Article

Race and Justice

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The Joint Effects of Race, ª The Author(s) 2017
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DOI: 10.1177/2153368717739676

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Sentence Length Decisions

Tina L. Freiburger1
and Alyssa M. Sheeran1

Abstract
The current study adds to the literature examining the effects of race, ethnicity,
gender, and age on sentencing decisions. The results indicate that Black and male
defendants were more likely to be incarcerated in jail as opposed to receiving a
probation sentence than White and female defendants. When race, ethnicity, and
gender interactions were considered, it appeared that the race effect was driven by
Black males’ reduced likelihood to receive probation as opposed to jail. Black females
were the least likely to be jailed. Age interactions revealed that being young dis-
advantaged Black males but advantaged other groups. The decision to incarcerate a
defendant in jail versus prison was not significantly influenced by race, ethnicity, or
gender. When sentence length was examined, Black males received significantly
shorter jail sentences than all groups except Black females. When age was considered,
Hispanic defendants 30–39 received longer jail sentences than almost every group.

Keywords
sentencing, focal concerns, racial disparities, gender disparities

One of the most concerning issues in the criminal justice system is the possibility that
disparities based on extralegal factors exist in the criminal sentencing of defendants.
Especially concerning is the impact that race, ethnicity, and gender have on punish-
ment decisions. Many studies have found that race significantly impacts sentencing

1
Department of Criminal Justice, University of Wisconsin–Milwaukee, Milwaukee, WI, USA

Corresponding Author:
Tina L. Freiburger, Department of Criminal Justice, University of Wisconsin–Milwaukee, P.O. Box 786,
1119 Enderis Hall, Milwaukee, WI 53201, USA.
Email: freiburg@uwm.edu
2 Race and Justice XX(X)

decisions, with Black defendants receiving harsher sentences than White defendants
(for reviews see Chiricos & Crawford, 1995; Kramer & Steffensmeier, 1993; Mitchell,
2005; Steffensmeier, Ulmer, & Kramer, 1998; Zatz, 2000). Despite some mixed
findings, studies that included ethnicity have mostly found that Hispanic defendants
were also sentenced more harshly than White defendants (Engen & Gainey, 2000;
Holleran & Spohn, 2004; Jordan & Freiburger, 2015; Spohn & Holleran, 2000;
Steffensmeier & Demuth, 2000, 2001; Ulmer & Johnson, 2004).
Recent research into the fairness of the court has recognized that race and ethnicity
have different effects on the sentencing of men and women. This research recognizes
that the experiences of Black, Hispanic, and White men are different than that of
Black, Hispanic, and White women (e.g., Doerner & Demuth, 2014; Freiburger &
Hilinski, 2013; Jordan & Freiburger, 2015; Steffensmeier et al., 1998). While this
research has helped to develop a better understanding of how race and ethnicity
differently affect men and women, the results have been inconsistent. Some of these
studies have found that White females are treated more leniently than minority
females (e.g., Crawford, 2000; Steffensmeier et al., 1998), while others found that
Black females received the most lenient treatment (Spohn & Beichner, 2000; Stef-
fensmeier & Demuth, 2006). Additional research considering race, ethnicity, gender,
and age has found that young Black males are the most disadvantaged (e.g., Spohn &
Holleran, 2000; Warren, Chiricos, & Bales, 2012).
Additional studies conducted by Spohn and colleagues (Harrington & Spohn,
2007; Holleran & Spohn, 2004) have challenged the dichotomous measurement of
incarceration. This research recognizes that jail and prison are qualitatively differ-
ent, and this difference should be recognized in quantitative research. Several
studies have followed this line of inquiry and have examined the effect of gender,
race, and ethnicity on the decision to sentence a defendant to probation, jail, or
prison separately. These studies have indicated that the impact of gender, race, and
ethnicity was different for the decision to sentence a defendant to jail or prison
(Freiburger & Hilinski, 2013; Harrington & Spohn, 2007; Holleran & Spohn, 2004;
Warren et al., 2012; Wooldredge, 2012). Therefore, it was important to distinguish
between sentencing decisions to jail and prison to truly understand where disparities
exist. The current study extends this body of research examining the impact of race,
ethnicity, gender, and age on judges’ decisions to sentence defendants to community
sanctions, jail, or prison.

Theoretical Perspective
The focal concerns perspective, developed by Steffensmeier, Ulmer, and Kramer
(1998) provides an explanation as to how legal and extralegal variables impact sen-
tencing. It argues that judges rely on the three focal concerns of blameworthiness,
community protection, and practical constraints when making punishment decisions.
When assessing blameworthiness, judges consider factors such as severity of the
offense, criminal history, and the defendant’s responsibility in the crime. Protection of
the community relates to similar concepts as blameworthiness but also emphasizes the
Freiburger and Sheeran 3

importance of incapacitation in preventing a defendant from reoffending. Finally,

practical constraints consider the individual and organizational costs of punishing a
defendant. Individual costs can include the impact that the punishment will have on
the defendant’s family and community, while the organizational costs consider costs
to the system, such as available jail space (Steffensmeier et al., 1998).
Judges, however, seldom have adequate time and information to adequately
assess these three concerns, so they rely on a perceptual shorthand to reduce
uncertainty in making these decisions (Hawkins, 1981; Steffensmeier et al., 1998).
This perceptual shorthand relates extralegal factors such as race, ethnicity, gender,
and age to personal beliefs and stereotypes in the assessment of the three focal
concerns. This can lead to defendants who possess the demographics of the ste-
reotypical “dangerous and chronic offender” to be sentenced more harshly. Younger
defendants fit the profile of being more dangerous, and their incarceration can be
viewed as posing fewer individual costs than older defendants. Similarly, females
are often considered to be less blameworthy and less dangerous than males
(Steffensmeier, Kramer, & Streifel, 1993; Steffensmeier et al., 1998). Additional
research has further found that judges are more concerned about the social costs of
incarcerating females because they are often the main caretaker of children (see
Daly, 1987a, 1987b; Freiburger, 2010, 2011). Minority males, especially Black
males, also match the stereotype of being dangerous and blameworthy. Mainly,
therefore, the perceptual shorthand works to the disadvantage of young Black men
(Spohn & Holleran, 2000; Steffensmeier & Demuth, 2006).

Prior Research
Race, ethnicity, and sentence severity. Research investigating the effects of racial dis-
parity in the sentencing decision has most commonly found that Black defendants
were treated more harshly when compared to their White counterparts (for reviews see
Chiricos & Crawford, 1995; Kramer & Steffensmeier, 1993; Mitchell, 2005; Stef-
fensmeier et al., 1998; Zatz, 2000). Prior research that has included Hispanic defen-
dants is more mixed. Several studies have found that Black and Hispanic defendants
were treated similarly, but both had a higher likelihood of incarceration than White
defendants (Doerner & Demuth, 2010; Spohn & Beichner, 2000; Spohn & Holleran,
2000; Steffensmeier & Demuth, 2000, 2001, 2006). Other research comparing the
treatment of Black and Hispanic defendants has found that Hispanic defendants were
treated more harshly than Black and White defendants (Brennan & Spohn, 2008;
Bushway & Piehl, 2001; Doerner & Demuth, 2014; Holleran & Spohn, 2004).
Additional studies have concluded that Black defendants were actually treated more
severely than Hispanic or White defendants (e.g., Kutateladze, Andiloro, Johnson, &
Spohn, 2014; Spohn & Beichner, 2000).
There is further evidence that the treatment of Hispanic defendants might vary by
jurisdiction. For example, Spohn and Holleran (2000) examined the effects of race and
ethnicity in Chicago, Miami, and Kansas City. Black and Hispanic defendants had
significantly higher odds of incarceration than White defendants in Chicago. In
4 Race and Justice XX(X)

Miami, Hispanic defendants had significantly higher odds of incarceration than White
defendants, but no difference was found in odds of incarceration for White and Black
defendants.
The effect of race and ethnicity on the sentence length decision has produced mixed
findings. For race, some researchers have found that Black defendants are incarcerated for
longer periods than White defendants (Feldmeyer & Ulmer, 2011; Spohn & Holleran,
2000; Steffensmeier et al., 1998). Steffensmeier and Demuth (2006), however, did not
find a significant difference between the sentence lengths that White and Black defen-
dants received but found that Hispanic defendants received significantly longer sentences
than White defendants. Contrary to their findings, Feldmeyer and Ulmer (2011) found
that in federal court White and Hispanic defendants received sentences that were similar
in length. Spohn and Holleran (2000) did not find a significant difference across all three
groups (Hispanic, White, and Black defendants) in the length of the sentence defendants
received within the three jurisdictions examined (Chicago, Miami, and Kansas City).
Recent research has also separately examined lengths of sentences for jail and
prison. Using the State Court Processing Statistics data, Wang, Mears, and Spohn
(2013) found that race did not impact the length of sentence to either jail or prison
regardless of whether a state had nonguidelines, voluntary guidelines, or presumptive
sentencing guidelines. Freiburger and Hilinski (2013) similarly revealed no race
differences in length of incarceration term in either jail or prison for felony defendants
in a Midwestern state.

Gender and sentencing severity. A vast amount of research has been conducted on the
effects that gender has on judicial decisions. Within this literature, the preponderance of
studies has found that females were treated more leniently than males, with females
having lower odds of being incarcerated (e.g., Bloch, Engen, & Parrotta, 2014; Doerner &
Demuth, 2014; Freiburger, 2010; Spohn & Beichner, 2000). When looking at distinct
sentence types, research has indicated that females were more likely to receive probation
as opposed to jail than male defendants (Freiburger & Hilinski, 2013; Harrington &
Spohn, 2007; Holleran & Spohn, 2004). Variations arose, however, when examining the
decision to sentence a defendant to prison, as opposed to jail. Harrington and Spohn
(2007) found that males were more likely to receive a prison sentence than females;
however, other studies have found no gender effect when deciding a sentence between
prison and jail (Freiburger & Hilinski, 2013; Holleran & Spohn, 2004). Research
examining sentence length and gender also have been mixed (Daly & Bordt, 1995). Some
studies have found that females received significantly shorter sentences than males
(Albonetti, 1997; Bushway & Piehl, 2001; Farnworth & Teske, 1995; Huang, Finn,
Ruback, & Friedmann, 1996; Jeffries, Fletcher, & Newbold, 2003; Mustard, 2001;
Orsagh, 1985; Rodriguez, Curry, & Lee, 2006; Ulmer & Kramer, 1996). Others, however,
have found that males and females do not receive significantly different sentence lengths
(Crew, 1991; Nobling, Spohn, & DeLone, 1998; Steffensmeier et al., 1993).

Interaction of Race, ethnicity, gender, and age on sentence severity. Recent studies have
begun to examine the interaction that race and gender have on the likelihood of
Freiburger and Sheeran 5

incarceration. Analyzing the interaction effects of race and gender allows researchers to
compare specific groups and to offer more comprehensive results. This research
recognizes that being Black or Hispanic has a different impact on males and females and
the stereotypes and focal concerns that are incited by race and ethnicity vary by gender.
This research has found that Black males were given sentences more severe than
their counterparts. Particularly, Black males were more likely to be incarcerated than
White females, White males, and Black females (Blumstein, 1982; Freiburger &
Hilinski, 2013; Harrington & Spohn, 2007). Research examining the effects of race and
females specifically have found differences in the likelihood of incarceration. Several
studies have determined that White females have lower odds of incarceration than Black
females (Steffensmeier et al., 1998), while other research has found the opposite effect,
with Black females having lower odds of incarceration (Doerner & Demuth, 2014).
Others have found no significant difference between White and Black females in the
likelihood of incarceration (Harrington & Spohn, 2007; Spohn & Beichner, 2000).
When age is also included, the results become even more complex. Several studies
have found that the effects of age are dependent on race, ethnicity, and gender. In
Pennsylvania, Steffensmeier et al. (1998) found that offenders under 20 and over 50 were
the least likely to be incarcerated. Those aged 21–29 were the most likely to be incar-
cerated, and Black defendants were the most negatively impacted by being 21–29. Other
studies have found that Black and Hispanic young males were more likely to be incar-
cerated than their White counterparts (Kramer & Ulmer, 2009; Spohn & Holleran, 2000;
Warren et al., 2012). Freiburger and Hilinski (2013) found that young White males and
females were more likely to get probation versus jail, whereas Black males were more
likely to get jail instead of probation. Black males were only treated more leniently than
other groups if they were older and the decision was between jail and prison.

Current Study
Mixed findings in the previous research of the impacts of race, ethnicity, gender, and
age on sentencing decisions indicate a need for further inquiries. This study adds to
this field of research by examining the impact of these factors on the likelihood of
being sentenced to probation, jail, or prison in Milwaukee County, Wisconsin. The
current study first examined the individual impacts of race, ethnicity, gender, and age
on the decision to sentence defendants to probation, jail, or prison. It then examined
interactions of race, ethnicity, and gender on this decision point, followed by a
reexamination of the models to examine the interaction of these variables with age.
The next set of analyses examined these same impacts on the sentence length decision,
modeling sentences to jail and prison separately.

Method
The current study examined the impact of race, ethnicity, age, and gender on the
likelihood of incarceration in Milwaukee County, Wisconsin. The data collected
contains information for all individuals who were sentenced in the county during
6 Race and Justice XX(X)

2009. Data were retrieved from the Milwaukee County District Attorney’s Office as
well as court dockets from the Wisconsin Circuit Court Access. The original data set
yielded 10,682 cases. Cases were only included for those individuals who had a
current charge of either a felony or a misdemeanor. Those with an ordinance violation
were excluded (n ¼ 500). Cases that were still open were also removed from the data
set (n ¼ 15). Because this study was interested in sentencing decisions, cases that were
dismissed, deferred, extradited, acquitted, or found not guilty were excluded (n ¼
4,198). Cases in which a defendant’s race was listed as “other” were also removed due
to the small number (n ¼ 62). Therefore, the final data set contained 5,907 cases.

Study Site
Milwaukee County is the most populous in the state of Wisconsin with an estimated
population of 951,448 residents. Of those residents, the City of Milwaukee accounts
for about 595,047 individuals. The majority of the county is White, with most of the
White population residing in the suburban areas and the majority of the Black and
Hispanic population living in the City of Milwaukee (U.S. Census Bureau, 2010).
Milwaukee is often ranked as the most segregated city in the country (Denvir, 2011,
March 29). Similar to other urban areas, the majority of crime occurs within the city.

Dependent Variables
The current study follows research similar to Harrington and Spohn (2007) and
Freiburger and Hilinski (2013) with utilizing a trichotomous-dependent variable,
distinguishing between defendants who were sentenced to probation (n ¼ 1,967), jail
(n ¼ 2,983), and prison (n ¼ 957). Jail was treated as the reference variable. Jail was
chosen as the reference variable to better reflect the two-stage sentencing decision, in
which judges first decide whether to incarcerate an individual and then decide whether
to incarcerate someone in jail or prison (see Harrington & Spohn, 2007).
Sentence length was modeled separately for jail and prison. Both were measured in
months as continuous variables. For both models, we followed prior research and used
the natural log of the dependent variable. In addition to correcting skewness caused by
a few defendants receiving long sentences, the natural log provided a better repre-
sentation of increases in sentence length for short and long sentences (e.g., Bushway &
Piehl, 2001; Johnson, 2006; Johnson & Betsinger, 2009; Wooldredge, 2007). As
discussed by Johnson (2006), the impact that the addition of more time has on a
defendant varies by the length of the original sentence. Two months added to a
2-month sentence would result in a sentence that was double the length, yet an added
2 months to a 9-month sentence would only result in a 19% increase in length.1

Independent Variables
The main variables of interest for this study were race, ethnicity, gender, and age.
Three dichotomous variables were created for race and ethnicity; they included
Freiburger and Sheeran 7

Black (¼1), White (¼1), and Hispanic (¼1). White was left out of the analysis as the
reference variable. Gender was coded as a dichotomous variable as female ¼ 0 and
male ¼ 1. Age was included as a continuous variable in the models examining the
individual effects of race, ethnicity, gender, and age. Because prior research has found
that age has a curvilinear effect on sentencing decisions (e.g., Steffensmeier et al.,
1998), a quadratic term for age was also included in these analyses. When examining
race, ethnicity, gender, and age interactions, age was examined as the following
categories: 17–29, 30–39, and 40 and over. These categories have been used in pre-
vious research (e.g., Freiburger & Hilinski, 2013; Harrington & Spohn, 2007) but are
not as precise as categories utilized in other research (Steffensmeier et al., 1998) due
to sample sizes in the categories becoming too small.
Additional legal variables for offense severity, offense type, and prior record,
which have been found to be relevant to sentencing decisions in prior research (e.g.,
Spohn & Holleran, 2000; Steffensmeier & Demuth, 2006; Steffensmeier et al., 1993,
1998), were included in the analysis. Dichotomous variables were created for property
offenses, personal offenses, drug offenses, public order crimes, public safety crimes,
and other offenses. The variable for property offenses was left out of the analysis as
the reference variable. Offense severity was calculated using Roggensack’s (2016)
calculation for offense severity in Wisconsin. This numerical score was constructed
by assigning a numerical score for each class of felony and misdemeanor class while
taking into account the maximum sentence for each. The possible scores ranged from
20 (Class A Felony) to 0.0208 (Class C Misdemeanor). The present study also con-
trolled for the number of prior misdemeanor convictions, the number of prior felony
convictions, and the number of current convictions using continuous variables.
Because research has also found that pretrial release affects sentencing decisions
(e.g., Freiburger & Hilinski, 2013), a dichotomous variable was also created to dis-
tinguish between whether an individual was incarcerated at sentencing (coded 1) or
released prior to sentencing (coded 0). Trial represented those who were found guilty
at trial (1) versus those who plead guilty (0), as mode of conviction has also been
found to impact sentencing decisions (e.g., Steffensmeier et al., 1998). Additional
research has found that attorney type has been found to impact sentencing outcomes
(e.g., Dixon, 1995); therefore, a variable for the type of attorney was also included
with 0 indicating those represented by a public defender and 1 indicating those with a
private attorney. To correct for selection effects, a Heckman two-step correction was
created and included in analyses for the logged jail and sentence length decisions
(Bushway, Johnson, & Slocum, 2007; Heckman, 1979).

Results
Table 1 presents the descriptive statistics for all independent variables delineated by
sentence outcome. When comparing across types of punishments, the average age for
all groups was around 30 years. The race and ethnicity distribution were also similar
across the three punishments, with the majority being Black, followed by White,
and Hispanic. The most common sentence for all three groups was jail. Males
8 Race and Justice XX(X)

Table 1. Descriptive Statistics.

Probationa Jailb Prisonc

N (mean) % (SD) N (mean) % (SD) N (mean) % (SD)

Individual characteristics
Age (29.66) (11.08) (30.27) (11.03) (29.87) (10.58)
Race
White 588 29.9 710 23.8 191 20.0
Black 1,252 63.7 2,105 70.6 713 74.5
Hispanic 127 6.4 168 5.6 53 5.5
Gender
Male 1,620 82.4 2,658 89.1 878 91.7
Female 347 17.6 325 10.9 79 8.3
Case characteristics
Prior felonies (0.57) (1.22) (1.10) (1.74) (1.80) (2.25)
Prior misdemeanors (2.04) (3.24) (3.41) (4.35) (3.85) (4.22)
Number of charges (3.20) (4.97) (5.29) (6.90) (5.78) (6.80)
Offense severity (.70) (1.27) (.74) (1.39) (4.61) (3.88)
Pretrial status
Not detained 1,570 79.8 1,690 10.9 113 11.8
Detained 397 20.2 2,658 89.1 844 88.2
Type of conviction charge
Property offense 441 22.4 665 22.3 168 17.6
Personal offense 386 19.6 413 13.8 335 35.0
Drug offense 492 25.0 905 30.3 221 23.1
Public order offense 399 20.3 496 16.6 75 7.8
Public safety 92 4.7 245 8.2 115 12.0
Other offense 157 8.0 259 8.7 43 4.5
Method of conviction
Guilty plea 1939 98.6 2928 98.2 886 92.6
Trial 28 1.4 55 1.8 71 7.4
Attorney type
Public defender 1493 75.9 2426 81.3 742 77.5
Non-public defender 474 24.1 557 18.7 215 22.5
Months in jail (mean) — — (3.67) (3.76) — —
Months in prison (mean) — — — — (45.77) (56.75)
Note. SD ¼ standard deviation.
a
n ¼ 1,967. bn ¼ 2,983. cn ¼ 957.

outnumbered females for all three punishments. Within genders, the largest per-
centage of females received probation followed by jail and prison; the largest per-
centage of males received jail followed by probation and prison. The average number
of prior felonies, prior misdemeanors, and current charges was highest for those
receiving prison and lowest for those receiving probation. Almost 80% of defendants
who received probation were released prior to incarceration, while only about 11% of
those receiving jail were released and 12% of those receiving prison. Drug offenses
were most common for those receiving probation and jail; for those receiving prison,
Freiburger and Sheeran 9

Table 2. Multinomial Logistic Regression Analysis Comparing Sentence of Probation and

Prison Rather Than Jail.

Probation (n ¼ 1,967) Prison (n ¼ 957)

B SE Odds B SE Odds
Offender characteristics
Black .217** .071 0.805 0.206 .129 1.228
Hispanic .028 .137 0.972 0.048 .253 0.953
Gender .431*** .090 0.650 0.120 .173 0.887
Age .014 .016 0.986 0.052 .028 1.053
Age2 .000 .000 1.000 0.001 .000 0.999
Case characteristics
Prior felonies .122*** .031 0.885 0.210*** .033 1.234
Prior misdemeanors .042** .012 0.959 0.017 .015 0.983
Number of charges .031 .066 0.969 0.617*** .080 1.853
Offense severity .037 .028 1.037 0.693*** .032 1.999
Pretrial status .996*** .073 0.369 2.166* .143 8.720
Person offense .321** .100 1.379 0.407 .157 1.502
Drug offense .271** .090 0.762 0.023 .149 0.978
Public order offense .166 .097 1.180 0.082 .186 0.921
Public safety offense .773*** .143 0.462 0.995*** .186 2.705
Other offense .008 .126 1.008 0.501* .236 0.606
Trial .039 .076 0.962 0.386** .138 0.680
Attorney type .336 .247 0.715 0.414 .281 1.513
Constant .910** .30 5.697*** .538
Nagelkerke R2 .465
*p < .05. **p < .01. ***p <.001.

the most common offense was an offense against person. The majority of defendants
pled guilty and were represented by a public defender.
To examine the direct effects of race, ethnicity, and gender, a multinomial model
was first analyzed with jail treated as the reference category.2 The results of the
multinomial model are presented in Table 2. As shown in the table, Black defendants
had significantly lower odds of receiving probation instead of jail than White
defendants. In fact, they had almost 20% less odds of receiving probation. There was
no difference in the treatment of Black and White defendants in the jail versus prison
decision. Hispanic defendants did not have significantly different odds of being
sentenced to probation over jail or prison over jail than White defendants. Gender was
significant in the probation versus jail decision, with male defendants being 35% less
likely to receive probation over jail than female defendants. Age was not a significant
predictor in the decision to sentence a defendant to probation versus jail nor in the
decision to sentence a defendant to prison versus jail.
All the legal variables in the model had the expected effects. Those with more prior
felonies had significantly lower odds of receiving probation over jail and significantly
higher odds of receiving prison over jail. Prior misdemeanors reduced the odds of
10 Race and Justice XX(X)

Table 3. Multinomial Regression Analysis Using Race/Ethnicity  Gender Interaction Terms.a

Probation Rather Than Jail (n ¼ 1,967) Prison Rather Than Jail (n ¼ 957)

B SE Odds B SE Odds
Race  Gender
Black male (reference)
White male .254** .077 1.289 .147 .137 0.864
Hispanic male .159 .135 1.172 .266 .240 0.767
Black female .482*** .109 1.619 .237 .202 1.268
White female .490** .155 1.632 .261 .240 0.771
White male (reference)
Hispanic male .095 .144 0.909 .114 .261 0.892
Black female .228 .118 1.276 .384 .226 1.468
White female .236 .161 1.267 .231 .356 0.794
Hispanic male (reference)
Black female .323* .163 1.903 .498 .300 1.647
White female .331 .197 2.049 .117 .407 0.890
White female (reference)
Black female .008 .178 0.992 .615 .385 1.848
Note. SE ¼ standard error.
a
For all interaction tables, significant relationships are only shown once. For example, Black male is treated
as the reference variable first. Significant relationships presented in that model are not presented in the
table again when the models were reanalyzed with a different reference variable.
*p < .05. **p < .01. ***p < .001.

receiving probation over prison but did not impact the decision between jail and
prison. Those who were incarcerated prior to sentencing had significantly lower odds
of receiving probation over jail and significantly greater odds of receiving prison over
jail. Defendants charged with a drug crime or a public safety crime were significantly
less likely to receive probation over jail than those charged with a property crime.
Those charged with a personal offense were more likely to receive probation over jail
than those charged with a property offense.
The only unexpected finding was for trial. Those who chose to go to trial over
pleading guilty had lower odds of receiving prison as opposed to jail. This is unex-
pected as other prior research has suggested that it is not uncommon for defendants to
receive harsher sentences for their decision to go to trial (Lynch, 1994). Research
conducted in Milwaukee County has also indicated through discussions with judges
that many judges sentence defendants who plead guilty less severely than those going
to trial because the defendant accepted responsibility for their actions and showed
remorse through their guilty pleas (Roggensack, 2016).
Table 3 presents the findings of the gender, race, and ethnicity interactions. All
independent variables were included in the models, but only race, ethnicity, and
gender coefficients are presented. Hispanic females were not included in these
analyses due to the small sample size (n ¼ 25). As shown in Table 4, White male,
Black female, and White female defendants had higher odds of receiving probation
Freiburger and Sheeran 11

Table 4. Multinomial Regression Analysis Using Race/Ethnicity  Gender  Age Interaction

Terms.

Probation Rather Than Jail (n ¼ 1967)

B SE Odds
Race  Gender  Age
Young Black male (reference)
Young White male .267** .100 1.306
Young Black female .668*** .148 1.951
Young White female .577* .224 1.781
Older White male .426** .141 1.530
Young White male (reference)
Young Black female .228* .118 1.276
Young Hispanic male (reference)
Young Black female .495* .218 1.640
Young White female (reference)
Older Black male .540* .238 0.583
Middle-age Black male .483* .238 0.617
Young Black female (reference)
Middle-age Black male .574** .168 0.563
Middle-age White male .533** .202 0.587
Older Black male .350*** .168 0.532
Middle-age Black male
Old White male .331* .160 1.392
Old Black male
Old White male .388* .159 1.474
Note. SE ¼ standard error.

versus jail than Black male defendants. There was no significant difference between
Hispanic males and Black males in the probation versus jail decision. The only other
significant difference in odds of probation over jail was with Hispanic males and
Black females, with Black females having greater odds of receiving probation versus
jail than Hispanic males. It appears, therefore, that Black males are the least likely to
receive probation over jail, while Black females are the most likely to receive pro-
bation over jail. None of the race, ethnicity, and gender variables were significant in
the decision between prison and jail.
Table 4 displays the results when race, ethnicity, gender, and age interactions were
examined for the decision to incarcerate. For the sake of brevity, only the significant
coefficients are presented. When young Black males were the reference category,
young White males, young Black females, young White females, and older White
males had significantly increased odds of receiving probation as opposed to jail.
Young Black females were also more likely to receive probation than young White
males, young Hispanic males, middle-age Black and White males, and older Black
males. Young White females had greater odds of probation than older Black males and
middle-aged Black males. A racial difference was also found for older Black and
12 Race and Justice XX(X)

Table 5. OLS Regression Analysis.

Jail (n ¼ 1,967) Prison (n ¼ 957)

B SE b B SE b
Offender characteristics
Black .240** .071 .065 .053 .061 .029
Hispanic .116 .137 .016 .030 .111 .009
Gender .071 .097 .013 .028 .107 .008
Age .032* .016 .212 .005 .013 .069
Age2 .000 .000 .166 .000 .000 .058
Case characteristics
Prior felonies .029 .022 .030 .027 .015 .080
Prior misdemeanors .032* .009 .083 .003 .008 .015
Number of charges .355*** .055 .113 .054 .028 .057
Offense severity .247*** .030 .145 .061*** .007 .301
Pretrial status .639*** .066 .189 .214** .071 .093
Person offense .445*** .111 .081 .297*** .072 .193
Drug offense .911*** .085 .252 .248** .077 .134
Public order offense .609*** .093 .141 .092 .120 .025
Public safety offense .116 .123 .019 .028 .088 .012
Other offense .683*** .116 .118 .279 .147 .060
Trial .620* .310 .035 .523*** .082 .194
Attorney type .059 .079 .013 .269** .057 .143
Constant 1.502*** .326 3.033*** .264
R2 .308 .418
F 57.702*** 28.169***
Note. OLS ¼ ordinary least regression; SE ¼ standard error.
*p < .05. **p < .01. ***p <.001.

White males, with older White males having significantly greater odds of probation
than Black males. Overall, it appears that being young resulted in more lenient
treatment of female defendants. Being young, however, had the opposite effect for
Black males. Instead, young Black males were the least likely of the groups to receive
probation over jail. None of the race, ethnic, gender, and age interactions were sig-
nificant for the decision to sentence a defendant to prison versus jail.
The next set of analyses examined the length of jail and prison terms. As shown in
Table 5, Black and younger defendants received a significantly shorter sentence to
jail. None of these variables were significant in the decision between prison and jail. In
both models, the legal variables had the expected effects on the sentence length
decision. More prior misdemeanors and charges at sentencing increased jail sentences.
Increased offense severity, being detained prior to sentencing, and committing a crime
against person versus a property crime increased jail and prison terms. Defendants
who committed drug, public order, and other offenses had significantly shorter
jail sentences than those who committed property offenses. Defendants who
committed drug offenses received significantly shorter prison sentences than those
Freiburger and Sheeran 13

Table 6. OLS Regression Analysis Using Race/Ethnicity Gender Interaction Terms.

Jail Prison

B SE B SE
Race  Gender
Black male (reference)
White male .222** .076 0.511 .343
Hispanic male .398** .131 1.274*** .588
Black female .048 .118 0.257 .470
White female .398* .160 0.069 .646
White male (reference)
Hispanic male .177 .141 0.764 .633
Black female .173 .127 0.768 .525
White female .176 .166 0.442 .685
Hispanic male (reference)
Black female .350* .168 1.532* .698
White female .000 .199 1.274 .829
White female (reference)
Black female .350 .186 0.326 .762
Note. OLS ¼ ordinary least regression; SE ¼ standard error.
*p < .05. **p < .01. ***p < .001.

who committed property offenses. Finally, defendants who were found guilty at trial
received significantly longer sentences for both jail and prison, compared to those who
initially plead guilty.
Examination of the gender, race, and ethnicity interactions are shown in
Table 6. Compared to Black males, White males, Hispanic males, and White
females received significantly longer jail sentences. Black females received
significantly shorter jail sentences than Hispanic males. It appears, therefore,
that Black males and Black females received the shortest jail sentences. For
prison length, Hispanic males received significantly longer sentences than Black
males and Black females.
When the interaction of age was included, the results, shown in Table 7, indicate
that Hispanics aged 30–39 received significantly longer sentences than younger Black
males, younger White males, younger Black females, middle-age Black females,
middle-age Black males, middle-age White males, older Hispanic males, older Black
males, and older White males. Young Black males received significantly longer
sentences than older Black males. Overall, defendants in the middle-age category
received the longest sentences, with Hispanic males most commonly receiving a
longer sentence than other groups. In the prison length model, only males were
included due to small sample sizes in the female race and gender groups. The only
race, ethnicity, gender, and age interaction that was significant in the prison length
model was when young Black and White males were compared, with White males
receiving significantly longer sentences than young Black males.
14 Race and Justice XX(X)

Table 7. OLS Analysis with Race/Ethnicity, Gender, and Age Interactions.

Jail Prison

B SE B SE
Race  Gender  Age
Young Black male (reference)
Middle-age Hispanic male 0.805** .286
Old Black male 0.270** .098
Young White male .160* .079
Young White male (reference)
Middle-age Hispanic male 0.671* .294
Middle-age Black male 0.283* .123
Old Black male 0.405** .121
Young Hispanic male (reference)
Middle-age Black male 0.402* .186
Young White female (reference)
Middle-age Black male 0.500* .238
Older Black male 0.623** .237
Young Black female (reference)
Middle-age Hispanic male 0.915** .326
Middle-age Black male
Middle-age Hispanic male 0.953** .293
Middle-age White male
Middle-age Hispanic male 0.686* .316
Older Black male 0.389* .165
Middle-age Hispanic male
Middle-age Black female 1.00** .344
Older Hispanic male 0.806* .387
Older Black male 1.076*** .293
Older White male 0.688* .311
Middle-age White female
Older Black male 0.685* .284
Older Black male
Older White male 0.387* .154
Note. OLS ¼ ordinary least regression; SE ¼ standard error.
*p < .05. **p < .01. ***p <.001.

Discussion
The findings of the current research suggest that significant disparities in the treatment
of defendants in Milwaukee County exist. When the direct effects of race, ethnicity,
and gender were examined, Black and male defendants were more likely to be
incarcerated in jail as opposed to receiving a probation sentence than White and
female defendants. Examinations of race, ethnicity, and gender further revealed that
the racial disadvantage in this decision was restricted to male defendants. Consistent
with prior studies in other locations (e.g., Freiburger & Hilinski, 2013; Harrington &
Freiburger and Sheeran 15

Spohn, 2007), Black males were less likely to receive probation instead of jail. This
finding is consistent with the focal concerns perspective which suggests that Black
males are viewed as more dangerous and blameworthy, and their incarceration posing
less of a social cost to the community.
A gender advantage was found when Black and White females were compared to
Black men and when Black females were compared to Hispanic men. When compared
to White males, Black and White women were not afforded leniency. The finding that
Black females were the least likely to be jailed instead of receiving a probation
sentence is also consistent with prior research (Freiburger & Hilinski, 2013). This
finding further supports the argument of the importance of examining the interaction
of race and gender, as race and ethnicity have different impacts on the treatment of
males and females. When interactions with age were considered, being young
advantaged Black females but was actually a disadvantage for Black males in the
decision between probation and jail.
The decision to incarcerate a defendant in jail or prison was not significantly
influenced by race, ethnicity, or gender. Consistent with prior research (Freiburger
& Hilinski, 2013), the only factors found to be significant in this decision were
legal factors. These effects were all in the expected direction except for defen-
dants who chose to take their cases to trial. Those who took their cases to trial
actually had significantly lower odds of receiving prison over jail, but when
sentenced to prison they received sentences that were significantly longer. Prior
research has found that judges tend to penalize defendants for taking their cases to
trial by allocating more severe sentences to these defendants if they are found
guilty (see Lynch, 1994). This was found in the prison length decision but not in
the decision to send a defendant to prison.
Despite jail being considered a less severe sentence than prison, racial, and ethnic
disparities in the probation versus jail decision remains concerning. Those who
receive probation are allowed to remain in the community, making them better
equipped to maintain community, family, and professional relationships. Being
removed from the community and jailed puts these relationships at risks and can
increase the probability of recidivism as well as other negative social consequences.
When sentence length was examined, Black males actually received significantly
shorter sentences than all groups, except Black females. Given the finding that males
were more likely to receive jail, this is not unexpected as Black males are likely
receiving jail sentences for more minor offenses that warrant shorter jail sentences,
while other groups receive probation for these offenses. Despite sentences being
shorter, incarceration has negative impacts on defendants. Even short terms of
incarceration can disrupt multifaceted aspects of an individual’s life such as
employment, housing stability, familial relationships, and a defendant’s reputation in
the community. When age was considered, Hispanic defendants in the middle-age
category (30–39) received longer sentences to jail than almost every group (young
Black males and females, young White males, middle-aged Black females, middle-
age Black and White males, and older Hispanic, Black, and White males). In the
decision of prison length ,the only significant difference was between young White
16 Race and Justice XX(X)

and Black males, with White males receiving significantly longer prison sentences
(females were not included in this analysis).
From the data, it was not possible to fully explain the mixed findings produced in
this study. It is likely that different factors are driving each of these relationships. It is
possible that judges are correcting biases that exist in prosecutorial decisions. It is
further possible that much of the disparity is driven by pretrial release decisions. Being
incarcerated prior to sentencing had a large impact on not only incarceration decisions
but also on the length of incarceration decisions. If racial, ethnic, and gender biases are
present in this decision, it is possible that the disparity is then contributing to bias at
these later decision points.
In addition, the impact of being convicted through a trial instead of a guilty plea
had an inconsistent impact on sentences. The results suggested that those who were
found guilty through a trial received significantly longer sentences to jail and prison
than those who plead guilty. Conviction through trial was not significant in the
decision to sentence a defendant to jail as opposed to probation, but actually decreased
the odds of being sentenced to prison over jail. This is inconsistent with the length
decisions found in the current study and in some previous research (e.g., Freiburger &
Hilinski, 2013). It is possible that judges are less likely to sentence these defendants to
prison because prosecutors are overcharging, and the severity of the actual offense
often does not warrant prison time.

Limitations and Future Research

This study was limited to one urban county. Research should continue to examine
sentencing decisions in different court jurisdictions. Several of the results were similar
to previous studies; however, differences also exist. To impact policy and improve the
justice system, courts need findings from their own jurisdictions to identify unwar-
ranted disparities and determine what policy changes are necessary.
The field of sentencing research would also greatly benefit from future studies that
include additional variables theoretically relevant to sentencing. Previous studies have
speculated that leniency for Black females might be due to Black women having more
demanding child care responsibilities, yet few studies have included data to examine
this possibility (with the exception of Bickle & Peterson, 1991; Freiburger, 2011).
These data are not always available and when it is available it is laborious to collect.
Studies with these data, however, will contribute greatly to our understanding of
sentencing and the causes of racial, ethnic, gender, and age disparities.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.

Funding
The author(s) received no financial support for the research, authorship, and/or publication of
this article.
Freiburger and Sheeran 17

Notes
1. The analyses were also analyzed with incarceration lengths treated as count variables using
negative binominal regression. The results were not meaningfully different.
2. Bivariate correlations indicated that none of the correlations presented a concern in the
multivariate models estimated. Variance inflation factor (VIF) and tolerance diagnostics
also were examined for each model. The VIF values were all less than 4 and none of the
tolerance statistics were below .2, indicating that multicollinearity was not a salient concern
(Mertler & Vannatta, 2002).

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Author Biographies
Tina L. Freiburger is an associate professor and chair of the Department of Criminal
Justice at the University of Wisconsin–Milwaukee. She has published several journal
articles on racial and gender disparities in decision-making and juvenile justice issues.
Her recent publications have appeared in Feminist Criminology, Crime and Delin-
quency, and Youth Violence and Juvenile Justice.

Alyssa M. Sheeran is a doctoral student and research assistant in the Criminal Justice
Department at the University of Wisconsin–Milwaukee. Her research interests focus
on public perceptions of the police, juvenile justice, sentencing decisions in the
criminal justice system, and individual and neighborhood-level influences on recidi-
vism. She holds a master’s degree in Criminal Justice and a B.S. in Criminal Justice
from the University of Wisconsin–Milwaukee. Sheeran has worked on projects relat-
ing to juveniles’ perceptions of the police, elderly prisoner misconduct, gender, and
racial disparities in sentencing decisions, driving-impaired interventions, adult drug
treatment court, and veteran’s court. Sheeran has also presented at multiple regional
and national conferences.