault are judged differently according to their race. Prior sentencing studies have examined the effects of victim characteristics on criminal justice outcomes like sentencing, but this scholarship does not appear to be working under a central theory. Scholars should explore the idea of victim valuation— which could cover several key areas, such as gender, race, economic status, and behavior—to examine the perception of victimization and the resulting action taken by the criminal justice system.

This study highlights important areas for research, as well. Scholars should continue to look at the effects of county-level characteristics on sex offender sentencing. This chapter focused on one court context—county level racial and ethnic demographics—but certainly there are others that may be important, such as political affiliation, religiosity, and crime rates. Another context of interest may be size of the sex offender population in the community. One detective in Palm

Beach County indicated that, in his view, some citizens are becoming “desensitized” to sex

108 offenders living in their neighborhoods (Personal communication, 2013). After years of community notification, and very little trouble from offenders in the neighborhood, some of the initial concern is not as apparent. Two key questions emerge: 1) is this “desensitizing” occurring systematically throughout the county and state; and if so, 2) what is the effect on sex offender punishment?

Sex offender punishment has been a central focus for the public and media for the past few decades. As identified in prior research and demonstrated here, the processing of sex offenders is a dynamic process that relies not only on offense and offender characteristics, but also on place.

By examining both individual and contextual predictors of sentencing, a more complete picture of sex offender punishment emerges.

109

CHAPTER 6

CONCLUSION

Summary

In the past 20 years, federal and state legislatures have enacted legislation aimed at enhancing punishment for sex offenders. Applying a “get-tough” approach to sex offender punishment and management, states have implemented a range of requirements for sex offenders to follow. In addition, states have also enhanced their official punishment protocol for sex offenders, resulting in a greater likelihood of incarceration and when incarcerated, a lengthier term to serve. Despite this renewed interest in sex offender management and punishment by policy makers, media, and the public, scholars have not examined sex offender sentencing systematically. The purpose of this dissertation was to address this gap in the research by examining the history and evolution of sex offender punishment, recent patterns and trends in sentencing, and the role of race and ethnicity in judicial decision-making for sex offenders.

This dissertation has contributed to the sex offender and sentencing literatures in several ways. Chapter 2 examined punishment philosophies as well as the evolution of sex offender punishment in America. A review of this history highlighted the idea that sex offender punishment is a dynamic process that is informed by the prevailing punishment philosophies, political environment, and cultural norms. Whereas sex offender punishment at points in the past had a rehabilitative focus, current American sex offender policy is grounded in incapacitation and retribution. Chapter 2 also examined whether contemporary sex offender punishment is a reflection of a general move towards “get tough” crime policy for all offenders. This chapter acknowledged this shift in crime policy generally, but also argued that sex offenders receive punishments and probation requirements beyond what other types of offenders receive. For

110 example, sex offenders face lifetime registration, community notification, residence restrictions, and the possibility of civil commitment. Failing to comply with registration terms is charged as a failure to register—a felony that can send offenders back to prison for longer than their original term served. These civil sanctions are framed as management policies, and not forms of punishment, but as Chapter 2 showed, civil sanctions do have punitive functions. Thus, while responses to crime in general have gotten “tougher,” this renewed focus on punishment has been especially pronounced for sex offenders.

Chapter 3 examined patterns and trends in sex offender sentencing in Florida. The contribution of this chapter is that it is one of the first systematic descriptive accounts of sex offender punishment in Florida. Results showed that over time, sex offender punishment has gotten more severe, and sentences differ from those punishments imposed upon non-sex offenders. Indeed, the majority of sex offenders convicted in Florida today are given prison sentences. The related finding is that probation is used less often in recent sentencing events, but when used, offenders will be supervised for longer periods of time.

Chapter 4 examined the role of race and ethnicity in sex offender sentencing. Using racial threat and ethnic threat arguments as a theoretical guide, this chapter examined sentencing decisions (incarceration versus community sanctions) for convicted sex offenders in Florida, from 2000 to 2009. Results showed that black sex offenders were more likely to be sentenced to incarceration than white sex offenders, but this effect varied by age. Importantly, the probability of incarceration peaks at age 40 for all offenders. But, while black offenders between the ages of

18 and 60 were more likely than their white counterparts to be incarcerated, elderly black sex offenders (60 years and older) were less likely to be incarcerated. In comparison, Hispanic sex offenders were sentenced in a similar manner as white sex offenders. The contribution of this

111 chapter was that it was one of the first studies to apply a racial threat and ethnic threat perspective to sex offender sentencing.

Chapter 5 extended the work in the previous chapter by examining sex offender sentencing in a multilevel framework. Specifically, this chapter is the first study to examine the role of offender race and ethnicity and county racial and ethnic composition and their effect on sex offender sentencing. In addition, this chapter explored the cross level interactions between offender race and ethnicity and county racial and ethnic demographics. Two patterns of findings emerged. First, net of individual level controls and county racial composition, black sex offenders had higher odds of incarceration than white sex offenders. But, at the county level, the effect of racial composition was the opposite. Counties with larger populations of black and

Hispanic residents were less likely to sentence their offenders to incarceration. There was no evidence of a statistically significant interaction between offender race and ethnicity and county racial and ethnic composition.

Implications

This dissertation highlights areas for future theoretical development. Despite the substantial focus on sex offenders in policy and media, criminological theory has not traditionally examined sex offenders as a separate class of offenders. This may be, in part, due to a preference for general theories of crime. But as this dissertation demonstrated, sex offenders are a distinct offender group because they are treated or viewed differently than other offenders—primarily, that they are more dangerous, unable and unwilling to be rehabilitated, and destined to reoffend sexually.

To date, few studies have assessed racial threat theory using samples of sex offenders. This dissertation shows that the discipline could benefit from such an endeavor. Such theoretical

112 development could be extended to other types of offender groups, as well. Notions of threat may be informed not only by race, but by offender type as well. Put differently, does the racial threat argument apply equally for drug offenders as white-collar criminals? Arguably, it would not.

Racial threat theories then could be supplemented, or enhanced, by a more nuanced understanding of how threat is structured by both race and offender “type.”

This dissertation also identifies potential avenues for future research. First, Chapter 3 showed that sex offender punishment has gotten more severe over time—sex offenders are now more likely to serve terms in prison than in the community. Indeed, despite the increased likelihood of a prison sentence, the public often argues that it is “not enough,” demanding tougher sentences.

Is this sustainable? Can we incarcerate our way out of our sex offender problem? Though not explored in this dissertation, this question is one that states are beginning to explore. Recent evidence examining challenges associated with the implementation of the Adam Walsh Act suggests that some states are now questioning the utility and practicality of sex offender legislation and whether their budget can allow for enhanced punishment approaches.

A second implication is that female sex offender sentencing should be explored. Though the multivariate analyses in Chapter 4 and Chapter 5 were restricted to males, females do make up a small, but fairly consistent proportion of the sex offender base. Yet female sex offender sentencing remains underexplored. Scholars should examine the evolution of punishment for female sex offenders, as completed for males in this dissertation, and whether punishment approaches differ between males and females.

Third, scholars should examine other community contexts that may influence sex offender sentencing. This research was focused primarily on race and ethnicity. However, prior research has identified contexts that influence general sentencing decisions, such as political context,

113 religious attachment, crime rates, county-level education, and others. To date, researchers have not explored whether these community-level features influence sex offender sentencing specifically.

Sex offender punishment remains a “hot button” issue for legislators and community members, but it remains understudied. This purpose of this dissertation was to contribute to the sex offender and sentencing literatures by exploring punishment among this group of offenders.

Taken together, the chapters showed that sex offender punishment is an evolving processing that is influenced by a host of factors. As states continue to develop and enforce punitive responses to sex offenders, questions about the utility, sustainability, fairness, and application of these responses will warrant investigation.

114

REFERENCES

Albonetti, Celesta A. 1991. An integration of theories to explain judicial discretion. Social Problems 38: 247-266.

--. 1997. Sentencing under the Federal Sentencing Guidelines: Effects of defendant characteristics, guilty pleas, and departures on sentencing outcomes for drug offenses, 1991- 1992. Law and Society Review 31: 789-822.

Alozie, Nicholas O., and C. Wayne Johnston. 2000. Probing the limits of the female advantage in criminal processing: Pretrial diversion of drug offenders in an urban county. The Justice System Journal 21: 239-259.

Anderson, Amy L. and Lisa L. Sample. 2008. Public awareness and action resulting from sex offender community notification laws. Criminal Justice Policy Review 19: 371-396.

Armstrong, Gaylene S., and Beth C. Freeman. 2011. Examining GPS monitoring alerts triggered by sex offenders: The divergence of legislative goals and practical application in community corrections. Journal of Criminal Justice XX: XX-XX.

Arvanites, Thomas M. and Martin A. Asher. 1995. State and county incarceration rates: The direct and indirect effects of race and inequality. American Journal of Economics and Sociology 57: 207-222.

Banauch, Dawn M. 2012. Changing same-sex marriage attitudes in America from 1988 through 2010. Public Opinion Quarterly 2: 364-378.

Barbaree, H. E. and R. Blanchard. 2008. Sexual deviance over the lifespan: Reductions in deviant sexual behavior in the aging offender. In D.R. Laws and W.T. O’Donohue (Eds.), Sexual Deviance: Theory, assessment, and treatment (2nd ed., pp. 37-60). New York: Guilford Press.

Barnes, J. C. 2011. Place a moratorium on the passage of sex offender residence restriction laws. Criminology and Public Policy 10: 401-409.

Benson, Phil. (17 April 2013). Florida sex offenders ID’d with signs outside their homes. Retrieved from http://www.kpho.com/story/22007438/fl-sex-offenders-idd-with-signs- outside-their-homes.

Blalock, Howard. 1967. Toward a theory of minority-group relations. New York: Wiley.

Bontrager, Stephanie, William Bales, and Ted Chiricos. 2005. Race, ethnicity, threat and the labeling of convicted felons. Criminology 43: 589-622.

115

Brakke, David. 2001. Ethiopian demons: Male sexuality, the black-skinned other and the monastic self. Journal of the History of Sexuality 10: 501-535.

Brennan, Pauline K. 2006. Sentencing female misdemeanants: An examination of the direct and indirect effects of race/ethnicity. Justice Quarterly 23: 60-95.

Brewer, Paul R. 2003. The shifting foundations of public opinion about gay rights. Journal of Politics 65:1208–20. Britt, Chester. 2000. Social context and racial disparities in punishment decisions. Justice Quarterly 17: 707-732.

Chaffin, Mark. 2008. Our minds are made up—don't confuse us with the facts: Commentary on policies concerning children with sexual behavior problems and juvenile sex offenders. Child Maltreatment 13: 110-121.

“Child rape sentence upsets family, prosecutors.” 1992. The Wenatchee World (Wenatchee, WA). 17 July.

Church, Wesley T., Fei Sun, and Xiao Li. 2011. Attitudes toward the treatment of sex offenders: A SEM analysis. Journal of Forensic Social Work 1: 82-95.

Crawford, Charles, Ted Chiricos, and Gary Kleck. 1998. Race, racial threat, and sentencing of habitual offenders. Criminology 36: 481-512.

Chiricos, Theodore G. and Charles Crawford. 1995. Race and imprisonment: A contextual assessment of the evidence. In D. Hawkins (ed.) Ethnicity, race, and crime (pp. 281-309). Albany, NY: New York University Press.

Cohen, Michelle and Elizabeth L. Jeglic. 2007. Sex offender legislation in the United States: What do we know? International Journal of Offender Therapy and Comparative Criminology 51: 369-383.

Crow, Matthew S. and Katherine A. Johnson. 2008. Race, ethnicity, and habitual-offender sentencing. Criminal Justice Policy Review 19: 63-83.

De Young, Mary. 2004. The day care ritual abuse moral panic. Jefferson, NC: MacFarland and Company, Inc.

Doerner, Jill K. and Stephen Demuth. 2010. The independent and joint effects of race/ethnicity, gender, and age on sentencing outcomes in U.S. federal courts. Justice Quarterly 27: 1-27.

Duwe, Grant and Robin A. Goldman. 2009. The impact of prison-based treatment on sex offender recidivism: Evidence from Minnesota. Sexual Abuse: A Journal of Research and Treatment 21: 279-307.

116

Edwards, William and Christopher Hensley. 2001. Restructuring sex offender sentencing: A therapeutic jurisprudence approach to the criminal justice process. International Journal of Offender Therapy and Comparative Criminology 45: 646-662.

Eisenstein, James, Roy B. Flemming and Peter F. Nardulli. 1988. The contours of justice: Communities and their courts. Boston, MA: Little, Brown and Company.

Engen, Rodney L. and Randy R. Gainey. 2000. Conceptualizing legally relevant factors under guidelines: A reply to Ulmer. Criminology 38: 1245-1252.

Engen, Rodney L., Randy R. Gainey, Robert D. Crutchfield, and Joseph G. Weis. 2003. Discretion and disparity under sentencing guidelines: The role of departures and structured sentencing alternatives. Criminology 41: 99-130.

Fearn, Noelle E. (2005). A multilevel analysis of community effects on criminal sentencing. Justice Quarterly 22: 452-487.

Ferber, Abby L. 2007. The construction of black masculinity: White supremacy now and then. Journal of Sports and Social Issues 31: 11-24.

Fisher, Bonnie S., Francis T. Cullen and Leah E. Daigle. 2005. The discovery of acquaintance rape: The salience of methodological innovation and rigor. Journal of Interpersonal Violence 20: 493-500.

Fisher, Dawn, Anthony Beech, and Kevin Browne. Comparison of sex offenders to non-offenders on selected psychological measures. International Journal of Offender Therapy and Comparative Criminology 43: 473-491.

Fox, Kathryn J. 2013. Incurable sex offenders, lousy judges, and the media: Moral panic sustenance in the age of new media. American Journal of Criminal Justice 38: 160-181.

Florida Department of Corrections. 2011. Florida criminal punishment code. Tallahassee, FL: Author.

Florio, Gwen. 2011. “Man sentenced to almost 22 years for sexually exploiting 10-year-old Helena boy.” Missoulian (Missoula, MT). 28 July.

Frase, Richard S. 2005. State sentencing guidelines: Diversity, consensus and unresolved policy issues. Columbia Law Review 105: 1190-1232.

George, William H. and Lorraine J. Martinez. 2002. Victim blaming in rape: Effects of victim and perpetrator race, type of rape, and participant racism. Psychology of Women Quarterly 26: 110-119.

Glueck, Sheldon and Eleanor Glueck. 1950. Unraveling juvenile delinquency. New York: Commonwealth Fund.

117

Gottfredson, Michael R. and Travis Hirschi. 1990. A general theory of crime. Palo Alto, CA: Stanford University Press.

Goode, Erica. (2011, November 5). Life Sentence for Possession of Child Pornography Spurs Debate Over Severity. New York Times, p. A9.

Greenfeld, Lawrence. 1997. Sex offenses and offenders: An analysis of data on rape and sexual assault. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Hanson, R. Karl. 2002. Recidivism and age: Follow-up data from 4,673 sexual offenders. Journal of Interpersonal Violence 17: 1046-1062.

Hanson, R. Karl and Andrew J. R. Harris. 2000. Where should we intervene? Dynamic predictors of sexual offense recidivism. Criminal Justice and Behavior 27: 6-35.

Harris, Andrew J. 2009. The civil commitment of sexual predators: A policy review. In R. G. Wright (Ed.) Sex offender laws: Failed policies, new directions (pp. 339-372). New York: Springfield Publishing Company, Inc.

Harrison, P.M. and Beck, A.J. 2006. Prison and jail inmates at midyear 2005. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Hawkins, Darnell F. 1995. Ethnicity, race, and crime: Perspectives across time and place. Albany, NY: State University of New York Press.

Hauser, Renate. 1994. Krafft-Ebing’s psychological understanding of sexual behaviour. In R. Porter and M. Teich (Eds.) Sexual knowledge, sexual science. New York: Cambridge University Press.

Hollaran, David and Cassia Spohn. 2004. On the use of the total incarceration variable in sentencing research. Criminology 42: 211-240.

Howse, John. 1992. “A Saskatchewan town confronts the horror of child sexual abuse charges.” Maclean’s (Martensville, Saskatchewan). 105: 26-29. 22 June.

Huebner, Beth M., and Timothy S. Bynum. 2006. An analysis of parole decision making using a sample of sex offenders: A focal concerns perspective. Criminology 44: 961-991.

Ireland, Doug. 2012. “Salem man sentenced on child porn charges.” The Eagle Tribune (Lawrence, MA), Sept. 20.

Jacobs, David and Jason T. Carmichael. 2001. The political sociology of the death penalty: A pooled time-series analysis. American Sociological Review 67: 109-131.

118

Jacobs, David and Richard Kleban. 2003. Political institutions, minorities, and punishment: A pooled cross-national analysis of imprisonment rates. Social Forces 82: 725-755.

Janus, Eric S. 2006. Failure to protect: America's sexual predator laws and the rise of the preventive state. Ithaca, NY: Cornell University Press.

Jenkins, Philip. 1998. Moral Panic: Changing concepts of the child molester in Modern America. New Haven, CT: Yale University Press.

Johnson, Brian D. 2003. Racial and ethnic disparities in sentencing departures across modes of conviction. Criminology 41: 449-490.

--. 2005. Contextual disparities in guidelines departures: Courtroom social contexts, guidelines compliance, and extralegal disparities in criminal sentencing. Criminology 43: 761-796.

--. 2006. The multilevel context of criminal sentencing: Integrating judge- and county-level influences. Criminology 44: 259-298.

--. 2010. Multilevel analysis in the study of crime and justice. In A. R. Piquero and D. Weisburd (Eds.) Handbook of Quantitative Criminology. New York: Springer.

Johnson, Brian D., Jeffrey T. Ulmer, and John H. Kramer. 2008. The social context of guidelines circumvention: The case of federal district courts. Criminology 46: 737-783.

Kautt, Paula. 2002. Location, location, location: Interdistrict and intercircuit variation in sentencing outcomes for federal drug-trafficking offenses. Justice Quarterly 19, 633-671.

Kingsnorth, Rodney, John Lopez, Jennifer Wentworth and Debra Cummings. 1998. Adult sexual assault: The role of racial/ethnic composition in prosecution and sentencing. Journal of Criminal Justice 26: 359-371.

Kleck, Gary. 1981. Racial discrimination in criminal sentencing: A critical evaluation of the evidence with additional evidence on the death penalty. American Sociological Review 46: 783-805.

Kramer, John H. and Jeffrey T. Ulmer. 1996. Sentencing disparity and departures from guidelines. Justice Quarterly 13: 401-425.

---. 2002. Downward departures for serious violent offenders: Local court “corrections” to Pennsylvania’s sentencing guidelines. Criminology 40: 897-931.

LaFree, Gary, D. 1980. The effect of sexual stratification by race on official reactions to rape. American Sociological Review 45: 842-854.

Lalumiére, Martin L. and Vernon L. Quinsey. 1994. The discriminability of rapists from non- sex offenders using phallometric measures. Criminal Justice and Behavior 21: 150-175.

119

Laws, D. Richard and Tony Ward. 2011. Desistance from sex offending: Alternatives to throwing away the keys. New York: Guilford Press.

Leon, Chrysanthi S. 2011. Sex fiends, perverts and pedophiles: Understanding sex crime policy in America. New York: New York University Press.

Letourneau, Elizabeth J., Dipankar Bandyopadhyay, Debajyoti Sinha, and Kevin Armstrong. 2009. Effects of sex offender registration policies on juvenile justice decision making. Sex Abuse: A Journal of Research and Treatment 21: 149-165.

Levenson, Jill. 2009. Sex offender residence restrictions. In R. G. Wright (Ed.) Sex offender laws: Failed policies, new directions (pp. 267-290). New York: Springfield Publishing Company, Inc.

Levenson, Jill S., Yolanda N. Brannon, Timothy Fortney, and Juanita Baker. Public perceptions about sex offenders and community protection policies. Analyses of Social Issues and Public Policy 7: 1-25.

Levenson, Jill S. and Leo P. Cotter. 2005a. The impact of sex offender residence restrictions: 1,000 feet from danger or one step from absurd? International Journal of Offender Therapy and Comparative Criminology 49: 168-178.

---. 2005b. The effect of Megan’s Law on sex offender reintegration. Journal of Contemporary Criminal Justice 21: 49-66.

Levenson, Jill, Elizabeth Letourneau, Kevin Armstrong, and Kristen M. Zgoba. 2010. Failure to register: Is it associated with recidivism? Justice Quarterly 27: 305-331.

Lindsey, Ralph E., Alfred F. Carlozzi, and Gregory T. Eells. Differences in the dispositional empathy of juvenile sex offenders, non-sex-delinquent juveniles, and nondelinquent juveniles. Journal of Interpersonal Violence 16: 510-522.

Liska, Allen E. 1992. Social threat and social control. Albany, NY: State University of New York Press.

Long, J. Scott. 2009. Group comparisons in logit and probit using predicted probabilities. Unpublished paper. Accessed March 3, 2013 from http://www.indiana.edu/~jslsoc/files_research/groupdif/groupwithprobabilities/groups-with- prob-2009-06-25.pdf

Lucken, Karol and William Bales. 2008. Florida’s sexually violent predator program: An examination of risk and civil commitment eligibility. Crime and Delinquency 54: 95-127.

Lussier, Patrick, Martin Bouchard, and Eric Beauregard. 2011. Patterns of criminal achievement in sexual offending: Unraveling the “successful” offender. Journal of Criminal Justice39: 433-444.

120

Lussier, Patrick, Marc LeBlanc, and jean Proulx. 2005. The generality of criminal behavior: A confirmatory factor analysis of the criminal activity of sex offenders in adulthood. Journal of Criminal Justice 33: 177-189.

Mancini, Christina. 2013. Examining factors that predict public concern about the collateral consequences of sex crime police. Criminal Justice Policy Review (Online first) doi: 10.1177/0887403412473475

Mancini, Christina, J.C. Barnes, and Daniel P. Mears. 2013. It varies from state to state: An examination of sex crime laws nationally. Criminal Justice Policy Review 24: 166-198.

Mancini, Christina and Daniel P. Mears. 2010. To execute or not to execute? Examining public support for capital punishment of sex offenders. Journal of Criminal Justice 38: 959-968.

Mancini, Christina, Ryan T. Shields, Daniel P. Mears, and Kevin M. Beaver. 2010. Sex Offender Residence Restriction Laws: Parental Perceptions and Public Policy. Journal of Criminal Justice 38: 1022-1030.

Mann, Coramae R. 1993. Unequal justice: A question of color. Bloomington: Indiana University Press.

Martinson, Robert. 1974. What works? Questions and answers about prison reform. Public Interest 35: 22-56.

Maxwell, Christopher D., Amanda L. Robinson, and Lori Post. 2003. The impact of race on the adjudication of sexual assault and other violent crimes. Journal of Criminal Justice 31: 523- 538.

Mears, Daniel P. 1998. The sociology of sentencing: Reconceptualizing decisionmaking processes and outcomes. Law and Society Review 32: 667-724.

Meloy, J. Reid. 2000. The nature and dynamics of sexual homicide: An integrative review. Aggression and Violent Behavior 5: 1-22.

Mitchell, Ojmarrh. 2005. A meta-analysis of race and sentencing research: Explaining the inconsistencies. Journal of Quantitative Criminology 21: 439-466.

National Center for Missing and Exploited Children. 2012. Registered sex offenders in the United States and its territories per 100,000. Alexandria, VA: Author.

Newman, Bernie S. 2007. College students’ attitudes about lesbians: What difference does 16 years make? Journal of Homosexuality 52: 249-265.

Newport, Frank. 2012. Half of Americans support legal gay marriage. Gallup.

121

Nhan, Jonathan, Katherin Polzer, and Jennifer Ferguson. 2012. “More dangerous than hitmen”: Judicial perceptions of sexual offenders. International Journal of Criminology and Sociological Theory 5: 823-836.

Padgett, Kathy G., William D. Bales, and Thomas G. Blomberg. 2006. Under surveillance: An empirical test of the effectiveness and consequences of electronic monitoring. Criminology and Public Policy 5: 61-92.

Paternoster, Raymond, Robert Brame, Paul Mazerolle, and Alex Piquero. 1998. Using the correct statistical test for the equality of regression coefficients. Criminology 36: 859-866.

Payne, Brian K. and Matthew T. DeMichele. 2010. Electronic supervision for sex offenders: Implications for work load, supervision goals, versatility, and policymaking. Journal of Criminal Justice 38: 276-281.

Pew Center on the States. 2012. Time served: The high cost, low return of longer prison terms. Washington, DC: Author.

Poe, Edgar A. 1846/1975. Complete Tales and Poems. New York: Knopf Doubleday.

Pratt, Travis. 2009. Addicted to Incarceration. Thousand Oaks, CA: Sage.

Pryor, Douglas W. 1996. Unspeakable acts: Why men sexually abuse children. New York: New York University Press.

Quinn, James F., Craig J. Forsyth and Carla Mullen-Quinn. 2004. Societal reaction to sex offenders: a review of the origins and myths surrounding their crimes and treatment amenability. Deviant Behavior 25: 215-232.

Quinsey, Vernon L., Terry C. Chaplin, and Douglas Upfold. 1984. Sexual arousal to nonsexual violence and sadomasochistic themes among rapists and non-sex-offenders. Journal of Consulting and Clinical Psychology52: 651-657.

Roberts, Julian V., Loretta J. Stalans, David Indermaur, and Mike Hough. 2003. Penal Populism and Public Opinion: Lessons from Five Countries. New York: Oxford University Press.

Rome, Dennis. 2004. Black demons. The media’s depiction of the African American male criminal stereotype.

Rotman, Edgardo. 1990. Beyond punishment: A new view on the rehabilitation of criminal offenders. Westport, CT: Greenwood Press, Inc.

Russell, Kathryn. 1989. The color of crime: Racial hoaxes, White fear, Black protectionism, police harassment, and other macroaggressions. New York: New York University Press.

122

Sample, Lisa L. and Timothy M. Bray. (2003). Predicting sex offending from criminal offense history. Criminology and Public Policy 3: 59-82.

---. 2006. Are sex offenders different? An examination of re-arrest patterns. Criminal Justice Policy Review 17: 83-102.

Sample, Lisa L. and Mary K. Evans. 2009. Sex offender registration and community notification. In R. G. Wright (Ed.) Sex offender laws: Failed policies, new directions (pp. 211-242). New York: Springfield Publishing Company, Inc.

Sample, Lisa L. and Colleen Kadleck. 2008. “Sex offender laws: Legislators’ accounts of the need for policy. Criminal Justice Policy Review 19: 40-62

Sampson, Robert J., and John H. Laub. 1993. Crime in the making: Pathways and turning points through life. Cambridge, MA: Harvard University Press.

Scheela, Rochelle A. 2001. Sex offender treatment: Therapists’ experiences and perceptions. Issues in Mental Health Nursing 22: 749-767.

Schmuttermaier, John and Arthur Veno. 1999. Counselors’ beliefs about ritual abuse: An Australian study. Journal of Child Sexual Abuse 8: 45-63.

Seto, Michael. 2005. Is more better? Combining actuarial risk scales to predict recidivism among adult sex offenders. Psychological Assessment 17: 156-167.

Skogan, Wesley G. 1990. Disorder and decline: Crime and the spiral of decay in the American neighborhoods. Berkley, CA: University of California Press.

Sorenson Jonathan R. and Don Stemen. 2002. The effect of state sentencing policies on incarceration rates. Crime and Delinquency 48: 456-475.

Sorenson, Jonathan R. and Donald H. Wallace. 1995. Capital punishment in Missouri: Examining the issue of racial disparity. Behavioral Sciences and the Law 13: 61-80.

Spohn, Cassia. 1994. Crime and the social control of blacks: Offender/victim race and the sentencing of violent offenders. In G.S. Bridges and M.A. Myers (eds.) Inequality, crime, and social control. Boulder, CO: Westview Press.

---. 2000. Thirty years of sentencing reform: The quest for a racially neutral sentencing process. Criminal Justice 2000: Policies, process, and decisions of the criminal justice system. Washington, D.C. U.S. Department of Justice.

---. 2009. How do judges decide? The search for fairness and justice in punishment (2nd edition). Thousand Oaks, CA: Sage.

123

Spohn, Cassia and Robert Fornango. 2009. U.S. Attorneys and substantial assistance departures: Testing for interprosecutor disparity. Criminology 47: 813-845.

Spohn, Cassia and J. Spears. 1996. The effect of offender and victim characteristics on sexual assault case processing decisions. Justice Quarterly 13: 649-679.

Sreenivasan, Shoba, Linda E. Weinberger, Allen Frances, and Sarah Cusworth-Walker. 2010. Alice in actuarial-land: Through the looking glass of changing Static-99 norms. Journal of the American Academy of Psychiatry and the Law 38: 400-406.

Steffensmeier, Darrell. 1980. Assessing the impact of the women’s movement on sex-based differences in the handling of adult criminal defendants. Crime and Delinquency 26: 344- 357.

Steffensmeier, Darrell and Stephen DeMuth. 2000. Ethnicity and sentencing outcomes in U.S. Federal Courts: Who is punished more harshly? American Sociological Review 65: 705-729.

---.2001. Ethnicity and judges’ sentencing decisions: Hispanic-black-white comparisons. Criminology 39: 145-178.

Steffensmeier, Darrell, Jeffrey T. Ulmer, and John H. Kramer. 1998. The interaction of race, gender, and age in criminal sentencing: The punishment cost of being you, black, and male. Criminology 36: 763-798.

Stemen, Don and Andres F. Rengifo. 2011. Policies and imprisonment: the impact of structured sentencing and determinate sentencing on state incarceration rates, 1978–2004. Justice Quarterly 28: 174-201.

Terry, Karen J. 2005. Sex offenses and offenders: Theory, practice and policy. Belmont, CA: Wadsworth.

Terry, Karen J. and Alissa R. Ackerman. 2009. A brief history of major sex offender laws. In R. G. Wright (Ed.) Sex offender laws: Failed policies, new directions (pp. 65-98). New York: Springfield Publishing Company, Inc.

Terry, Karen J. and Edward W. Mitchell. 2001. Motivation in sex offender treatment efficacy: Leading a horse to water and making it drink. International Journal of Offender Therapy and Comparative Criminology 45: 663-672.

Tewksbury, Richard. 2005. Collateral consequences of sex offender registration. Journal of Contemporary Criminal Justice 21: 67-81.

Tewksbury, Richard and Matthew B. Lees. 2007. Perceptions of punishment: How registered sex offenders view registries. Crime and Delinquency 53: 380-407.

124

Thornton, David. 2006. Age and sexual recidivism: A variable connection. Sexual Abuse: A Journal of Research and Treatment 18: 123-135.

Travis, Jeremy. 2005. But they all come back: Facing the challenges of prisoner reentry. Washington, D.C.: Urban Institute Press.

Tucker, Linda. 2003. Blackballed: Basketball and representations of the black male athlete. American Behavioral Scientist 47: 306-328.

Ulmer, Jeffery T. 1997. The social worlds of sentencing: Court communities under sentencing guidelines. Albany, NY: State University of New York Press.

Ulmer, Jeffery T., and Brian D. Johnson. 2004. Sentencing in context: A multilevel analysis. Criminology 42: 137-177.

Ulmer, Jeffery T. and John Kramer. 1998. The use and transformation of formal decision-making criteria: Sentencing guidelines, organization contexts, and case processing strategies. Social Problems 45: 248-267.

Ulmer, Jeffrey T., Megan C. Kurlychek, and John H. Kramer. 2007. Prosecutorial discretion and the imposition of mandatory minimum sentences. Journal of Research in Crime and Delinquency 44: 427-458.

Walker, Samuel, Cassia Spohn, and Miriam DeLone. 2011. The color of justice: Race, ethnicity, and crime in America. Belmont, CA: Wadsworth.

Wang, Xia and Daniel P. Mears. 2010. A multilevel test of minority threat effects on sentencing. Journal of Quantitative Criminology 26: 191-215.

Wang, Xia, Daniel P. Mears, Cassia Spohn, and Lisa Dario. Assessing the differential effect of race and ethnicity on sentence outcomes under difference sentencing systems. Crime and Delinquency 59: 87-114.

Ward, Tony, Stephen M. Hudson, and William L. Marshall. 1996. Attachment style in sex offenders: A preliminary study. The Journal of Sex Research 33: 17-26.

Warren, Patricia, Ted Chiricos, and William Bales. 2011. The imprisonment penalty for young Black and Hispanic males: A crime specific-analysis. Journal of Research in Crime and Delinquency.

Webster, Cheryl M., Rosemary Gartner, and Anthony N. Doob. 2006. Results by design: The artefactual construction of high recidivism rates for sex offenders. Canadian Journal of Criminology and Criminal Justice 48: 79-93.

125

Weidner, Robert R., Richard Frase, and Iain Pardoe. 2004. Explaining sentence severity in large urban counties: a multilevel analysis of contextual and case-level factors. The Prison Journal 84: 184-207.

Wetterling, Patricia and Richard G. Wright. 2009. The politics of sex offender policies: An interview with Patricia Wetterling. In R. G. Wright (Ed.) Sex offender laws: Failed policies new directions. New York: Springer Publishing Company, Inc.

Wilbanks, William. 1987. The myth of a racist criminal justice system. Pacific Grove, CA: Brooks/Cole.

Wilkens, William W. and John R. Steer. 1990. Relevant conduct: The cornerstone of the federal sentencing guidelines. South Carolina Law Review 41: 495-531.

Wolfgang, Marvin and Marc Riedel. 1973. Race, judicial discretion and the death penalty. The ANNALS of the American Academy of Political and Social Science 407: 119-133.

Wood, Jennifer. 2005. In whose name? Crime victim policy and the punishing power of protection. NWSA 17: 1-17.

Yates, Riley. 2011. Woman gets jail for sex with boy: Jennifer Barbarics of Bethlehem admitted assaulting 15-year-old. The Morning Call (Allentown, PA). 30 April.

Zatz, Marjorie. 1987. The changing forms of racial/ethnic biases in sentencing. Journal of Research in Crime and Delinquency 24: 69-92.

Zgoba, Kristen M., Jill Levenson, and Tracy McKee. 2009. Examining the impact of sex offender residence restrictions on housing availability. Criminal Justice Policy Review 20: 91-110.

Zilney, Laura J. and Lisa A. Zilney. 2009. Perverts and predators: The making of sex offender laws. Lanham, MD: Rowman and Littlefield Publishers.

Zimring, Frank E. and Gordon Hawkins. 1973. Deterrence: The legal threat in crime control. Chicago: University of Chicago Press.

Zimring, Franklin E., Alex R. Piquero, and Wesley G. Jennings. 2007. Sexual delinquency in Racine: Does early sex offending predict later sex offending in youth and young adulthood? Criminology and Public Policy 6: 507-534.

126

BIOGRAPHICAL SKETCH

Ryan T. Shields

Ryan T. Shields is a doctoral candidate in Criminology at Florida State University. In the spring of 2013, Ryan became an assistant scientist in the Department of Mental Health at Johns

Hopkins University’s Bloomberg School of Public Health. Originally from Baltimore, MD, Ryan completed his bachelor’s degree in criminal justice at the University of Baltimore in 2005. He continued his education at University of Baltimore, and in 2008, he completed his master’s degree in criminal justice. While completing his master’s degree, Ryan was also the program manager for the Maryland Violent Death Reporting System at the Department of Health and

Mental Hygiene in Baltimore. In August of 2008, Ryan enrolled in the doctoral program at the

College of Criminology and Criminal Justice at Florida State University. Ryan was the recipient of the 2011 Joe Harris Memorial Teaching Fellowship and the 2012 Florida State University

Outstanding Teaching Assistant Award.

Ryan’s research interests are centered on the intersection of criminology and public health. Specifically, he is interested in applying public health principles to the study of crime and deviance. His work primarily focuses on sex offender issues, such as punishment and offender management, but he is also interested in homicide, suicide, and crime prevention.

127